There's no question that today's marketers are inundated with data. Despite this, many still struggle to understand the full customer journey - especially all the marketing interactions a consumer may havebeforethey take a conversion-type action like make a purchase, fill out a form or download an app. Getting insights into the end-to-end customer journey is […]The post Bringing Data to the Marketing Party? Make Sure You Know Your Type appeared first on Adotas.
As we've been discussing, this afternoon, the House voted both on Rep. Mimi Walters' bad amendment to attach SESTA to FOSTA, and then on the combined bill -- and both sailed through Congress. Somewhat incredibly, this happened even though the Justice Department weighed in with a last minute letter saying that the language in the combined SESTA/FOSTA is so poorly drafted that it would actually make it more difficult to prosecute sex traffickers, and also calling into question whether or not the bill was even Constitutional.You would think that with the DOJ pointing out these fairly fatal flaws with the bill, that perhaps (just perhaps), the House would delay voting on this. As noted last week, bringing the amendment to the floor without having it go through the House Judiciary Committee (as is supposed to happen), seemed to be the House's way of washing its hands of the bill, and tossing the issue back to the Senate. But rushing through a bill with huge implications is no way to make law. As Rep. Lofgren noted on the floor:
The justice department says in this letter that they believe any revision to define participation in a venture is unnecessary and in fact that the new language would impact prosecutions by effectively creating additional elements in fact they say the amendment will make it harder to prosecuteThere's a thing we get told in law school: Bad cases make bad law. One of the ways to avoid that is to have the committee process work through it. That didn't happen....
And thus, Walters' amendment prevailed 308 to 107 and then the combined (terrible) bill sailed through the whole House 388 to 25. Kudos the to the 25 Representatives who actually understand how CDA 230 works and why this bill is so bad, but it's depressing to think that it was just 25.In response to this, Senator Ron Wyden has already put out a statement scolding the House for failing to understand what they've just done:
History shows that politicians have been remarkably bad at solving technological problems. I have written laws in the past, including Section 230 of the Communications Decency Act and the Internet Tax Freedom Act, that have kept politicians and special interests from sinking the internet.This bill will only prop up the entrenched players who are rapidly losing the public's trust. The failure to understand the technological side effects of this bill - specifically that it will become harder to expose sex-traffickers, while hamstringing innovation - will be something that this congress will regret.I take a backseat to no one when it comes to fighting sex trafficking and locking up the monsters who prey on the defenseless. I have authored laws to support victims and provide ongoing funding paid for by those convicted of heinous crimes against children, and authored laws to improve the child welfare system to help prevent children from becoming victims in the first place. However, the bill passed today by the House will make it harder to catch bad actors and protect victims by driving this vile crime to shadowy corners of society that are harder for law enforcement to reach.
This is the perfect encapsulation of a broken Congress. They "did something" for the grandstanding feature alone. Lots of Congressional Representatives will now claim that they "voted to stop sex trafficking" or some such, without bothering to understand or care why this bill actually will harm the victims of sex trafficking, making it more difficult for law enforcement to go after actual traffickers, creating serious incentives for websites not to stop sex traffickers from using their platforms and not to help law enforcement, and (as a side effect) seriously undermining free speech on the internet.The bill now moves back to the Senate, which has already passed its version of SESTA out of Committee where Wyden put a hold on it. It appears likely that a vote will happen sometime soon on the bill, so now might be a good time to call your Senator and let them know that as good as this bill may sound from its title, its actual impact will be a total disaster.
A couple of weeks ago, Techdirt wrote about Marriott International kowtowing to China because of a drop-down menu that dared to suggest that Tibet might be a country. We noted that a newly-confident and increasingly aggressive China might well start finding more of these alleged "insults" to use as pretexts for asserting itself internationally. And sure enough, that's already happened again, this time with Mercedes-Benz. As a New York Times story explains, the German car maker posted an image of a white car parked on a beach, along with a quotation popularly ascribed to the Dalai Lama -- "Look at the situations from all angles, and you will become more open. #MondayMotivation" -- to its official Instagram account.Becoming "more open" by looking at things from this particular angle didn't go down at all well in China, where the authorities regard Tibetan veneration of the Dalai Lama as a threat to political stability in the region. According to the New York Times, the post provoked an "outcry" from Chinese internet users, many of whom pledged to boycott the Mercedes brand. It's hard to gauge to what extent Chinese citizens did this spontaneously, or whether some of those protesting online were part of the authorities' well-oiled Internet surveillance and propaganda machine. In any case, what mattered was that the Chinese government was not happy at all, and Mercedes-Benz realized that if it wanted to carry on selling its cars in China, it had better start apologizing quickly and deeply. This it did by posting to its official Weibo account, translated here by the Shanghaiist:
This morning, we noticed that our company's international social media had posted an extremely erroneous message. For this, we sincerely apologize.Although we deleted the post as soon as possible, we fully understand how it has hurt the feelings of people in this country, including our colleagues who work in the country. For this, we express our sincerest apologies.
The Chinese government evidently wanted to make the most of this new opportunity to humiliate a Western company. The People's Daily, the ruling Communist Party's official newspaper, went so far as to berate Mercedes-Benz thus in a headline (original in Chinese):
If you do like this, you are an enemy of the Chinese people!
What makes the situation even more absurd is that Instagram is blocked in China, and so in theory nobody in the country could even see the ad. As with the Marriott International story, it underlines that the Chinese government now believes it has a right to dictate what should happen outside its borders, as well as within them.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
We're going to kick off a series of spotlight articles on various 4GLs by offering a crash course on why you want a 4GL. Whether your challenge is integrating with new technologies, accelerating development time, embracing RAD, or working with bigger teams, 4GLs can help you build bigger, better, and faster applications.
As The Oscars Approach Get Out, Dunkirk, and LadybirdGenerate the Most Search Buzz. Special Spotlight: Black Panther Hitwise charted consumer searches for the best picture nominees over the last year, and Get Out, Dunkirk and Ladybird were the big winners in terms of generating online interest. Most of the best picture nominees were released in […]The post Oscars Buzz & Business appeared first on Adotas.
A week or so back, we discussed the Museum of Art and Digital Entertainment (MADE) calling on the Copyright Office to extend exemptions to anti-circumvention in the DMCA to organizations looking to curate and preserve online games. Any reading of stories covering this idea needs to be grounded in the understanding that the Librarian of Congress has already extended these same exemptions to video games that are not online multiplayer games. Games of this sort are art, after all, and exemptions to the anti-circumvention laws allow museums, libraries, and others to preserve and display older games that may not natively run on current technology, or those that have been largely lost in terms of physical product. MADE's argument is that online multiplayer games are every bit the art that these single-player games are and deserve preservation as well.Well, the Entertainment Software Association, an industry group that largely stumps for the largest gaming studios and publishers in the industry, has come out in opposition to preserving online games, arguing that such preservation is a threat to the industry.
“The proponents characterize these as ‘slight modifications’ to the existing exemption. However they are nothing of the sort. The proponents request permission to engage in forms of circumvention that will enable the complete recreation of a hosted video game-service environment and make the video game available for play by a public audience.”“Worse yet, proponents seek permission to deputize a legion of ‘affiliates’ to assist in their activities,” ESA adds.The proposed changes would enable and facilitate infringing use, the game companies warn. They fear that outsiders such as MADE will replicate the game servers and allow the public to play these abandoned games, something games companies would generally charge for. This could be seen as direct competition.
There is a ton of wrong in there to unpack. To start, complaining that MADE's request would allow them to replicate the gaming experience of an online multiplayer game does nothing beyond essentially repeating what MADE is requesting. The whole idea is that these games should be preserved for posterity so that later generations can experience them, gaining an understanding of the evolution of the industry. How could this be accomplished without libraries and museums making the online game playable? And how is that different than what these folks do for non-online games? With that in mind, further complaining that museums might ask for help from others to accomplish this task doesn't make a great deal of sense.As for the final complaint about these museums making these games playable when gaming companies normally charge for them is nearly enough to make one's head explode. Museums like MADE wouldn't be preserving these games except for the fact that these games are no longer operated by the gaming studios, for a fee or otherwise. What ESA's opposition actually says is that making older online games playable will compete in the market with its constituent studios' new online games. To that, there seems to be a simple solution: the game companies should keep these older online games viable themselves, then. After all, if a decade-old MMORPG can still compete with newer releases, then clearly there is money in keeping that older game up and running. Notably, game publishers aren't doing that. Were ESA's concerns valid, they surely would, unless they hate money, which they do not.What's ultimately missing from ESA's opposition is what exactly is different about these online games compared with non-online games that already have these anti-circumvention exemptions. The closest it gets is complaining that preserving these online games would require server content that game companies haven't made public in the past. Why exemptions for that should be different than the code for localized games so that emulators can run them is a question never answered. That ESA chose not to offer up a more substantive answer to that question is telling.
Two new bills have been introduced in the Kansas state legislature with the intent of forcing law enforcement agencies to turn over body camera footage in a timely manner. They appear to have been prompted by the family of a man shot and killed by police officers late last year. It took police 11 weeks to turn over footage of the incident. Even then, it wasn't as though the footage was given to the executor of Dominique White's estate. Instead, White's father was "granted access" to the the body cam footage, which means he was able to watch the video on police equipment at a police station by himself with no other surviving family members.This is the state of Kansas' current laws regarding body camera footage. Very few people are given access to footage and, with rare exceptions, the footage remains completely in the hands of law enforcement. The only people granted access to footage at this point in time are subjects of recordings, parents of minors who are subjects of recordings, attorneys for a recording subject, or a person's heir.These bills aim to change that. The Senate bill [PDF] would require law enforcement agencies to produce footage for these recipients within 24 hours of a request. It would also add to the list of viewers, albeit with an additional delay. Anyone requesting video footage would have access to it within 30 days if the recording contains use of force resulting in injury or death. Agencies would still be able to redact footage in certain instances (mainly to remove the name/face of an officer currently under investigation) but would have to remove redactions once this investigation concludes. And slow-rolling an investigation won't help police keep footage at least partially buried: the law says all redactions must be removed within 270 days.The House bill [PDF] speeds up that timetable. Both require a 24-hour turnaround for subjects of body cam footage, but the House bill would force law enforcement agencies to turn over video to anyone requesting it within five days of the use of force incident.Needless to say, law enforcement agencies aren't happy with the proposed laws. Critics from affected departments spoke up against the bill by insinuating citizens were too stupid to handle unredacted footage of use of force incidents.
Body cameras don’t have the same perspective as the officers, said Greg Smith, a special deputy/sheriff’s liaison with the Johnson County Sheriff’s Office.“If you’re looking for this to be some kind of panacea to fix police and community relations, this is not the bill,” he said.Olathe Police Chief Steven Menke said a body camera is a tool but “rarely tells the entire story.”“We cannot lose sight of the fact that police officers have the same due process rights as every other citizen,” he said.
Shorter law enforcement: trust cops, not your lying eyes. Yes, body cameras "rarely tell the entire story," but that objection is never raised when footage clears officers of wrongdoing or shows subjects apparently engaged in criminal acts. And cameras are not a panacea. But burying footage behind legislated barriers is about as far removed from a "panacea" as law enforcement can get.It's true a 24-hour turnaround time is extremely tight, especially if the responding agency doesn't have much practice handling camera footage and/or applying redactions. That being said, too long of a grace period for redaction just invites stonewalling, even when footage is edited and ready to go. Without hard limits on production, everyone's still going to be subjected to interminable waits to access body cam footage.The complaint by the local police union is even more nonsensical.
"If this bill becomes law, law enforcement agencies would be forced to disclose the video long before their criminal and/or administrative reviews are completed," said Blaine Dryden, president of the Kansas State Lodge of the Fraternal Order of Police. "Unquestionably, the disclosure with this much haste is not accompanied by any substantial factual context that a complete investigation provides."
Law enforcement agencies are Johnny-on-the-spot when it comes to delivering rap sheets, surveillance footage, questionable social media posts, or whatever else puts victims of excessive force in a bad light. But they're oh so reluctant to turn over footage showing officers engaged in questionable behavior. Somehow we're expected to wait for everything to get sorted out over the next several months-to-years before we're allowed to take a look at footage officers captured in public while performing their public duties.The clock is ticking on these bills and legislators pushing for the new laws claim they're being met with law enforcement stonewalling.
Sen. Molly Baumgardner, R-Louisburg, a supporter of the bill, said the issue of providing access to police recordings has been around the Legislature for at least three years, and she said opponents of the measure have so far been reluctant to negotiate.
If they can wait it out, the legislative deadline for bill passage will come and go with the bills still in the starting dock. That's only a few days away. Without forward progress, the bills will idle until the next session and may not be picked up again until next year.It's unrealistic to think the release of footage will single-handedly reform law enforcement agencies. But allowing them to maintain the opaque status quo will result in zero change whatsoever. Hopefully, at least one these bills will move forward before the deadline and start making its way towards the governor's desk.
AppsFlyeris has released the Mobile World Congress edition ofits Performance Index Report, which ranked the top media sources in mobile advertising across eight regions around the world during H2 2017. Report findings include: Google is gaining ground quickly on Facebook, but Facebook remains the #1 media source. The good news for other media […]The post AppsFlyer Performance Index Report appeared first on Adotas.
It's no secret that Valve's Steam platform is the dominant marketplace for PC video games. Much comes along with that status, including the strategies and metrics studios must employ to get their games noticed on Steam. One of the important metrics for recognition is Steam reviews. And it's not just the review scores themselves that are important, but actually getting reviews -- any reviews -- to begin with is a big deal.So it's no surprise that game studios strategize on how to get their games in enough customer hands to generate reviews. Still, one studio's strategy has massively backfired. Insel Games out of Malta recently released Wild Buster, it's latest title. Sadly, in the all important initial release window, the game was not generating enough reviews to result in a general review score on the game page. Those scores are often used by consumers to quickly decide whether a title deserves their attention at all and a lack of a score can indicate that the game isn't good enough to even warrant a look. Insel's CEO, Patrick Steppel, decided to address this with a strongly-worded email to his own staff insisting that they all buy the game and review it, despite having had a hand in making the game. If employees refused to do this, Steppel warned that it could mean that they would no longer have a job at the studio.
“I had [sent] an email earlier but I was told that some of you announced to colleagues that you do not want to make a purchase of the game and/or a review. Frankly, this leaves me pretty disappointed. Of course I cannot force you to write a review (let alone tell you what to write) - but I should not have to. Neglecting the importance of reviews will ultimately cost jobs. If WB fails, Insel fails, IME fails and then we all will have no job next year. So I am asking you either of do the following: buy the game and present me the receipt until Friday night for which (together with a claim form) you will be re-imbursed within 24h or explain to me tomorrow why you do not wish to do this. I would like to discuss this individually and privately with each of you and will follow up.”
Corresponding with the timing of this email was a deluge of reviews suddenly washing over the game's Steam page, all of them glowingly positive. This, as many of you will know, is a form of astroturfing and it's plainly unethical. The point of reviews is for Steam customers to get a sense of what other Steam customers think of a game so as to inform their purchasing decisions. It is not a place for those who made the game to surreptitiously fool customers into thinking a game is better than it is by posting reviews from a clearly biased source. For the CEO of a studio to suggest employees do this at the end of a pointed employment-gun is all the more galling.And, ultimately, ineffective, given that Valve has responded from pulling every single Insel Games product from its marketplace.
In a post last night on the Steam forums, a Valve representative wrote that as a result of this new information, the store has pulled all of Insel Games’ products. “The publisher appears to have used multiple Steam accounts to post positive reviews for their own games. This is a clear violation of our review policy and something we take very seriously. For these reasons, we are ending our business relationship with Insel Games Ltd. and removing their games from our store. If you have previously purchased this game, it will remain accessible in your Steam library.”
Laughably, Streppel has publicly admitted to sending out the email while also insisting that he will appeal Valve's decision. What the basis of that appeal could be, given his admission, is anyone's guess. Streppel also insists that he didn't mean to threaten anyone's job and that he has not punished any employee that refused to write a review or buy the game, although that kind of gaslighting likely won't find much purchase in a gaming public that doesn't look kindly upon this kind of subterfuge.So, the lesson is that game studios should take the efforts they would spend conniving over how to fool customers and just make great games instead. Otherwise, the backlash may be more than they can handle.
Another challenge of the NIT (Network Investigative Technique) warrant used by the FBI during its investigation of a dark web child porn website has hit the appellate level. A handful of district courts have found the warrant used invalid, given the fact that its reach (worldwide) exceeded its jurisdictional grasp (the state of Virginia, where it was obtained). That hasn't had much of an effect on appeals court rulings, which have all found the warrant questionable to varying degrees, but have granted the FBI "good faith" for violating the jurisdictional limits the DOJ was attempting to have rewritten (Rule 41 -- which governs warrant jurisdictional limits, among other things) to allow it to do the things it was already doing.Even though the FBI had to have known searches performed all over the world using one Virginia-based warrant violated Rule 41 limits, appellate judges have declared the FBI agent requesting the warrant wasn't enough of a legal expert to know this wasn't allowed. Two appeals courts have stated suppressing the evidence is pointless because the law changed after the jurisdiction limit violation took place. The appellate decisions have been troubling to say the least, providing further evidence that the good faith exception is the rule, rather than the outlier.The latest decision [PDF] dealing with the NIT warrant comes from the Third Circuit Appeals Court. It, too, finds the warrant questionable. And it states the government has agreed the warrant was not valid under Rule 41(b).
The Government conceded below that “[a]lthough Rule 41 does authorize a judge to issue a search warrant for a search in another district in some circumstances, it does not explicitly do so in these circumstances.” App. 91 (Government Br. in Opposition to Motion to Suppress) (emphasis added).
The opinion goes on to note the government, having admitted its warrant was bad, then argued it was good because it was apparently thinking of a different part of Rule 41 when it applied for a warrant, even though none of this thought made its way into the affidavit as words.
On appeal, however, the Government curiously has reversed course, and now contends that the NIT was in fact explicitly authorized by Rule 41(b)(4), which provides that a magistrate judge may “issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both.” Fed. R. Crim. P. 41(b)(4) (emphasis added).According to the Government, under this Rule, “the NIT warrant properly authorized use of the NIT to track the movement of information—the digital child pornography content requested by users who logged into Playpen’s website—as it traveled from the server in [EDVA] through the encrypted Tor network to its final destination: the users’ computers, wherever located.”
Wrong again, says the court, noting the disingenuousness of the government's goalpost move. (All emphasis added by me and not the court from this point forward.)
We need not resolve Werdene’s contention that the Government waived this argument because we find that the Government’s tracking device analogy is inapposite. As an initial matter, it is clear that the FBI did not believe that the NIT was a tracking device at the time that it sought the warrant. Warrants issued under Rule 41(b)(4) are specialized documents that are denominated “Tracking Warrant” and require the Government to submit a specialized “Application for a Tracking Warrant.” See ADMINISTRATIVE OFFICE OF U.S. COURTS, CRIMINAL FORMS AO 102 (2009) & AO 104 (2016). Here, the FBI did not submit an application for a tracking warrant – rather, it applied for, and received, a standard search warrant. Indeed, the term “tracking device” is absent from the NIT warrant application and supporting affidavit.
The court also helpfully finds that computer users have an expectation of privacy in their IP addresses and other identifying info housed in their computers. It points out the government obtained this directly from targets' computers rather than third parties, making this a Fourth Amendment search rather than a Third Party Doctrine case.But that's where the good news ends for the defendant. The appeals court says the warrant was invalid the moment it was issued, but that this can't be held against the FBI. It rationalizes its opinion this way: suppression of evidence is for deterrence, not for righting the government's wrongs. So, it's OK for the FBI to rely on an invalid warrant because the judge made the error approving it. The FBI was not wrong to rely on the warrant, even though it very likely knew its request violated Rule 41 jurisdictional limits. Then it arrives at this conclusion -- one reached previously by another appeals court:
More importantly, the exclusionary rule “applies only where it ‘result[s] in appreciable deterrence.’” Herring, 555 U.S. at 141 (quoting Leon, 468 U.S. at 909) (emphasis added). Thus, even though Rule 41(b) did not authorize the magistrate judge to issue the NIT warrant, future law enforcement officers may apply for and obtain such a warrant pursuant to Rule 41(b)(6), which went into effect in December 2016 to authorize NIT-like warrants. Accordingly, a similar Rule 41(b) violation is unlikely to recur and suppression here will have no deterrent effect.
In other words, because it's now impossible for the FBI to engage in this violation of Rule 41, there's nothing to be gained by suppressing the evidence. In essence, the court is saying that if the DOJ can get laws changed quickly enough to codify earlier statutory violations, defendants challenging evidence based on legal violations that occurred before the law was changed are shit out of luck. Compare and contrast this to civil rights lawsuits where the courts have awarded good faith to law enforcement for apparent rights violations because they occurred before such acts were declared unconstitutional by precedential opinions. It's "heads I win, tails you lose" in federal courts, thanks to the good faith exception.More cases will reach the appellate level but it hardly seems likely any of those will result in suppressed evidence for Playpen defendants. These findings will be reached despite most appellate judges declaring the underlying warrants void from the moment they were issued. Defendants asking for suppression are going to run into judges willing to forgive the FBI both before and after the fact, which means there's very little justice left in the justice system's tanks.
Everywhere you go, there's noise.Auditory noise, visual noise and so much mental clutter that it's hard to think, let alone really absorb what's being thrown at you. It's no wonder that advertising is becoming less effective and advertisers are turning to more aggressive tactics in order to keep their message visible to a public that […]The post Noise, Clutter, Screens& You (and your target audience) appeared first on Adotas.
Another paper has been released, adding to the current encryption discussion. The FBI and DOJ want access to the contents of locked devices. They call encryption that can be bypassed by law enforcement "responsible encryption." It isn't. A recent paper by cryptograpghy expert Riana Pfefferkorn explained in detail how irresponsible these suggestions for broken or weakened encryption are.This new paper [PDF] was put together by the National Academies of Science, Engineering, and Medicine. (h/t Lawfare) It covers a lot of ground others have and rehashes the history of encryption, along with many of the pro/con arguments. That said, it's still worth reading. It raises some good questions and spends a great deal of time discussing the multitude of options law enforcement has available, but which are ignored by FBI officials when discussing the backdoors/key escrow/weakened encryption they'd rather have.The paper points out law enforcement now has access to much more potential evidence than it's ever had. But that might not always be a good thing.
The widespread use of cloud storage means that law enforcement has another potential source of evidence to turn to when they do not have access to the data on devices, either because the device is unavailable or the data on the device is encrypted. Not all of this digital information will be useful, however. Because storage is cheap or even free, people keep all sorts of non-noteworthy electronic documents forever.
What's unsaid here is law enforcement should be careful what it wishes for. Encryption that allows government on-demand access may drown it in useless data and documents. If time is of the essence in cases where law enforcement is seeking to prevent further criminal activity, having a golden key may not move things along any faster. I'm sure the FBI and others would prefer access all the same, but this does point to a potential negative side effect of cheap storage and endless data generation.And the more access law enforcement has, the more chances there are for something to go horribly wrong on the provider's end.
How frequently might vendors be asked to unlock phones? It is difficult to predict the volume of requests to vendors, but a figure in the tens of thousands per year seems reasonable, given the number of criminal wiretaps per year in the United States and the number of inaccessible devices reported by just the FBI and Manhattan District Attorney’s Office. As a result, each vendor, depending on its market share, needs to be able to handle thousands to tens of thousands of domestic requests per year. Such a change in scale, as compared to the software update process, would necessitate a change in process and may require a larger number of people authorized to release an unlock code than are authorized to release a software update, which would increase the insider risk.
The paper also runs down stats provided by the FBI and the Manhattan DA's office. It notes the overall number of unlockable phones has continued to rise but points out these numbers aren't all that meaningful without context.
In November 11, 2016, testimony to this committee, then-Federal Bureau of Investigation (FBI) General Counsel James Baker reported that for fiscal year 2016, the FBI had encountered passcodes on 2,095 of the 6,814 mobile devices examined by its forensic laboratories. They were able to break into 1,210 of the locked phones, leaving 885 that could not be accessed. The information Baker presented did not address the nature of the crimes involves nor whether the crimes were solved using other techniques.[...]Although existing data clearly show that encryption is being encountered with increasing frequency, the figures above do not give a clear picture of how frequently an inability to access information seriously hinders investigations and prosecutions.
It goes on to note that we may never see this contextual information. Any attempt to collect this data would be hindered by law enforcement's reluctance to provide it, and there are currently no visible efforts being made by agencies to determine just how often encryption stymies investigations. Whatever would actually be reported would be tainted by subjective assessments of encryption's role in the investigation. However, without more context, the endless parade of locked device figures is nothing more than showmanship in service to the greater goal of undermining encryption.The paper helpfully lists several options law enforcement can pursue, including approaching cloud services for content stored outside of locked devices. It also points out the uncomfortable fact that law enforcement doesn't appear to be making use of tools it's always had available. One of these options is compelled production of passwords or biometric data to unlock phones. While the Fifth Amendment implications of compelled password production are still under debate, it's pretty clear fingerprints or retinas aren't going to receive as much Constitutional protection.On top of that, there's the fact that a number of device owners have already voluntarily provided copies of encryption keys, and these can likely be accessed by law enforcement using a standard warrant or an All Writs Act order.
[M]any storage encryption products today offer key escrow-like features to avoid data loss or support business record management requirements. For example, Apple’s full disk encryption for the Mac gives the user the option to, in effect, escrow the encryption key. Microsoft Windows’ BitLocker feature escrows the key by default but allows users to request that the escrowed key be deleted. Some point to the existence of such products as evidence that key recovery for stored data can be implemented in a way that sensibly balances risks and benefits at least in certain contexts and against certain threats. In any case, data that is recoverable by a vendor without the user’s passcode can be recovered by the vendor for law enforcement as well. Key escrow-type systems are especially prevalent and useful where the user, or some other authorized person such as the employer, needs access to stored data.
The report also claims law enforcement "had not kept pace" with the increase of digital evidence. It posits the problem is a lack of funding and training. Training is almost certainly a problem, but very few law enforcement agencies -- especially those at the federal level -- suffer for funding or expertise. This might be due to bad assumptions, where officials believed they would always have full access to device contents (minus occasional end user initiative on encryption). When it became clear they wouldn't, they began to seek solutions to the problems. This put them a few steps behind. Then there are those, like Manhattan DA Cy Vance and FBI Director Chris Wray, who are putting law enforcement even further behind by pushing for legislation rather than focusing their efforts on keeping officers and agents well-supplied and well-trained.While the report does suggest vendors and law enforcement work together to solve this access "problem," the suggestions place the burden on vendors. One suggested fix is one-way information sharing where vendors make law enforcement aware of unpatched exploits, allowing the government (and anyone else who discovers it) to use these vulnerabilities to gain access to communications and data. It's a horrible suggestion -- one that puts vendors in the liability line of fire and encourages continued weakening of device and software security.The report also points out the calls for harder nerding have been at least partially answered. The proposed solutions aren't great. In fact, one of them (running lawful access keys and software update keys through the same pipeline) is terrible. But it's not as though no one on the tech side is trying to come up with a solution.
Several individuals with backgrounds in security and systems have begun to explore possible technical mechanisms to provide government exceptional access. Three individuals presented their ideas to the committee.• Ernie Brickell, former chief security architect, Intel Corporation, described ways that protected partitions, a security feature provided by future microprocessor architectures, could be used to provide law enforcement access to devices in their physical possession, provide remote access by law enforcement, or provide key escrowed cryptography for use by applications and nonescrowed cryptography for a set of “allowed” applications.• Ray Ozzie, former chief technical officer and former chief software architect, Microsoft Corporation, argued that if a user trusts a vendor to update software, the user should be able to trust the vendor to manage keys that can provide exceptional access. He proposed that this extension of the trust model used for software updates could be used to provide government exceptional access to unlock mobile devices. Ozzie also provided the committee with materials describing how this approach could be extended to real-time communications such as messaging.• Stefan Savage, professor of computer science and engineering, University of California, San Diego, described how phone unlock keys could be stored in hardware and made available via an internal hardware interface together with a “proof-of-effort” lock that together would require physical possession and a time delay before law enforcement could unlock a device.
The report points out these are only suggestions and have yet to be rigorously examined by security professionals. But their existence belies the narrative pushed by the FBI in its search for a federal statutory mandate. There are experts trying to help. Unfortunately, every solution proposed is going to require a sacrifice in device security.The problem is complex, if you choose to believe it's a problem. It may be troublesome that law enforcement can't have access to device contents as easily as they could five years ago, but it's not the threat to public safety anti-encryption enthusiasts like Chris Wray and Cy Vance make it out to be. Encryption use has gone up while crime rates have remained steady or decreased. The emphasis on cellphones as the ultimate investigative goldmine is misplaced. Plenty of options remain and law enforcement spent years solving crimes without having one-stop access to communications and personal documents. An ancient discovery known as "fire" has put evidence out of reach for hundreds of years, but no one's asking the smart guys at Big Match to come up with a solution. Things are harder but they're not impossible. What is impossible is what Wray and others are asking for: secure compromised encryption.
When you write regularly about lawsuits, you learn very quickly that not all court systems are equal when it comes to allowing modern access to public filings and records. The country is a veritable panoply of an access spectrum, with some districts offering modern e-filing systems and websites to review documents, while other districts are far more antiquated and restrictive. That said, it's hard to imagine a county court system more backwards than that of Chicago's Cook County.
Every workday, attorneys enter criminal courtrooms across Cook County, put away their smartphones and operate in a world that their grandparents would have recognized: accordion-style Manila folders to hold paper documents, handwritten orders for judges to sign, even carbon paper to make copies of the paper filings.“God help us all if the carbon didn’t take,” said defense attorney Alana De Leon, who had never used the outdated copying method — invented more than two centuries ago — before setting foot in a West Side branch court a few years ago.
While the Tribune article notes that these antiquated techniques result in derisive jokes from the attorneys forced to use them, the reality is that they are no laughing matter. The article tells the story of a woman looking for filing information for her boyfriend's criminal court case and was forced to travel 14 miles just to find out what charges her boyfriend was facing. And this sort of thing isn't reserved for the lay public. Criminal defense attorneys must also make a similar trek just to find out the basic case information for any clients they may take on in Cook County as well. In the surrounding counties, this information would be available via e-filings via an internet connection. In Cook County, home to the third largest city in the union, its all physical filings and carbon copies.Circuit Court Clerk Dorothy Brown, in charge of this love letter to the days of robber barons, does not want to hear you blame her for any of this, however.
Circuit Court Clerk Dorothy Brown bristled at the suggestion that her office has been slow to adapt to the internet age, telling the Tribune in an hourlong interview last week that a complete overhaul of the criminal case management system is expected to be completed by March 2019. Brown spoke of an “interactive” system in which much of the work performed by attorneys and judges in the courtrooms could be done electronically. Brown said her ultimate goal is to end the reliance on ink and paper.
Dorothy Brown, Chicago’s elected court clerk, filed her appeal notice this week, challenging a ruling in early January by U.S. District Judge William Kennelly. The judge found the First Amendment prohibits the clerk from withholding new efiled complaints, a regular source of news, from the press corps. He gave the clerk 30 days to provide access.She made no move to comply and continues to argue that she must first screen the filings for confidentiality. In his 16-page opinion, Kennelly found that argument belied by a number of effective alternatives available to the clerk.
It's moves like that which create the impression that the lack of transparency that comes along with Cook County's laughably anachronistic records systems is a feature rather than a bug. Cook County has long been a place where county and city officials have played a game of subterfuge with the press and the public, hiding legal machinations as well as actions taken by the city, such as million dollar payouts to the families of victims of police shootings. Making the court system as opaque as possible for as long as possible seems to be the goal.Brown, of course, insists otherwise and blames the state Supreme Court and Chief Judge Timothy Evans for Cook County's woes.
Brown said her hands have been tied by the Illinois Supreme Court dragging its feet in allowing e-filing statewide in criminal cases for the first time just last year. She also blamed Chief Judge Timothy Evans’ office for blocking her from making basic docket information available online for criminal cases.In an email, however, Evans’ spokesman, Pat Milhizer, denied Brown’s claim, saying his office would consider any such proposal from the circuit clerk.
Many will say this all smells of classic Chicago machine politics. And, in many respects, it certainly comes off that way. The suburban counties all have modern e-filing systems in place, after all, including several rural counties that don't have nearly the breadth of resources afforded to Cook County. What should be kept top of mind, however, is the tax all of this puts on the public and its interest in justice in the county. Going back to defense attorney De Leon and the use of technology as outdated as carbon copy:
“To a certain extent ... the lack of transparency kind of is the ugly product of the old system,” De Leon said. “I don’t know if it’s necessarily on purpose — to keep this information away from the average citizen — but it certainly is a consequence of that.”
And no amount of CYA or finger-pointing should distract anyone from the obvious reality that the public is not being well-served by the Cook County court filing system.
Shareablee Releases 2017 Social Video Rankings for Branded Content: BuzzFeed, Turner, NBA lead video engagement, Adult Swim tops TV Networks Shareablee Inc. today released social data ranking branded video creators in 2017, which revealed strong engagement for branded content published by top U.S. media publishers on Facebook. The top 50 media companies generated more than […]The post 2017 Social Video Rankings for Branded Content From Shareablee appeared first on Adotas.
Some research [PDF] has emerged indicating handing officers extra rights results in more citizen complaints. This may seem to be of the "water is wet" research variety, but there's no reason to shrug this off. While most of us can infer that shielding officers from the consequences of their actions would naturally result in increased misconduct, almost all evidence to date has been anecdotal. (h/t Marginal Revolution)University of Chicago researchers were given the perfect chance to weigh the addition of a collective bargaining agreement against year-to-year complaint totals. Thanks to a 2003 Florida state supreme court decision, Florida sheriff's deputies were allowed to unionize, finally joining their police department counterparts. This gave the researchers a dividing line for a before and after comparison. The results were unsurprising.
We construct a comprehensive panel dataset of Florida law enforcement agencies starting in 1997, and employ a difference-in-difference approach that compares sheriffs’ offices and police departments before and after Williams. Our primary result is that collective bargaining rights lead to about a 27% increase in complaints of officer misconduct for the typical sheriff’s office.
That's an impressive jump and it can be tied to the addition of a collective bargaining agreement. The union's bargaining power secured a lengthy list of extra rights for deputies. While due process should be afforded to everyone, the version of due process citizens make do with contains none of these perks and protections.
[F]lorida provides by statute a Law Enforcement Officer Bill of Rights (“LEOBOR”), which includes a variety of procedural protections for officers facing disciplinary investigations. One provision gives such an officer the right to “be informed of the nature of the investigation before any interrogation begins,” and to receive “all witness statements . . . and all other existing evidence, including, but not limited to, incident reports, GPS locator information, and audio or video recordings relating to the incident under investigation, . . . before the beginning of any investigative interview of that officer” (F.S.A§ 112.532(1)(d)). That is particularly generous given another requirement that “[a]ll identifiable witnesses shall be interviewed, whenever possible, prior to the beginning of the investigative interview of the accused officer” (id.).
And that's not even the whole list of additional "due process" goodies Florida deputies received.
[S]ome Florida CBAs give law enforcement officers the right to challenge any discipline the local government seeks to impose through arbitration or other administrative review, thus depriving the government of the power to make independent disciplinary decisions. Other rights include a time limitation on internal disciplinary investigations, expungement of old records even when the officer is found to have engaged in misconduct, and inspection of investigation files prior to a disciplinary hearing… [A]ll of these additional procedural rights raise the cost of terminating misbehaving officers and thereby lower deterrence.
The researchers note the conclusions aren't definitive. There's no control group to observe and it's tempting to let correlation infer causation. But the research is as thorough as it can be, given the limited dataset. Law enforcement agencies closely guard internal documents on police misconduct. In some states, public records laws make it illegal to release any of these files to the public, forcing researchers to work blind.But this paper does show there's something wrong with union agreements and has the math to back up the seemingly obvious conclusions. When you give people with power more power and less accountability, abuse is usually the result. Whether the union agreements are responsible for all of the 27% jump in complaints is debatable, but the numbers show the agreements have made policing worse, rather than better.
Last year we wrote about a bizarre and troubling DMCA case involving the print-on-demand company Zazzle, in which the judge in the district court bizarrely and wrongly claimed that Zazzle lost its DMCA safe harbors because the allegedly infringing works were printed on a t-shirt, rather than remaining digitally (even though it was the end user using the infringing work, and Zazzle's system just processed it automatically). To add insult to injury, in November, the judge then issued a permanent injunction against Zazzle for this infringement.However, it appears that no one is more troubled about this permanent injunction issued by Judge Stephen Wilson... than Judge Stephen Wilson.In early February, Wilson released a new order reversing his earlier order and chastising himself for getting things wrong.
The Court finds that there is a manifest showing of the Court's failure to considermaterial facts presented to the Court because the Court did not provide any justification for thepermanent injunction.
Yes, that's the judge chastising himself for not providing the necessary justification for an injunction after finding Zazzle to not have safe harbors (some of the background here involves a question about which rules -- federal or local -- the court should be using to reconsider the earlier ruling, which isn't that interesting). Unfortunately, Wilson doesn't go back and revisit the DMCA safe harbors question -- this new ruling just focuses on why he was wrong to issue a permanent injunction after finding that the DMCA safe harbors didn't apply.For that, the court notes (correctly, this time!) that under the Supreme Court's important MercExchange standard, courts should be careful about issuing injunctions for infringement, and that the plaintiffs need to show irreparable harm and that other remedies aren't more appropriate (and that an injunction won't cause greater harm to the public). Here, the plaintiff failed to do all of those -- and somehow the court missed it.In addition, the court does note that it never even considered the question about whether the artwork that is displayed on Zazzle's website, but not printed on t-shirts, still gives Zazzle safe harbor protections -- and the injunction would have applied to those works too, even though they might have been protected under the DMCA:
Plaintiff's proposed permanent injunction was ambiguous and went beyond the issues attrial, facts which the Court did not consider when it granted the initial motion for a permanentinjunction. Before trial, the Court never decided whether Zazzle had a viable DMCA defense asto images only displayed on Zazzle's website and never physically manufactured. Dkt. 81.Plaintiff withdrew its claims as to such display-only artworks prior to trial, so the issue was nottried. Dkt. 110 at 2:11-25. As such, it is unclear whether the injunction applies to both themanufacture and distribution of physical goods, or also to display of images on the Zazzlewebsite. It is also unclear if Zazzle must take reasonable steps to address the display of imageson its website as well as its manufacture of products. The Court did not consider these materialfacts in determining the scope of the permanent injunction; upon reviewing these facts, theproposed injunctions go beyond the issues at trial.
It's good that the court has realized its own mistakes and fixed them -- though it would be nice if it went further to the point of recognizing the problems of saying that by printing an image on a physical good the DMCA protections disappear.But, really, reading this new ruling, you almost (almost) feel bad for Judge Wilson as he complains about Judge Wilson's failings in this case:
The Court recognizes that it failed to consider material facts in granting the permanentinjunction in October 2017. The Court also recognizes that it provided no rationale for thepermanent injunction, manifestly showing the failure to consider such facts. Upon consideringthose facts, the Court finds no basis for a permanent injunction in this matter.
Don't be too hard on yourself, Judge. Admitting your mistakes is the first step.
Eyeview, an outcome-based video marketing company, announced a guaranteed brand safety solution that specifically addresses the environments in which they run their personalized video marketing campaigns. This comes on the heels of its late 2017 announcement of a 100% guaranteed verification solution that addressed the growing concerns of marketers.Eyeview is leveraging real-time, pre-bid technology from […]The post Eyeview Announces Guaranteed Brand Safety Solution appeared first on Adotas.
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The Basics of Chrome’s New Ad-Filtering Program It is not a universal ad-blocker. It targets sites that allow four types of desktop ads and eight types of mobile ads that violate the standards established by the Coalition for Better Ads.On desktops: Pop-Up Ads Auto-Playing Video with Sound Prestitial Ads with Countdown Large Sticky Ads […]The post Electronic Frontier Foundation & Others Weigh in on Chrome Ad Filter appeared first on Adotas.
Ten years ago, Techdirt was warning about the hype surrounding the concept of "cyberattacks", and after that "cyberwar", both of which were routinely presented in apocalyptic terms. As we now know, the real online battles are being fought much more subtly in the form of low-profile foreign organizations subverting nations in sophisticated ways. Unlike the predicted take-downs of an entire electricity grid, these kind of attacks by foreign states and their proxies have already happened, and with troubling effects.Governments have a responsibility to consider all possible attacks that may be conducted via the Internet, which means that drawing up policy documents in the field is important. The French government has just published its "Revue stratégique de cyberdéfense (pdf)" -- that is, a Strategic Review of Cyberdefense. It was written by the General Secretariat for Defense and National Security, which operates under the authority of the French Prime Minister, and assists the head of government in designing and implementing security and defense policies. It's extremely thorough and well worth reading, but it's also rather long (and in French). Fortunately, Lukasz Olejnik has put together a post discussing some of the main highlights of the document, which is much shorter -- and in English. As he notes, in France, cyberdefense and cyberoffense are two separate domains, and the strategy document lays out six main approaches to the former: prevention, anticipation, protection, detection, attribution, and reaction (remediation). On the offense side:
France strongly opposes giving private companies the rights to retaliate following a cyberattack. In the French view, such actions would constitute a point of instability in cyberspace. Especially when considering retaliation against actors located in a different state. France wants to put forward the issue of hack-back on the international level.Notable thing. The fact that the strategy mentions these concepts should probably be interpreted as an indirect response to the ideas discussed in the US, where certain proposals considered giving companies the powers to hack-back.
As far as offensive actions are concerned, the review may not want companies to unleash hack-backs after an online attack, but it does want to keep that option open for the French authorities:
Annex 7 considers retaliatory actions following a cyberattack. Although the text points out that such actions should be considered provided that all the other approaches (prevention, cooperation, negotiation) fail, it acknowledges that a response can be made using cyber or non-cyber means. The strategy also highlights that major cyberattack can be interpreted as an armed aggression, in line with the Article 51 of Charter of United Nations.
Olejnik points out the following interesting idea from the document:
France apparently suggested a desire to put the security liability in hands of product suppliers. In other words, making companies responsible for the security of products they put on the market -- as long as the products are commercially available. The strategy then mentions that one of the solutions could be to release source code and documentation after an end of support date. The strategy itself mentions taking this discussion to the international level.
France's Strategic Review offers a good starting point for thinking about these issues. It would be great if somebody could translate it into English for even wider appreciation.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
It shouldn't take an appeals court to reach this conclusion, but that's the route taken most frequently by people challenging their convictions. Former sheriff's deputy Matthew Corder doesn't want to serve time after being convicted of depriving Derek Baize of his constitutional rights, and so we've ended up at the Sixth Circuit Court of Appeals. (h/t Sixth Circuit Blog)This all stems from a "contempt of cop" incident. Baize returned home one night to find Deputy Corder parked in his parking spot in front of his home. Baize asked what was going on, only to be told to "mind his own business." Baize then asked the deputy to move his car so Baize could park in front of his house. The deputy said he'd move his car "when he was ready."Nonplussed by the behavior of this supposed public servant, Baize told the deputy to "fuck off." Deputy Corder asked for clarification. Baize responded: "I did not stutter. I said 'fuck off.'" Baize then walked into his house. Corder claimed he yelled for Baize to stop. Baize said he didn't hear this. It really doesn't matter. Citizens are under no legal obligation to engage in conversations with law enforcement officers. The deputy's testimony indicates Baize wasn't committing any crime nor was he wanted for a suspected criminal act when he walked away from the yelling deputy.Baize went into his house. The deputy followed. He banged on the door and told Baize to come outside. Baize refused, again well within his rights. Baize also pointed out Corder might want to get his paperwork in order if he wanted to set foot in the residence. The following was all caught on Corder's body camera:
Baize opened his front door but left his screen door closed. Defendant opened Baize’s screen door and told Baize to come outside “or there are going to be issues.” Baize repeatedly refused, saying that defendant needed a warrant, but defendant responded that he did not “need no warrant.” Defendant told Baize that “right now you’re out here hollering at me and you ran in there, which means there’s exigent circumstances.” Baize again refused to come outside. Defendant reached inside Baize’s home to grab Baize, who braced himself against his doorjamb and said “you are not allowed in my house.” Defendant then entered Baize’s home, grabbed Baize by the back of the neck, and began to arrest him. Defendant’s fellow deputy, Billy Allen, arrived and assisted with the arrest. Defendant tased Baize into submission and completed the arrest.
Corder was wrong multiple times during this interaction. He did need a warrant to enter the residence. Given the circumstances, it seems highly unlikely he could have obtained one, having only the probable cause of being disrespected while parked in someone else's driveway. He was also wrong about the circumstances. There's nothing "exigent" about someone entering the home where they live, even if there's a law enforcement officer on the lawn trying to find some way to regain control of the situation.Nevertheless, Corder entered the home and arrested Baize, ringing him up on the two bullshit charges: fleeing (in the second degree) and resisting arrest. Baize was nailed with $1500 cash bond. The judge refused to allow an unsecured bond because Baize had been arrested for "evading" the deputy. Baize couldn't afford the full $1500 and spent two weeks in jail. During that stay, he lost his job.On top of that, the prosecutor and Baize's public defender agreed on an order of dismissal (without Baize's knowledge) stipulating that he agreed there was probable cause to arrest him for these charges. This was presented to the judge as something Baize had agreed to, even though it obviously lacked Baize's signature.Following all of this, Deputy Corder was indicted by a grand jury and convicted on both counts after a four-day trial. Corder appealed his conviction, raising questions about the sufficiency of evidence against him as well as jury instructions regarding the Fourth Amendment and the physical boundaries of residences protected under this amendment. Corder asserted Baize's decision to answer the door after he began knocking on it somehow generated probable cause for a fleeing/evading arrest. The Sixth Circuit Appeals Court [PDF] doesn't buy it.
[W]e reject defendant’s theory that the fifth element — “in fleeing or eluding the person is the cause of, or creates a substantial risk of, physical injury to any person” — was satisfied when Baize resisted arrest after returning to answer the door. For defendant to have had probable cause to arrest Baize for fleeing and evading, he must have had probable cause to believe that all of the elements of the crime were satisfied at the moment he sought the arrest. Wesley v. Campbell, 779 F.3d 421, 429 (6th Cir. 2015). By defendant’s own account, however, the fifth element — Baize’s creation of the risk — was not satisfied until after defendant initiated the arrest and Baize physically resisted. See Trial Tr. vol. II at 160:11-161:5 (defendant admits that he did not make the decision to arrest until “we were trying to bring [Baize] out [and] he resisted”) (PageID # 832-33); Def. Br. at 18 (“The substantial risk of injury occurred when Baize resisted arrest . . . .”). It is therefore impossible, under defendant’s theory, that defendant had probable cause to believe Baize had met all of the elements of fleeing and evading when defendant made the decision to arrest.
As for his argument that he did not cross the threshold to effect the arrest (or, conversely, that circumstances allowed him to enter the home without a warrant), the appeals court points to the deputy's own body camera footage as evidence of Corder's Fourth Amendment violations.
Defendant’s body camera shows Baize open his inner door, leaving the screen door shut. Defendant was unable to cross the threshold and touch Baize without opening the screen door himself (which he did), and all the while Baize remained several feet removed from his threshold, inside of his home. Baize was not exposed to the same degree of public view, speech, hearing, and touch as though he was on his porch.
As to the allegedly faulty jury instructions, the court has this to say:
Defendant’s proposed jury instruction is also legally flawed, as it incorrectly suggests that the hot-pursuit exception to the warrant requirement applies any time a suspect retreats into his home, no matter the circumstances…Even if defendant’s proposed instruction contained a properly limited definition of the hot-pursuit exception, defendant fails to explain how the exception applied to his decision to enter Baize’s home. In Kentucky, second-degree disorderly conduct is a misdemeanor, Ky. Rev. Stat. § 525.060(2), and there was no physical evidence of disorderly conduct that Baize could have destroyed.
In 1997, when Corder was an officer with the Louisville PD, a man named John Dennis Wilson accused him of pepper-spraying him in the face as he sat handcuffed in the back of a police car. Notably, Corder’s police report didn’t mention any pepper spray, and he failed to file a use-of-force report in violation of department policy. After Wilson sued him in federal court, Corder admitted everything. The city settled with Wilson for $15,000 ($22,500 in 2016 money). Corder was not punished.On New Year’s Day, 1998, Corder arrested Adrian Reynolds, 34, who was wanted on a domestic violence charge. When other officers arrived on the scene, they found Reynolds with a broken face and Corder’s uniform soaked in blood: Corder had repeatedly beaten Reynolds in the head with his fist and flashlight. An internal affairs investigation cleared Corder, though the arrest made the news when prison screws beat Reynolds to death six days later.Also in January, 1998, Corder was sued by 36-year-old Gary Branham after Corder punched him in the face and pepper-sprayed him while moonlighting as security for an amateur boxing tournament. Although Corder hit Branham with a number of charges, including disorderly conduct, they were all dropped when Corder failed to appear at Branham’s preliminary hearing. Branham’s suit was resolved when a jury found in favor of Corder and the city. Corder was not punished.In October, 2002, Corder pulled a gun on and arrested a man for trying to repossess Corder’s SUV. This earned him his first trip to criminal court. According to the Louisville chief of police, Robert White, who fired Corder in 2003, Corder tried to make a deal with the repo company: in exchange for releasing the arrested worker, they’d let him keep the car.
This history -- along with Corder's history of lying to police investigators about his misconduct -- forms the basis of Corder's Fifth Amendment argument. Corder believed the jury was unfairly prejudiced when his past lies to police departments he worked for were brought up during cross-examination. The court denies Corder on this one as well, pointing out jurors had every right to know whether the officer on the stand was a trustworthy person.
Defendant argues that permitting cross-examination concerning his lies to internal affairs investigators in 1991 and 1998 violated both his Fifth Amendment right against self-incrimination and Federal Rule of Evidence 608(b). (Def. Br. at 34.) Over defendant’s objection, however, the district court permitted the government to elicit defendant’s testimony admitting these lies. The district court based its ruling on Brown v. United States, 356 U.S. 148 (1958), concluding that defendant’s testimony about his own truthfulness had opened the door to such cross-examination.[...]On the record before us, as well as the authority offered by defendant, we conclude that the district court did not abuse its discretion in ruling that defendant waived his Fifth Amendment right as to his prior statements to police investigators. Defendant’s belief in the veracity of his charges against Baize was a chief issue in the case against him, and he voluntarily took the stand to vouch for that belief. Evidence of defendant’s willingness to lie to other police departments to protect himself from allegations of misconduct is relevant to, and probative of, whether he would lie to the Bullitt County Sheriff’s Office for the same general purpose.
Matthew Corder swings and misses on all arguments. This means he'll head back to prison to serve the remainder of his 27-month sentence. He should count himself lucky. He was facing a possible eleven years for both counts. With any luck, Corder's imprisonment will serve as a cautionary tale for officers who think they can arrest people just because they feel they haven't been shown the respect they think they deserve. If a cop wants to tell you to "mind your own business" when he's parked in your driveway, you should feel free to tell him to "fuck off" without worrying about losing your job and your freedom.
Time and time again, courts remind officers of the law don't actually have to know the law to enforce the law. Yes, that's how it all works out for citizens, who are just as frequently reminded ignorance of the law is no excuse. This has lead to the prevalence of pretextual stops where minor traffic violations (that may not even be violations) are used to initiate long conversations with law enforcement officers with the end goal of obtaining consent for a search or to bring a drug dog onto the scene.Qualified immunity, along with the good faith exception, have allowed an untold amount of law enforcement abuse. This has completely skewed judicial perception, turning law enforcement into noble fools and raising expectations of citizens' legal knowledge to that of seasoned criminal defense lawyers. Here's how occasional Techdirt contributor Andrew Norton breaks down the current state of judicial affairs:
2005, when [Tasers] were still being introduced to law enforcement at large, was a bad year for taser-victims, but not cops. In a California case, Bryan v. McPhearson, the court decided the officer’s actions qualified under the doctrine of qualified immunity (cops will only be responsible for excessive force if they act in a way that is so unreasonable any cop would have known such conduct was against the law – basically acting criminally) Since ‘the law on taser police brutality’ was still evolving when the incident happened in 2005 the cop should get a break from liability. You read that right, because no-one had told the cop, he didn’t have any notion of right and wrong. Ignorance is an excuse, if you wear the badge.It’s this that characterizes many police brutality and excessive force cases. On one hand the police officers are professionals dedicated to knowing and enforcing the law, when they’re on the prosecuting side, their word is solid and their testimony is unquestionable. However if they’re a defendant, they’re amateurs who don’t know the law, can’t tell right from wrong, and whose training and instincts are so poor, that they can’t be held responsible for decisions made when doing their job because they have to do them quickly.
That's the ugly reality. Things that seem obvious to citizens are somehow inscrutable to police officers with years of legal training and, quite often, a degree in criminal law. Yet another "case in point" is this recent Fourth Circuit Appeals Court decision, in which something that seems obviously wrong is given a judicial hand-wave because the obvious wrong had not been "clearly established" by these judges in this circuit dealing with a carbon copy of these circumstances.The civil rights lawsuit involves a minor who was in fourth grade at the time the violation occurred. E.W. is the minor suing. A bus surveillance camera caught her and another student fighting on the bus. Both were suspended by the school from riding the bus.For whatever reason, the school didn't do anything about the altercation for 72 hours. Then they called in deputy sheriff Rosemary Dolgos, the school's resource officer. Dolgos questioned the other party in the fight and asked if she was injured. A.W. (the other minor in the altercation) showed the officer a couple of small bruises on her leg.E.W. was summoned to the office. According to the deputy, E.W. didn't seem to care enough about the fight on the bus. From the opinion [PDF]:
Dolgos attempted to emphasize to E.W. the seriousness of the situation and the possible repercussions, telling her that adults could be jailed for such behavior. Still, in Dolgos’s opinion, “E.W. continued to act as if the situation simply was not a ‘big deal.’”
It wasn't a big deal. Or at least it wasn't something the school couldn't have handled without a law enforcement officer. But since a law enforcement officer was involved, law enforcement proceeded without any regard for the actual severity of the situation. Deputy Dolgo, presiding over an apathetic fourth grader, feared for her safety.
Dolgos placed E.W. in handcuffs from behind and reseated her. Dolgos inserted two fingers between the handcuffs and E.W.’s wrists to ensure that they were not too tight. In her affidavit, Dolgos stated that she was concerned about the physical safety of herself and the school administrators because of both the incident she observed in the surveillance video and E.W.’s apathy. Dolgos expressed concern in the affidavit that E.W. might act violently against her or someone else if she attempted to walk E.W. from the school to her patrol car.
Dolgo based these observations on her lack of knowledge.
Dolgos also admitted, however, that she had no idea whether E.W. had “any past or current behavioral issues or past involvements with law enforcement.”
She also likely could have controlled the situation without handcuffs, especially considering E.W.'s apparent compliance.
According to Dolgos, E.W. stood 4’4” and weighed about 95 pounds, while Dolgos stands 5’4” and weighs 155 pounds.
Once placed in handcuffs, E.W. began crying and apologized for the fight. She said she did not want to go to jail and promised she wouldn't hit A.W. again. Apparently this was the reaction Dolgos was looking for. Having been taken seriously enough as a law enforcement officer, Dolgos removed the cuffs and released E.W.The school, however, remained unmoved. It contacted E.W.'s mother and told her they would refer the matter to juvenile services. E.W.'s mother responded with disbelief ("[s]o you're going to put my… daughter in the system when she's 10?") and came to the school to retrieve her daughter. The lawsuit followed.The district court took a brief glance at Dolgos' motion to dismiss and sided with the deputy. The decision was, at best, perfunctory.
In a short paragraph, without citing any case law, the district court concluded that Dolgos’s actions did not amount to excessive force because E.W. was handcuffed for only two minutes and then released to her mother. The court further concluded that Dolgos was “at least” entitled to qualified immunity as to the § 1983 claim.
The appeals court disagrees with the will-this-do assessment of the lower court. It finds the use of force excessive, considering the surrounding circumstances. In doing so, it finds Dolgos' assertions ridiculous.
Here, Dolgos could not have reasonably believed that E.W. presented any immediate risk of harm to anyone. Like the adult suspect in Solomon, E.W. had no weapons and made no threats, see 389 F.3d at 174, and like the eleven-year-old in Sonora, she was calm and compliant as Dolgos spoke to her, see 769 F.3d at 1030. In fact, Dolgos recognized that E.W. appeared calm. See J.A. 23–24. Also similar to the suspects in Solomon and Sonora, E.W., at 4’4” and ninety-five pounds, was quite small relative to Dolgos, the arresting officer, who was a foot taller and sixty pounds heavier. See Sonora, 769 F.3d at 1030; Solomon, 389 F.3d at 174. Not to mention, E.W. was in a closed office and surrounded by two school administrators and a deputy sheriff. Given these facts, E.W. posed little threat even if she were to become aggressive.The significant time that had elapsed—without incident—since the fight on the bus further negates any notion that E.W. posed an immediate threat. While the scuffle took place on Tuesday, January 6, East Salisbury Elementary School waited three days to even contact Dolgos. In the interim, E.W. was allowed to and did in fact attend school without incident, indicating that she did not pose a risk to the children around her, much less to the adults.
In addition, the ignorance of the underlying circumstances Dolgos admitted to (and likely hoped would weigh in her favor by making her unreasonable actions reasonable) only further adds to the factors weighing against handcuffing a compliant 10-year-old.
Moreover, Dolgos had no reason to think that the scuffle between E.W. and A.W. was anything but an isolated incident. E.W. had no prior behavioral issues or involvement with law enforcement, nor did Dolgos have any indication that she did. The use of force is an intrusion on Fourth Amendment rights, and an officer must have a reason for using or escalating force. See Graham, 490 U.S. at 396 (intrusions on Fourth Amendment rights must be reasonably necessary given countervailing governmental interests). Even as to the altercation on the school bus, E.W., while unjustified in retaliating, did not become violent without physical provocation by A.W. Indeed, even a child with a history of attacking school officials should not be handcuffed if, at the time of handcuffing, she did not present a danger.
The appeals court also points to plenty of precedent, finding that handcuffing children tends to be excessive force in almost any situation. It also notes that the use of handcuffs in a school setting tends to undermine the mission of schools and school personnel. Students who see other students handcuffed for behavior that could be addressed by parental or school discipline are far more likely to distrust school administration and will be less likely to bring disciplinary issues to their attention. In extreme cases, parents and students may decide to take their scholastic business elsewhere, leaving the school with fewer students.The court finds Deputy Dolgos violated the Fourth Amendment.
Dolgos took a situation where there was no need for any physical force and used unreasonable force disproportionate to the circumstances presented. We therefore find that Dolgos’s actions amount to excessive force. As such, E.W. has demonstrated a violation of her constitutional rights under the Fourth Amendment.
But here's where it all goes haywire. The court lists numerous reasons -- including circuit precedent -- why Dolgos should have known handcuffing children (absent extreme circumstances) would result in Fourth Amendment violations. It holds that this handcuffing was a Fourth Amendment violation. And then it goes on to declare that Dolgos can rely on her ignorance and her complete lack of better judgment to escape liability.
Conversely, it was not obvious that Dolgos could not handcuff E.W. here. Although precedent supports the conclusion that Dolgos acted unreasonably and violated E.W.’s Fourth Amendment rights, it did not put Dolgos on sufficient notice that her conduct was unlawful. Indeed, this Court previously stated that the use of handcuffs would “rarely” be considered excessive force when the officer has probable cause for the underlying arrest. See Brown, 278 F.3d at 369. And the parties do not point us to any controlling authority sufficiently similar to the situation Dolgos confronted. In fact, E.W. chiefly relies on Graham to define the clearly established law. Without more, we cannot conclude that it would have necessarily been clear to a reasonable officer that handcuffing E.W. would give rise to a Fourth Amendment violation.
This will help handcuffed students in the future, but it does nothing for E.W. And this conclusion comes after a lengthy diversion in the opinion in which the concurring opinion is called out for its willingness to say that handcuffing children reasonable.
The concurrence seems to suggest that elementary school children like E.W. are so inherently unpredictable and uncontrollable that officers would be reasonable in restraining them for our collective safety. Unsurprisingly, the concurrence’s authorities do not actually support that position or apply to this case. The concurrence cites to Knox Cty. Educ. Ass’n v. Knox Cty. Bd. of Educ., 158 F.3d 361 (6th Cir. 1998), for the proposition that young children are “unpredictable, in need of constant attention and supervision,” such that “[e]ven momentary inattention or delay in dealing with a potentially dangerous or emergency situation could have grievous consequences.” Post at 41 (quoting Knox, 158 F.3d at 378). What the concurrence leaves out is that Knox was discussing whether teachers may be required to undergo drug-testing in order to protect young children, who “could cause harm to themselves or others while playing at recess, eating lunch in the cafeteria (if for example, they began choking), or simply horsing around with each other.” See 158 F.3d at 378–79. Unless the concurrence suggests that we handcuff children as a reasonable method of “supervision” to prevent choking and horseplay, Knox has little relevance to the case at hand.
So, the concurrence is only right so far as it agrees with the rest of the court that Deputy Dalgos can walk into a school office and slap handcuffs on a ten-year-old without having to worry about being held liable for violating the student's Fourth Amendment rights. On all other points, it's somehow wrong, but only because it chose the wrong standard of law enforcement ignorance to cite. The concurring opinion somehow manages to be worse than the majority opinion, because it wouldn't even go so far as to establish the handcuffing of compliant prepubescents as "unreasonable."This is a good decision as far as establishing a baseline goes, but the cases cited suggest the baseline had already been set, but only as to eight-year-olds (James v. Frederick Cty. Pub. Sch.) and eleven-year-olds (Tekle v. United States). Ten-year-olds are apparently in need of their own separate precedent. This is how much the doctrine of qualified immunity has erased the word "justice" from the justice system. Anyone who suffers a Fourth Amendment violation had better hope someone in exactly the same circumstances landed a appellate unicorn with their lawsuit, or law enforcement skates away with another win and a very slight narrowing of the scope of civil rights violations officers can get away with.
We had just been talking about Instagram and YouTube facing site blocks in Russia all because a billionaire didn't like his dirty laundry exposed online. For brief background, a noted Russian dissident, Alexy Navalny, had published photos of billionaire Oleg Deripaska and Deputy Prime Minister Sergey Prikhodko relaxing on a yacht with a young woman variously described as a model and escort fawning over them. Importantly, the salacious nature of the photos and videos is only half of the reason Navalny is drawing attention to them. The other reason is his accusations of corruption in government, as a massively wealthy oligarch consorts in this fashion with a high-ranking member of the federal government. Despite that, or perhaps because of it, Russian courts had handed Deripaska a legal victory and ordered sites hosting the images, including Instagram and YouTube, to take them down. Russia's notoriously corrupt site-blocking agency, Rozcomnadzor, issued an edict that the images be removed or the sites would face a potential full block in Russia.In that post as well, we posited that American companies should not be assisting authoritarian regimes in political censorship of this sort. Well, it seems that Facebook's Instagram has decided to cave to the censors.
A spokeswoman for Facebook would not discuss the specifics of the case but confirmed that it had decided to comply with Roskomnadzor's demands."When governments believe that something on the internet violates their laws, they may contact companies and ask us to restrict access to that content," she said. "We review such requests carefully in light of local laws and where appropriate, we make it unavailable in the relevant country or territory. We are transparent about any content restrictions we make for government requests with local law in our Transparency Report."
Let's be clear about what happened here. A political opponent of the current Russian regime posted embarrassing photos showing both a potentially salacious act with a young woman and, more importantly, a potentially inappropriate relationship between government and a wealthy businessman. Whatever level of transparency Facebook desires to have on this matter, the simple fact is that an American company has chosen to bow to what certainly seems like pure political censorship. Whatever the privacy concerns Deripaska may have raised in court, it should be clear to anyone that similar pictures of some every-day person in Russia would not have been treated with so heavy a hand. This all looks to have been done to avoid political embarrassment above anything else.And, so, now all eyes turn to Google.
Its response contrasts with that of Google's YouTube service. It had been ordered to block several clips before the end of Wednesday. But it has taken no such action.
Will Google cave as well? If I were to bet on the matter, that seems an outcome at least as likely as any other, but the company certainly shouldn't give into such demands. And, frankly, if any company has the power to get into a staring contest with the Russian government, it's Google. Whether it has the backbone for it remains to be seen, but I would guess there would be far too much backlash over a full block of YouTube in Russia to be worth the government blocking the site in full.And, again, it's just not a good look to have an American company support this kind of corruption and censorship. It's a shame Facebook couldn't find its stance on the matter, but perhaps Google can do better.
For those of you not interested in professional sports, allow me to educate you on the concept of the "coaching tree." This concept comes from the common decisions by losing teams to hire junior coaches out from under the head coaches of successful teams, hoping to siphon off some of the genius of more successful organizations. In football, for instance, you will often hear about the "Andy Reid coaching tree" as his assistants get head coaching jobs across the league after serving underneath him.Sadly, a much more sinister version of this appears to be occurring in the copyright trolling space, with Malibu Media serving as a launching point for legal minds joining other organizations and replicating what they've learned from their former employer. The result has been an explosion in copyright lawsuits for the early part of 2018, with most of them coming from the porn-trolling industry.
According to Lex Machina, there were 1,019 file-sharing cases filed in the United States last year, which is an average of 85 per month. More than half of these came from adult entertainment outfit Malibu Media (X-Art), which alone was good for 550 lawsuits.While those are decent numbers, they could easily be shattered this year. Data collected by TorrentFreak shows that during the first month of 2018, three copyright holders filed a total of 286 lawsuits against alleged pirates. That’s three times more than the monthly average for 2017.
As the TorrentFreak post goes on to note, while Malibu Media is still leading the way in these lawsuits, a company called Strike 3 Holdings is keeping pace with them, 138 lawsuits for the former and 133 for the latter. The rest of the companies that have filed suits against BitTorrent infringers are other porn-related organizations, save for Bodyguard Productions, which sues over the pirating of the Hitman: Bodyguard film. Interestingly, it seems that this significant uptick in the lawsuit rate has been driven by former Malibu Media employees finding new professional landing spots.
While Strike 3 Holdings is a relative newcomer, their cases follow a similar pattern. There are also clear links to Malibu Media, as one of the company’s former lawyers, Emilie Kennedy, now works as in-house counsel at Strike 3.
This comes at the same time that some courts are pushing back on these trolling efforts. Between some courts describing their tactics as harassing to questioning seriously the evidence that the trolls present to the court, this is the exact wrong time for the court system to suddenly be clogged with Malibu Media-trained legal minds hell bent on trolling for settlement dollars.The only good that might come out of this, should this lawsuit pace continue, is a public recognition that these trolling operations need to be stopped.
The Coalition for Better Adsannounced that it has opened enrollment for its Better Ads Experience Program for publishers that wish to certify their compliance with the Better Ads Standards and participate in the Program's register. The Program represents a significant advancement in the Coalition's efforts to improve the online ad experience for consumers and promote […]The post Coalition for Better Ads Opens Publisher Enrollment to Drive Further Adoption of its Standards appeared first on Adotas.
Techdirt has been covering India's monster biometric database, Aadhaar, since 2015. Media in India, naturally, have been on the story longer, and continue to provide detailed coverage of its roll-out and application. But wider knowledge of the trailblazing identity project remains limited. One international organization that has been working to raise awareness is Mozilla, home of the Firefox browser and Thunderbird email client.Last May, an opinion piece entitled "Aadhaar isn't progress -- it's dystopian and dangerous", by Mozilla Executive Chairwoman and Lizard Wrangler Mitchell Baker and Mozilla community member Ankit Gadgil, appeared in India's Business Standard newspaper. In July 2017, Mozilla released a statement on the Indian Supreme Court hearings on Aadhaar. A blog post in November pointed out that the Aadhaar system is increasingly being used by private companies for their services, something Techdirt covered earlier. Similarly, after it was revealed that anybody's Aadhaar details could be bought for around $8 each, Mozilla issued a statement saying "this latest, egregious breach should be a giant red flag to all companies as well as to the UIDAI [Unique Identification Authority of India] and the [Indian] Government."Following the creation of a committee to draft India's first comprehensive data protection law, Mozilla has now paid for an open letter to appear in The Hindustan Times. It was written by Baker, and co-signed by 1,447 Mozilla India community members. Although the letter welcomes the work being carried out by the committee of experts, it criticizes Aadhaar for its many failings, and points out some serious omissions in the committee's report on data protection:
The current proposal exempts biometric info from the definition of sensitive personal information that must be especially protected. This is backwards, biometric info is some of the most personal info, and can't be "reset" like a password.The design of Aadhaar fails to provide meaningful consent to users. This is seen, for example, by the ever increasing number of public and private services that are linked to Aadhaar without users being given a meaningful choice in the matter. This can and should be remedied by stronger consent, data minimization, collection limitation, and purpose limitation obligations.Instead of crafting narrow exemptions for the legitimate needs of law enforcement, you propose to exempt entire agencies from accountability and legal restrictions on how user data may be accessed and processed.Your report also casts doubt on whether individuals should be allowed a right to object over how their data is processed; this is a core pillar of data protection, without a right to object, consent is not meaningful and individual liberty is curtailed.
On a Web page called "Key challenges and the way forward", Mozilla calls on the Indian government to "pause further roll out of Aadhaar until the major problems with Aadhaar have been addressed." It also has a further suggestion:
The Indian government must release Aadhaar as true open source software rather than use language of open source, and encourage the use, development, and adoption of open source as a pillar of the Aadhaar system
Of course, you might expect an open source foundation like Mozilla to say that, but nonetheless it's good to see what is at heart a software organization engaging with global problems that affect huge numbers of people in this way. Others should do the same.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
The present global verve about artificial intelligence (AI) and machine learning technologies has resonated in China as much as anywhere on earth. With the State Council's issuance of the "New Generation Artificial Intelligence Development Plan" on July 20 , China's government set out an ambitious roadmap including targets through 2030. Meanwhile, in China's leading cities, flashy conferences on AI have become commonplace. It seems every mid-sized tech company wants to show off its self-driving car efforts, while numerous financial tech start-ups tout an AI-driven approach. Chatbot startups clog investors' date books, and Shanghai metro ads pitch AI-taught English language learning.
That's from a detailed analysis of China's new AI strategy document, produced by New America, which includes a full translation of the development plan. Part of AI's hotness is driven by all the usual Internet giants piling in with lots of money to attract the best researchers from around the world. One of the companies that is betting on AI in a big way is Google. Here's what Sundar Pichai wrote in his 2016 Founders' Letter:
Looking to the future, the next big step will be for the very concept of the "device" to fade away. Over time, the computer itself -- whatever its form factor -- will be an intelligent assistant helping you through your day. We will move from mobile first to an AI first world.
This Center joins other AI research groups we have all over the world, including in New York, Toronto, London and Zurich, all contributing towards the same goal of finding ways to make AI work better for everyone.Focused on basic AI research, the Center will consist of a team of AI researchers in Beijing, supported by Google China's strong engineering teams.
So far, so obvious. But an interesting article on the Macro Polo site points out that there's a problem with AI research in China. It flows from the continuing roll-out of intrusive surveillance technologies there, as Techdirt has discussed in numerous posts. The issue is this:
Many, though not all, of these new surveillance technologies are powered by AI. Recent advances in AI have given computers superhuman pattern-recognition skills: the ability to spot correlations within oceans of digital data, and make predictions based on those correlations. It's a highly versatile skill that can be put to use diagnosing diseases, driving cars, predicting consumer behavior, or recognizing the face of a dissident captured by a city's omnipresent surveillance cameras. The Chinese government is going for all of the above, making AI core to its mission of upgrading the economy, broadening access to public goods, and maintaining political control.
As the Macro Polo article notes, Google is unlikely to allow any of its AI products or technologies to be sold directly to the authorities for surveillance purposes. But there are plenty of other ways in which advances in AI produced at Google's new lab could end up making life for Chinese dissidents, and for ordinary citizens in Xinjiang and Tibet, much, much worse. For example, the fierce competition for AI experts is likely to see Google's Beijing engineers headhunted by local Chinese companies, where knowledge can and will flow unimpeded to government departments. Although arguably Chinese researchers elsewhere -- in the US or Europe, for example -- might also return home, taking their expertise with them, there's no doubt that the barriers to doing so are higher in that case.So does that mean that Google is wrong to open up a lab in Beijing, when it could simply have expanded its existing AI teams elsewhere? Is this another step toward re-entering China after it shut down operations there in 2010 over the authorities' insistence that it should censor its search results -- which, to its credit, Google refused to do? "AI first" is all very well, but where does "Don't be evil" fit into that?Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
Well, that was incredibly quick. The district court judge hearing the case that Playboy filed against BoingBoing back in November has already dismissed it, though without prejudice, leaving it open for Playboy to try again. The judge noted that, given the facts before the court so far, it wasn't even necessary to hold a hearing, since BoingBoing was so clearly in the right and Playboy so clearly had no case. While the ruling does note that Playboy and its legal team can try again, it warns them that it's hard to see how there's a case here:
The court will grant defendant's Motion and dismiss plaintiff's First Amended Complaint... with leave to amend. In preparing the Second Amended Complaint, plaintiff shallcarefully evaluate the contentions set forth in defendant's Motion. For example, the court isskeptical that plaintiff has sufficiently alleged facts to support either its inducement or materialcontribution theories of copyright infringement.... seeTarantino v. Gawker Media, LLC, 2014 WL 2434647, *3 (C.D. Cal. 2014) (An allegation that adefendant merely provided the means to accomplish an infringing activity is insufficient to establisha claim for copyright infringement. Rather, liability exists if the defendant engages in personalconduct that encourages or assists the infringement.) (internal citations omitted); Perfect 10, Inc.v. Giganews, Inc., 847 F.3d 657, 672 (9th Cir.), cert. denied, 138 S.Ct. 504 (2017) (We havedescribed the inducement theory as having four elements: (1) the distribution of a device orproduct, (2) acts of infringement, (3) an object of promoting its use to infringe copyright, and (4)causation.) (internal quotation marks omitted).
It will be interesting to see what happens next. As we noted in our original post, the lawyers representing Playboy, Donger and Burroughs have been making every effort over the last year or so to move beyond their reputation as fabric copyright trolls, and seeking out opportunities for high profile, if silly, cases including "sounds like" music cases. While one of the two partners, Scott Burroughs, has busied himself over at Above the Law (who really should think more carefully about the lawyers they bring in as posters) to post increasingly silly things about copyright law -- including trying to argue that linking is infringing and the EFF is wrong to argue that it's not.That article -- written about the same time that the BoingBoing lawsuit was filed -- looks particularly bad now that a court has rejected the same argument in a case in which Burroughs is listed as a lawyer for Playboy, and in which EFF helped write the Motion to Dismiss that said that Burroughs was wrong. Just days ago, another lawyer posting at Above the Law explained why Burroughs' own case had no chance (without mentioning Burroughs' own writings on the site).I'm guessing that Playboy will file an amended complaint, though as we noted earlier, in copyright law, it's much easier to have legal fees awarded for filing frivolous cases, and as the quote above notes, the judge is "skeptical" that Playboy has any case at all.
It's not easy being the king of the internet. Last year,Google lost millionswhen advertisers saw their ads displayed alongside extremist and hateful content on YouTube. Verizon, for example,jumped shipafter its ads appeared with videos from Wagdi Ghoneim, a preacher banned from the United States and United Kingdom for inciting violence and hatred. That said, programmatic […]The post How To Get More From Programmatic Advertising & Conquer Its Challenges appeared first on Adotas.
Now that we've covered a couple of stories about game companies, notably Blizzard, bullying the fans that run antiquated versions of MMO games on their own servers to shut down, it's as good a time as any to discuss a recent call for the DMCA anti-circumvention exemptions to include the curation of abandoned MMO games. A few weeks back, during the triennial public consultation period in which the U.S. Copyright Office gathers public commentary on potential exemptions to the DMCA's anti-circumvention provisions, a bunch of public comments came in on the topic of abandoned video games. Importantly, the Librarian of Congress already has granted exemptions for the purpose of preserving the art of video games so that libraries and museums can use emulators to revive classic games for the public.But what do you do if you're looking to preserve a massive multiplayer online game, or even single-player games, that rely on server connections with the company that made those games in order to operate? Those servers don't last forever, obviously. Hundreds of such games have been shut down in recent years, lost forever as the companies behind them no longer support the games or those that play them.Well, one non-profit in California, The Museum of Art and Digital Entertainment, wants anti-circumvention exemptions for running servers for these games to keep them alive as well.
“Although the Current Exemption does not cover it, preservation of online video games is now critical,” MADE writes in its comment to the Copyright Office. “Online games have become ubiquitous and are only growing in popularity. For example, an estimated fifty-three percent of gamers play multiplayer games at least once a week, and spend, on average, six hours a week playing with others online.”“Today, however, local multiplayer options are increasingly rare, and many games no longer support LAN connected multiplayer capability,” MADE counters, adding that nowadays even some single-player games require an online connection. “More troubling still to archivists, many video games rely on server connectivity to function in single-player mode and become unplayable when servers shut down.”
Due to that, MADE is asking the Copyright Office (and the Librarian of Congress) to allow libraries and museums exemptions to run their own servers to display these games as well. Frankly, it's difficult to conjure an argument against the request. If games are art, and they are, then they ought to be preserved. The Copyright Office has already agreed with this line of thinking for the category of games that don't require an online connection, so it's difficult to see how it could punt on the issue of online games.And, yet, we have examples of fan-run servers of abandoned games, or versions of games, getting bullied by companies like Blizzard. These fan-servers are essentially filling the same role that groups like MADE would like to do: preserving old gaming content that has been made otherwise unavailable by companies that have turned down online game servers.It's enough to make one wonder why a group of fans of a game shouldn't get the same protections afforded to a library or museum, if the end result is nearly identical.
Last year, we wrote about how a relatively new patent trolling operation had pretty clearly picked the wrong target in suing internet infrastructure provider Cloudflare with a sketchy patent (US Patent 6,453,335 on "providing an internet third party data channel.") Cloudflare decided not only to fight the case, but to fight all of Blackbird's patents, crowdsourcing and funding searches into prior art on any patent held by Blackbird Technologies, and arguing that the company was engaging in questionable legal practices -- acting both as a patent holding company and a law firm, while sometimes pretending not to be a law firm (despite employing mostly lawyers) to avoid some serious ethics questions.On Monday, Cloudflare received a fairly complete victory, with the judge easily dismissing the case and pointing out that the '335 patent was clearly invalid:
Abstract ideas are not patentable. The '335 patent is directed to the abstract idea of monitoring a data stream and modifying that data when a specific condition is identified.... The limitations in representative claims 1 and 18 "recite generic computer, network and Internet components, none of which is inventive by itself." ... Both claims describe a "processing device" that monitors a preexisting data stream between a server and a client for a specific condition and modifies that stream when that condition is present. But the patent makes clear the processing device can be generic hardware, such as a filter, router, or proxy, or generic software.Dependent claims 8 and 24 identify a specific condition for the processing device to monitor: a data transmission rate below a set threshold. Identifying a specific condition narrows the scope of these claims. But this additional limitation is not inventive; it is simply a conventional application of the broader idea.... A patent that uses generic components can contain an inventive concept if those generic pieces are arranged in a "non-conventional and non-generic" way.... But the '335 patent does not attempt to patent a discrete and non-conventional means of monitoring and modifying a data stream. In fact, the claims make clear the processing device used to monitor and modify data can be nearly anything and can be placed nearly anywhere, so long as the processing device is not the server that originates the data stream. In other words, the patent attempts to monopolize the abstract idea of monitoring a preexisting data stream between a server and a client for a specific condition and modifying that stream when that condition is present.
Patent cases -- even ones that should be easy -- are pretty famous for forcing the defendant to go through a long and expensive process to conclude. Normally there are extensive back and forth and filings and hearings between the parties as the court determines just what the patents cover and what the defendants are alleged to have done. Here, however, Cloudflare made an early motion to dismiss based on the claim that the patent itself is clearly invalid under the Supreme Court's Alice ruling that abstract ideas are not patentable. The court found this so persuasive that it tossed the case and the patent at this early stage (and did so in just two quick pages).Blackbird may appeal, but it's difficult to see any appeal getting very far either. And, given how Cloudflare is still asking for prior art on all of Blackbird's other patents, the company may be interested in getting as far away as possible from Cloudflare as quickly as possible. But, then again, no one said that the people who run patent trolling operations are very smart.Either way, kudos to Cloudflare for hitting back hard and getting an early victory against patent troll Blackbird.
Viant’s Power of the People reportexploreshow people-based marketingis driving change across theU.S. advertising industry. It is based on a survey of over 250 brand-side digital marketers. The survey and report examines: the challenges concerning cookies for digital advertising; the top reasons marketers invest in digital marketing; what's limiting the success of their digital marketing; and […]The post 32% of Marketers Believe Cookies are Dead in a Year – A “Power of the People” Report by Viant appeared first on Adotas.
Every year, data from surveys conducted by Nielsen and Scarborough is used to affect hundreds of billions of dollars of advertising spend. This is ostensibly an indicator of the level of trust that brands have in Nielsen surveys – but, at a time when over 20 percent of US households do not have cable, fewer […]The post Mobile Phones Can Revolutionize the Way We Think About Consumers appeared first on Adotas.
With the event at Santa Clara earlier this month, and the companion essays published here, we've been talking a lot lately about how platforms moderate content. It can be a challenging task for a platform to figure out how to balance dealing with the sometimes troubling content it can find itself intermediating on the one hand and free speech concerns on the other. But at least, thanks to Section 230, platforms have been free to do the best they could to manage these competing interests. However you may think they make these decisions now, they would not come out any better without that statutory protection insulating them from legal consequence if they did not opt to remove absolutely everything that could tempt trouble. If they had to contend with the specter of liability in making these decisions it would inevitably cause platforms to play a much more censoring role at the expense of legitimate user speech.Fearing such a result is why the Copia Institute filed an amicus brief at the Ninth Circuit last year in Fields v. Twitter, one of the many "how dare you let terrorists use the Internet" cases that keep getting filed against Internet platforms. While it's problematic that they keep getting filed, they have fortunately not tended to get very far. I say "fortunately," because although it is terrible what has happened to the victims of these attacks, if platforms could be liable for what terrorists do it would end up chilling platforms' ability to intermediate any non-terrorist speech. Thus we, along with the EFF and the Internet Association (representing many of the bigger Internet platforms), had all filed briefs urging the Ninth Circuit to find, as the lower courts have tended to, that Section 230 insulates platforms from these types of lawsuits.A few weeks ago the Ninth Circuit issued its decision. The good news is that this decision affirms that the end has been reached in this particular case and hopefully will deter future ones. However the court did not base its reasoning on the existence of Section 230. While somewhat disappointing because we saw this case as an important opportunity to buttress Section 230's critical statutory protection, by not speaking to it at all it also didn't undermine it, and the fact the court ruled this way isn't actually bad. By focusing instead on the language of the Anti-Terrorism Act itself (this is the statute barring the material support of terrorists), it was still able to lessen the specter of legal liability that would otherwise chill platforms and force them to censor more speech.In fact, it may even be better that the court ruled this way. The result is not fundamentally different than what a decision based on Section 230 would have led to: like with the ATA, which the court found would have required some direct furtherance by the platform of the terrorist act, so would Section 230 have required the platform's direct interaction with the creation of user content furthering the act in order for the platform to potentially be liable for its consequences. But the more work Section 230 does to protect platforms legally, the more annoyed people seem to get at it politically. So by not being relevant to the adjudication of these sorts of tragic cases it won't throw more fuel on the political fire seeking to undermine the important speech-protective work Section 230 does, and then it hopefully will remain safely on the books for the next time we need it.[Side note: the Ninth Circuit originally issued the decision on January 31, but then on 2/2 released an updated version correcting a minor typographical error. The version linked here is the latest and greatest.]
It's been a minute since we've had to cover some trademark nonsense in the beer industry. In fact, several recent stories have actually represented what might be mistaken for a clapback on aggressive trademark protectionism in the alcohol space. But, like all great things, it just couldn't last. The specific tomfoolery that has brought reality crashing down on us once again comes out of Iowa, where Confluence Brewing has filed a trademark suit against Confluence On 3rd, which is an apartment complex that does not serve or make beer.
Confluence Brewing Company on Friday filed a trademark lawsuit and motion for an injunction in Polk County District Court seeking to stop Confluence on 3rd apartments from using the name "Confluence."John Martin, president and co-founder of Confluence Brewing, said representatives of the company have tried to have discussions with Roers Companies, the Long Lake, Minnesota-based developer of Confluence on 3rd and several other Des Moines-area properties, but felt that their complaints were "falling on deaf ears."
Those complaints appear to have centered around both companies using the word "confluence" and the potential public confusion that could cause. Which is really dumb. Because the brewery sells beer and the apartment complex rents apartments. A greater deviation in marketplaces I dare say could not be dreamed. And, yet, Confluence Brewing appears to have taken its opponent's refusal to negotiate on these invalid complaints as some sort of personal affront. After some back and forth about whether Confluence On 3rd might add the word "apartments" to the brand, it seems communication ceased. Jeff Koch, a principal at the parent company for Confluence On 3rd, had been a part of these conversations, but communication with him too was rebuffed.Which isn't to say that Koch won't explain to the media just how ridiculous this all is.
The two companies have distinct names and operate in different business sectors, Koch said in his email to the Register. He said Confluence on 3rd has not experienced any confusion in the marketplace."Confluence on 3rd was named solely on the historic relevance the city was founded at the confluence of the Des Moines and Raccoon rivers," Koch said in his email to the Register. "It is unique to Des Moines history and should be celebrated, not solely owned and dictated by one brewing company."
This is essentially the localization of the aspect of trademark law that prevents a single company from locking up language globally. The whole point of trademark law is to prevent customer confusion within a given market, so that one brewer can't pass themselves off as another by having similar names and branding. That just isn't a concern here, given the disparity in the markets in which these two companies play. So, what got us to the point of having Confluence Brewing alleging true concern about public confusion?Beer coasters, largely.
In April 2017, court documents show, Confluence Brewing called Roers Companies asking them to cease and desist their use of blue drink coasters promoting Confluence on 3rd at Des Moines bars."I just think the bar coasters just seem a little bit blatant," Kerndt said. "I mean, they were being distributed at establishments that serve my clients’ beer."Emails between Kerndt and Koch show Confluence on 3rd had distributed all their coasters by the time of the April call and have not ordered any additional coasters since then.
Which is entirely besides the point. Just because a company puts out the tchotchke of its choice doesn't suddenly put it in a competitive situation with anyone who makes those tchotchkes. If that were the case, the tchotchke market as a whole wouldn't... you know... exist. The only other type of confusion mentioned in the article for Confluence Brewing is that apparently people's Google map skills occasionally send them to the wrong Confluence company for the wrong item. Still, that isn't the type of confusion trademark law is supposed to prevent and it's easily remedied by directing the customer to another address.I will say that Confluence Brewing comes off as very earnest on the matter, so perhaps the folks there simply aren't aware of the intricacies of trademark law. Its legal team, on the other hand, certainly should be.
PROGRAMMATIC I/O San Francisco, April 10-11, 2018at the SanFrancisco Marriott Marquis has released the latest agenda. To register, click here. DAY 1 TUESDAY,APRIL 10 PROGRAMMATIC ESSENTIALS BUY-SIDE WORKSHOPS 9:00 AM– How To Personalize Social Ads With Dynamic Creative (DCO) 9:30 AM– Special Presentation From Oath 10:00 AM– What Does A Good DMP Look Like? 10:55 […]The post Latest Agenda-PROGRAMMATIC I/O San Francisco–April 10-11, 2018 appeared first on Adotas.
It’s time for AgilOne’s second annual Customer Data Platform Summitin New York City on March 8, 2018. AgilOne, a customer data platform for enterprise B2C brands, announced theirCustomer Data Platform Summitwill be held onMarch 8, 2018, in New York. The free, half-day event will feature interactive unsummit-style roundtable discussions, presentations, and interactive panels from some […]The post AgilOne’s Customer Data Platform Summit appeared first on Adotas.
It is something of an unfortunate Techdirt tradition that every time the Olympics rolls around, we are alerted to some more nonsense by the organizations that put on the event -- mainly the International Olympic Committee (IOC) -- going out of their way to be completely censorial in the most obnoxious ways possible. And, even worse, watching as various governments and organizations bend to the IOC's will on no legal basis at all. In the past, this has included the IOC's ridiculous insistence on extra trademark rights that are not based on any actual laws. But, in the age of social media it's gotten even worse. The Olympics and Twitter have a very questionable relationship as the company Twitter has been all too willing to censor content on behalf of the Olympics, while the Olympic committees, such as the USOC, continue to believe merely mentioning the Olympics is magically trademark infringement.So, it's only fitting that my first alert to the news that the Olympics are happening again was hearing how Washington Post reporter Ann Fifield, who covers North Korea for the paper, had her video of the unified Korean team taken off Twitter based on a bogus complaint by the IOC:
And Twitter complied even though the takedown is clearly bogus. Notice Fifield says that it is her video? The IOC has no copyright claim at all in the video, yet they filed a DMCA takedown over it. The copyright is not the IOC's and therefore the takedown is a form of copyfraud. Twitter should never have complied and shame on the company for doing so. Even more ridiculous: Twitter itself is running around telling people to "follow the Olympics on Twitter." Well, you know, more people might do that if you weren't taking down reporters' coverage of those very same Olympics.Oh, and it appears that Facebook is even worse. They're pre-blocking the uploads of such videos:
This is fucked up and both the IOC and Facebook should be ashamed. The IOC can create rules for reporters and can expel them from the stadium if they break those rules, but there is simply no legal basis for them to demand such content be taken off social media, and Twitter and Facebook shouldn't help the IOC censor reporters.
Online platforms have enabled an explosion of creativity — but the laws that make this possible are under attack in NAFTA negotiations. We recently launched EveryoneCreates.org to share the stories of artists and creators who have been empowered by the internet. This guest post from Public Knowledge's Gus Rossi explore's what's at stake.In the past few weeks, we at Public Knowledge have been talking with decision-makers on Capitol Hill about NAFTA. We wanted to educate ourselves on the negotiation process for this vital trade agreement, and fairly counsel lawmakers interested in its effects on consumer protection. And we discovered a thing or two in this process.It won't surprise anyone that we don't always agree with lobbyists for the big entertainment companies when it comes to creating a balanced copyright system for internet users. But some of the ideas these groups are advancing are widely misleading, brutally dishonest, and even dangerous to democracy. We wanted to share the two wildest ideas the entertainment industries are proposing in the new-NAFTA, so you can help us set the record straight before it's too late:1) Safe harbors enable child pornography and human trafficking.Outside specialized circles, common wisdom is that safe harbors are free get-out-of-jail cards that internet intermediaries like Facebook can use to avoid all responsibility for anything that internet users say or do in their services. Leveraging this fallacy, entertainment industry lobbyists are arguing that safe harbors facilitate child pornography and human trafficking. Therefore, the argument follows, NAFTA should not promote safe harbors.This is highly misleading. Safe harbors are simply legal provisions that exempt internet intermediaries such as YouTube or Twitter, and broadband providers such as Comcast or AT&T, from liability for the infringing actions of their users under certain specific circumstances. Without safe harbors, internet intermediaries would be obligated to censor and control everything their users do on their platforms, as they would be directly liable for it. Everything from social media, to internet search engines, to comments section in newspapers, would be highly restricted without some limitations on intermediary liability.The Digital Millennium Copyright Act (DMCA) and Section 230 of the Communications Decency Act (CDA 230) establish the two most important limitations for online intermediaries in US law. According to the DMCA, internet access providers (such as Comcast, AT&T, and Verizon) are not liable for the alleged copyright infringement of users on their networks, so long as they maintain a policy of terminating repeat infringers. Content hosts (such as blogs, image-hosting sites, or social media platforms) on the other hand, have to remove material if the copyright holder sends a takedown notice of infringement.CDA 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them directly responsible for what others say and do.The relevant safe harbor for the interests of the entertainment industries is the DMCA, not CDA 230. CDA 230 specifically excludes copyright from its umbrella. And DMCA is exclusively about copyright. It is incredible dishonest and shallow for these lobbyists to use the specter of child abuse to drum up support for their position on copyright in NAFTA. No one should try to obfuscate a complicated policy discussion by accusing their opponents of promoting child sex trafficking.2) Exceptions and limitations to copyright are unnecessary in trade agreements.According to none other than the World Intellectual Property Organization, exceptions and limitations to copyright -- such as fair use -- exist [i]n order to maintain an appropriate balance between the interests of rights holders and users of protected works, [allowing] cases in which protected works may be used without the authorization of the rights holder and with or without payment of compensation. Without exceptions and limitations, everything from using a news clip for political parody, to sharing a link to a news article in social media, to discussing or commenting on just about any work of art or scholarship -- all could constitute copyright infringement.Yet, the entertainment industries are arguing that exceptions and limitations are outdated and unnecessary in trade agreements. They say that copyright holders should be protected from piracy and unlawful use of their works, claiming that any exceptions and limitations are a barrier to the protection of American artists.This is also wildly inaccurate. American artists and creators remix, reuse, and draw inspiration from copyrighted works every single day. If our trade partners don't adopt exceptions and limitations to copyright, then these creators could be subject to liability when exporting their work to foreign countries. Exceptions and limitations to copyright are necessary both in the US and elsewhere. Our copyright system simply wouldn't work without them, especially in the digital age.Conclusion: We need to set the record straight.For its political and economic importance, NAFTA could be be the standard for future American-sponsored free trade agreements. But NAFTA could have dramatic and tangible domestic consequences if it undermines safe harbors and exceptions and limitations to copyright. In the next policy debate around copyright infringement or intermediaries liabilities, the entertainment industries will point to NAFTA as an example of the US Government's stated policy and where the world is moving.Furthermore, these lobbyists will have already convinced many on Capitol Hill that safe harbors enable child abuse and that fair use is unnecessary. The entertainment industries knows how to walk through the corridors of power day after day -- they've been doing so for well over a century.It's not too late to fight back, set the record straight, and defend a balanced approach to copyright and consumer protections in NAFTA. You can start by contacting your representative. But the clock is ticking. Join Public Knowledge in the fight to keep the internet open for everyone.
Standardized metrics for branded integrations will help media owners, marketers and brands capitalize on additional advertising opportunities Nielsen’s Branded Integration Intelseeks to standardize the way product and brand exposures are valued across screens and devices. While media owners, brand and advertisers recognize that branded integrations are a valuable way to reach consumers, many have lacked […]The post Nielsen's Branded Integration Intel Captures, Measures and Evaluates Brand Exposures appeared first on Adotas.
Performance partnerships took some giant steps forward in 2017. Many brands stepped up their efforts in building mutually beneficial relationships based on the performance model to drive growth in all areas of their business, from marketing and sales to business development. A Performance-Based Framework Yields Better Results First, we saw many […]The post What's Next for Performance Partnerships in 2018? appeared first on Adotas.
You will hopefully recall a post we did several years ago dealing with Blizzard's decision to shut down a fan-run "vanilla" World of Warcraft server that stripped the game's expansions out and let players play the game as it was originally released in 2004. As is so often the case in these kinds of disputes, we can at once stipulate that Blizzard was within its right to do this while still calling out whether it was the best decision it could make on the matter. The simple fact is that there were other avenues down which the company could travel other than threatening the fan-server into oblivion, such as working out a cheap licensing arrangement to make it official. The whole situation became all the more odd when you consider that Blizzard itself does not offer a competing experience with the fan-server, essentially ignoring what is clearly a desire within the fanbase for that kind of experience that Blizzard could monetize if it wanted. Instead, the fan-server shut itself down under the threat of a trademark lawsuit and Blizzard went on its merry way ignoring these customer desires.Fast forward to today, some two years later, and it's all happening again. Another fan-operated vanilla server, this one called Light's Hope, is under attack from Blizzard for all the same reasons.
In recent years the project has captured the hearts of tens of thousands of die-hard WoW fans. At the time of writing, the most popular realm has more than 6,000 people playing from all over the world. Blizzard, however, is less excited.The company has asked the developer platform GitHub to remove the code repository published by Light’s Hope. Blizzard’s notice targets several SQL databases stating that the layout and structure is nearly identical to the early WoW databases.
That, of course, is the entire point of the vanilla server. The very idea is to allow players to experience the roots of the massively popular online game. And it's quite popular, too, with thousands of players playing this vanilla experience. If nothing else, this again should represent free market research and the uncovering of an entirely new and potentially lucrative market for Blizzard. It would be one thing if these takedowns were going on while coupled with statements from the company about its own competing service. But that's not what's happening. The takedowns happen and Blizzard ignores the market demands.To be clear, again, Blizzard can do this. But, no matter the game of pretend its PR reps try to play, it certainly doesn't have to do this. It could quite easily work something out with Light's Hope to make it official and either monetize it directly or at least recognize that these types of fan projects do nothing but drive more interest and dollars towards the original product.In the end, Blizzard comes off as anti-consumer and against its own passionate fan base. That's not a good look.
Techdirt has been exploring the important questions raised by so-called "fake news" for some time. A new player in the field of news aggregation brings with it some novel issues. It's called TopBuzz, and it comes from the Chinese company Toutiao, whose rapid rise is placing it alongside the country's more familiar "BAT" Internet giants -- Baidu, Alibaba and Tencent. It's currently expanding its portfolio in the West: recently it bought the popular social video app Musical.ly for about $800 million:
Toutiao aggregates news and videos from hundreds of media outlets and has become one of the world's largest news services in the span of five years. Its parent company [Bytedance] was valued at more than $20 billion, according to a person familiar with the matter, on par with Elon Musk's SpaceX. Started by Zhang Yiming, it's on track to pull in about $2.5 billion in revenue this year, largely from advertising.
Toutiao, one of the flagship products of Bytedance, may be the largest app you've never heard of -- it's like every news feed you read, YouTube, and TechMeme in one. Over 120M people in China use it each day. Yet what's most interesting about Toutiao isn't that people consume such varied content all in one place... it's how Toutiao serves it up. Without any explicit user inputs, social graph, or product purchase history to rely on, Toutiao offers a personalized, high quality-content feed for each user that is powered by machine and deep learning algorithms.
However, as people are coming to appreciate, over-dependence on algorithmic personalization can lead to a rapid proliferation of "fake news" stories. A post about TopBuzz on the Technode site suggests this could be a problem for the Chinese service:
What's been my experience? Well, simply put, it's been a consistent and reliable multi-course meal of just about every variety of fake news.
The post goes on to list some of the choice stories that TopBuzz's AI thought were worth serving up:
Roy Moore Sweeps Alabama Election to Win Senate SeatYoko Ono: "I Had An Affair With Hillary Clinton in the '70s"John McCain's Legacy is DEMOLISHED Overnight As Alarming Scandals LeakJulia Roberts Claims 'Michelle Obama Isn't Fit To Clean Melania's Toilet'
The post notes that Bytedance is aware of the problem of blatantly false stories in its feeds, and the company claims to be using both its artificial intelligence tools as well as user reports to weed them out. It says that "when the system identifies any fake content that has been posted on its platform, it will notify all who have read it that they had read something fake." But:
this is far from my experience with TopBuzz. Although I receive news that is verifiably fake on a near-daily basis, often in the form of push notifications, I have never once received a notification from the app informing me that Roy Moore is in fact not the new junior senator from Alabama, or that Hillary Clinton was actually not Yoko Ono's sidepiece when she was married to John Lennon.
The use of highly-automated systems, running on server farms in China, represents new challenges beyond those encountered so far with Facebook and similar social media, where context and curation are being used to an increasing degree to mitigate the potential harm of algorithmic newsfeeds. The fact that a service like TopBuzz is provided by systems outside the control of the US or other Western jurisdictions poses additional problems. As deep-pocketed Chinese Internet companies seek to expand outside their home markets, bringing with them their own approaches and legal frameworks, we can expect these kind of issues to become increasingly thorny. We are also likely to see those same services begin to wrestle with some of the same problems currently being tackled in the West.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
Kaleido Insights report, “Global Content Strategy: This is Going to be Big!”by Rebecca Lieb (pictured left) offers a deep look into the challenges and opportunities facing companies as they try to build a global content strategy. Enterprises are still in the relatively early stages of integrating content strategy as a discipline, notonly into the marketing […]The post Global Content Strategy: This is Going to be Big! A Kaleido Insights Report appeared first on Adotas.
Super Bowl LII Had Second Highest Ever $414 Million of In Game Ads Kantar Media's preliminary estimate of in-game ad expenditures for Super Bowl LII, subject to revision, is $414 million. This would be the second largest amount in history besides last year's game, which was the first to run into overtime. There was a […]The post Super Bowl LII – The Numbers: A Kantar Media Report appeared first on Adotas.
In the middle of summer last year, we discussed a somewhat strange trademark fight between BrewDog, a Scottish Brewery that has been featured in our pages for less than stellar reasons, and the Elvis Presley Estate. At issue was BrewDog's attempt to trademark the name of one of its beers, a grapefruit IPA called "Elvis Juice." With no other explanation beyond essentially claiming that any use of Elvis everywhere will only be associated in the public's mind as being affiliated by the 1950s rock legend, the Estate opposed the trademark application. Initially, the UK Intellectual Property Office sided with the Estate, despite the owners of BrewDog both pointing out that they were simply using a common first name and that they were actually taking the legal course of changing their first names to Elvis to prove their point. Not to mention that the trade dress for the beer has absolutely nothing to do with Elvis Presley. We wondered, and hoped, at the time if BrewDog would appeal the decision.Well, it did, and it has won, which means Elvis Juice is free to exist and the order that BrewDog pay the Elvis Estate costs for its opposition be vacated.
Now, after a three-year battle the firm has overturned a ruling banning them from using the name and and order to pay Presley's estate £1,500 in costs has been scrapped. The ruling means BrewDog will no longer have to change the name or apply to the Elvis estate for official permission to use it.
It's the right end-state for all of this, but you have to wonder why it took an appeal process to get here. Again, you can see the trade dress for the beer in our original post and you will see that there is absolutely nothing in the way of a call-back to Elvis Presley. In other words, the opposition from the Estate rested solely on the claim that virtually any use of a common first name would be associated with the long-dead Elvis Presley. Arguably, Presley may not even by the first singer to leap to mind in the European market, where Elvis Costello is still, you know, alive. This whole thing smacked of pure audacity on the part of the Estate.But let's remember that BrewDog has had to deal with this mess for the better part of a year. To those that would claim that trademark bullying isn't all that big a problem, tell that to the two Elvises (Elvisi?) that own BrewDog.
Back in December, we reported on an effort underway in Australia to criminalize both whistleblowers and journalists who publish classified documents with up to 20 years in prison. 20 years, by the way, is also the amount of time that Cabinet documents are supposed to be kept classified in Australia. But just recently Australia's ABC news suddenly started breaking a bunch of news that appeared to come from access to Cabinet documents that were still supposed to be classified. This included stories around ending welfare benefits for anyone under 30 years old as well as delaying background checks on refugees. Some explosive stuff.On Wednsday, ABC finally revealed where all this stuff came from. It wasn't an Australian Ed Snowden. It was... government incompetence. Apparently, someone bought an old filing cabinet from a store that sells second-hand government office furniture. The cabinet had no key, so he drilled the lock and... found a ton of Cabinet documents in an actual cabinet.So... if that law were to go through in Australia... would that mean the government employee who didn't check the filing cabinet would get 20 years in jail? Or the store that sold out? Or the guy that drilled it? Or do all of them get 20 years? Why don't we just support whistleblowers and the press for reporting on important news that the public should know about?
This week Innotech Capitals, an international private equity and venture capital fund, is expected to announce it has made a seed investment inGlever.com,a company that uses AI technology to make resume writing simple and effective.Nothing is more important – or painful – as writing a compelling resume. Fortunately, after some input from you, Glever automates […]The post AI at Glever Takes Over Resume Writing–AI-Written Content Can’t Be Far Behind appeared first on Adotas.
O design e desenvolvimento do sites um setor de servios prspero pelo momento. Com a passagem do tempo, os empresrios da web perceberam a importncia de seus sites e esto fazendo esforos constantes para melhor-los. Eles tm que assumir a tarefa dupla de torn-los atraentes o suficiente para os utilizadores, bem tais como os […]The post WWW Desenho Basics para esbocar um site poderoso appeared first on Adotas.
Local advertising on mobile devices sold by pure-play mobile providers will rise this year to $19 billion, according to BIA/Kelsey’sU.S. Local Advertising Forecast 2018: Mobile and Socialestimates. An additional $3.1 billion in mobile advertising is being sold by traditional media companies (i.e., radio, television and newspapers) in 2018. With increasing consumer and SMB adoption and […]The post Significant Growth in Local Mobile Ad Spending in 2018 and Beyond–BIA/Kelsey Report appeared first on Adotas.
Nearly three years ago, Bell's Brewery, whose products I used to buy greedily, decided to oppose a trademark for Innovation Brewing, a tiny operation out of North Carolina. The reasons for the opposition are truly difficult to comprehend. First, Bell's stated that it uses the slogan "Bottling innovation since 1985" on some merchandise. This was only barely true. The slogan does appear on some bumper stickers that Bell sells and that's pretty much it. It appears nowhere in any of the brewery's beer labels or packaging. Also, Bell's never registered the slogan as a trademark. Bell's also says it uses the slogan "Inspired brewing" and argues that Innovation's name could create confusion in the marketplace because it's somehow similar to that slogan.This is a good lesson in why trademark bullying of this nature is a pox on any industry derived largely of small players, because it's only in the past weeks that the Trademark Trials and Appeals Board in Virginia has ruled essentially that Bell's is full of crap.
The federal Trademark Trials and Appeals Board in Virginia says there is little chance of confusion by consumers and dismissed Bell’s action on Dec. 20.Bell’s says it is moving on. “We respect the Trademark Office’s decision and look forward to doing business as usual,” the brewery said in an emailed statement to Xpress.
That's simply not good enough. Innovation is roughly one-sixtieth the size of Bell's, producing 500 barrels a year, and representing a zero threat to the much larger company. And, yet, for three years Innovation has been tied up in this federal action trying to simply register the name of the brand upon which it built its small business. Also, and I cannot stress this enough, the claims that Bell's was making were plainly absurd. Those claims included stating that the words "innovation" and "inspired" had the same or similar meanings to the degree the public would be confused. They don't. It attempted to block a trademark over a slogan it barely uses and never registered. There was never any reason to do any of this.Yet, we have three years of bullying action. At the end of that bullying, Bell's gets to waltz away and say it is "moving on", with the legal costs representing a decimal point on its ledger, whereas Innovation has no such war chest and was almost certainly impeded in its business having to deal with all of this. If that isn't the kind of thing the legal system should be better designed to handle, I cannot imagine what would be.
It is no secret that the estate of Martin Luther King Jr. have a long and unfortuate history of trying to lock up or profit from the use of his stirring words and speeches. We've talked about this issue going back nearly a decade and it pops up over and over again. By now you've probably heard that the car brand Dodge (owned by Chrysler) used a recording of a Martin Luther King Jr. speech in a controversial Super Bowl ad on Sunday. It kicked up quite a lot of controversy -- even though his speeches have been used to sell other things in the past, including both cars and mobile phones.King's own heirs have been at war with each other and close friends in the past few years, suing each other as they each try to claim ownership over rights that they don't want others to have. Following the backlash around the Super Bowl ad, the King Center tried to distance itself from the ad, saying that they have nothing to do with approving such licensing deals:
However, as Paul Levy explains, this distancing appears wholly disingenuous given that the King Center partnered with the organization that does handle the licensing -- Intellectual Properties Management -- and that organization... appears to work on the premises of the King Center.
The King Center issued a Twitter statement distancing itself from the grant of permission to use the speech in the ad, without owning up to the fact that Center itself refers users to Intellectual Properties Management for requests to use the works and intellectual property of Dr. King, and that this commercial licensing operation is conducted on the King Center's own premises. In short, there is a long and sordid history of King's heirs monetizing their pretensions to control of historic references to their illustrious forebearer.Intellectual Properties Management issued a statement indicating that it had licensed the specific use made of the speech in the ad as being consistent with Dr. King's philosophy. Dodge refused to tell me what the fee was, claiming that the amount is proprietary information; IPM never responded to questions about the amount of the fee and how the payment is being used.
Furthermore, Chrysler's own statement about this notes that it had "the privilege of working closely with the Estate of Martin Luther King, Jr. to celebrate these words..." So, as Levy notes, even as the Estate tries to distance itself, it appears to have been involved, and passing off the blame on a separate operation that is closely tied to itself that handles licensing of King's words seems like weak sauce.But this story gets even crazier. It didn't take long for people to look at the full "Drum Major Instinct" sermon that was the basis for the Dodge ad, and realize that, elsewhere in the speech, it included some rather pointed comments about advertising -- and explicitly mentioning car advertising as the kind of thing he was complaining about:
We are so often taken by advertisers. You know, those gentlement of massive verbal persuasion. And they have a way of saying things that, kinda gets you on the vine. In order to be a man of distinction, you must drink this whisky. In order to make your neighbors envious, you must drive THIS type of car.... And you know, before you know it, you're just buying that stuff? I've got to drive THIS CAR, because it's something about THIS CAR that makes my car a little better than my neighbor's car.
Which, you know... looks pretty damning. So then the folks at Current Affairs took the original Ram commercial and overlayed it with that part of the speech.
And then they posted it to YouTube... where Chrysler issued a copyright takedown. No joke.
predictably, chrysler made youtube take down our reworked version of their appalling MLK ad, because they don't give a crap about either Martin Luther King or fair use. pic.twitter.com/n9MKTMEL11— Current Affairs (@curaffairs) February 5, 2018
Of course, the video is now back up, either because Chrysler realized how bad this looked or someone at YouTube decided this was safely in fair use territory. Either way, we're not embedding the original ad here, but you might want to see this reimagined one:Either way, as Michael Hirtzik at the LA Times notes in a thorough and fairly comprehensive article, this (once again) demonstrates why it's so problematic that this content is locked up, rather than open to the public. Hirtzik argues for moving the licensing efforts away from the King Estate entirely:
Given King's unique stature as a public figure, it's proper to ask why members of his family should have the last word on licensing. The easy answer is that it's because the law gives them that right. But that's a technicality, albeit a decisive one. But if they're really determined to protect their father's legacy, they should consider voluntarily turning over the decision-making process to a different, or at least a larger, entity. A foundation board comprising scholars and historians, for instance, with advisory roles for business experts and, sure, family members.The process should be open and transparent, so at least we don't have a situation where some corporation drapes itself in King's preacherly robes while the estate issues fatuous excuses that a TV commercial embodies "Dr. King's philosophy." That doesn't make anyone involved look good, or honest.
But, I wouldn't jump so quickly over the "the law gives them that right" part. We should zero in on that and ask why? Why is this the proper public policy result? Why do we allow copyright to be granted on such a thing? Why don't we more widely to allow such things to be used under fair use? Why are we so focused on locking up the legacy of people that we have to license every word they said, rather than letting the world make use of them to build on them, to comment on them and to share them more freely? The King Estate and its attempt to hide away from the blame over this licensing decision is one thing. But the underlying copyright issues should not be ignored as well. None of this would be possible if our copyright laws were sane and reasonable.
In the wake of the FCC's repeal of federal net neutrality rules, countless states have rushed to create their own protections. Numerous states from Rhode Island to Washington State are considering new net neutrality legislation, while other states (like Wyoming and New York) are modifying state procurement policies to block net neutrality violating ISPs from securing state contracts. These states are proceeding with these efforts despite an FCC attempt to "pre-empt" (read: ban) states from stepping in and protecting consumers, something directly lobbied for by both Verizon and Comcast.One of two California net neutrality laws, SB-460, passed 21-12 by the state Senate, and will now head to the state Assembly:
"Both bills are meant to give California officials rules to force Internet service companies to adhere to the principles of net neutrality to continue doing business within the state. Those principles broadly guarantee the makers of websites and apps equal access to Internet consumers without excess charges or special fees for faster service. The FCC threw out national net neutrality rules enacted in 2015 by the Obama administration, saying they were unnecessary."
Like other state efforts, the California bill mirrors the discarded FCC rules by prohibiting ISPs from engaging in paid prioritization and other anti-competitive behaviors while crafting sizable loopholes for the prioritization of medical services and "reasonable network management" practices. ISPs who violate these restrictions would be subject to financial punishment under California's existing consumer protection laws. The California law is a specific challenge to the FCC's attempt to hamstring state efforts to protect consumers, and should result in some interesting legal fireworks this year.Ernesto Falcon at the EFF argues in a blog post that California's legislation is open to ISP legal assault, and the state ignored many of the EFF's recommended improvements that would shielf the proposed law from the FCC's pre-emption efforts. The EFF also notes that what the California law attempts to accomplish could be accomplished by executive order anyway:
"If SB 460's approach to directly regulating ISPs is found to be invalid, ultimately all the legislation does is require state agencies to contract with ISPs that follow the 2015 Open Internet Order. While an important provision, it can already be required with a stroke of the pen tomorrow under a Governor's Executive Order much in the same way as Montana and New York. And while the 2015 Open Internet Order was a good start, why not bring to bear all the resources a state has to secure such an important principle for Californians?"
Those court battles will join the numerous other lawsuits that have been filed against the FCC by consumer advocacy groups and companies like Mozilla, who argue the FCC ignored objective data and the will of the public in the rush to repeal the rules. California is also participating in a lawsuit against the FCC by 21 state Attorneys General, several of which are also investigating how the FCC turned a blind eye to comment fraud during the net neutrality open comment period by "somebody" trying to downplay massive public opposition to the effort.As these state efforts accelerate, ISPs have begun to whine that it's unfair for them to have to adjust to numerous, discordant, state-level protection efforts, something they probably should have thought about before repealing arguably modest and very popular federal protections.
As readers of this site will know, once-venerated gaming giant Atari long ago reduced itself to an intellectual property troll mostly seeking to siphon money away from companies that actually produce things. The fall of one of gamings historical players is both disappointing and sad, given just how much love and nostalgia there is for its classic games. It was just that nostalgia that likely led Nestle to craft an advertisement in Europe encouraging buyers of candy to "breakout" KitKats and included imagery of the candy replacing a simulation of a game of Breakout. For this, Atari sued over both trademark and copyright infringement, stating for the latter claim that the video reproduction of a mock-game that kind of looks like Breakout constituted copyright infringement.As we discussed in that original post, both claims are patently absurd. Nestle and Atari are not competitors and anyone with a working frontal lobe will understand that the ad was a mere homage to a classic game made decades ago. If the products aren't competing, and if there is no real potential for public confusion, there is not trademark infringement. As for the copyright claim, the expression in the homage was markedly different from Atari's original game, and there's that little fact that Nestle didn't actually make a game to begin with. They mocked up a video. Nothing in there is copyright infringement.It was enough that I'm certain some of our readers wondered why Atari would do something like this to begin with. The answer is the recent news that a settlement has been reached in the lawsuit, and it was almost certainly that settlement that Atari was fishing for all along.
Vintage gaming company Atari has settled a lawsuit accusing Swiss foods giant Nestle of using one of its classic video games to sell Kit Kat bars to nostalgic gamers without permission. On Wednesday, U.S. District Judge Yvonne Gonzalez Rogers approved Atari’s request to voluntarily dismiss the case with prejudice.Both parties reached a settlement during a conference in Magistrate Judge Sallie Kim’s courtroom on Dec. 12, 2017, according to court records. The terms of the agreement are confidential.
So, while we don't know the terms of the settlement, it's incredibly common for megaliths like Nestle to throw settlement money at pests like Atari to make them go away. The settlements are often not anything like the potential rewards for the plaintiff if the case had gone to trial, but that's entirely besides the point. The point is to get the settlement. It's essentially free money, after all, reliably gained by filing lawsuits trolling successful companies with spurious legal claims that at best skirt the line of what intellectual property laws actually say.It's for that reason that trolls like Atari seek treble and punitive damages in these suits, merely as a way to alter the risk calculation for the legal teams of their victims. A company like Nestle, worth hundreds of billions of dollars, has easy math to do when it comes to deciding how to make this all go away. The problem with this is, of course, that not every company has billions of dollars of revenue coming in. It's the smaller companies that are truly victimized by IP trolls that fill their war chests with these kinds of easy settlements.
Karma works in funny ways sometimes. Over the past few years, we covered how actor James Woods filed a totally ridiculous defamation lawsuit against an anonymous internet troll who made some hyperbolic statements about Woods -- statements that were little different than what Woods had said about others. The case never went anywhere... because the defendant died. But Woods gloated over the guy's death, which just confirmed what a horrible, horrible person Woods appears to be.So, while we found the karmic retribution of someone else then suing Woods for defamation on similarly flimsy claims noteworthy, we still pointed out just how weak the case was and noted that, as much of an asshole as Woods was in his case against his internet troll, he still deserved to prevail in the case against him. And prevail he has. The case has been tossed out on summary judgment. While the opinion also details Woods continuing to do the assholish move of trying to avoid being served (his lawyers refused to give an address where he could be served and Woods refused to have his lawyer waive service requirements -- which is usually a formality in these kinds of things). Not surprisingly, the judge is not impressed by Woods hiding out from the process server:
It certainly appears that Woods is fully aware of the lawsuit, has retained a lawyer torepresent him in this matter, has received a copy of the Complaint (as evidenced by hisresponding Answer), and is willing to engage with the substance of the allegations (as evidencedby his Motion for Judgment on the Pleadings seeking a decision on the merits). Hissimultaneous refusal to waive service, to authorize his lawyer to accept service, or to provide hislawyer with an address where he may be served smacks of intentional evasion, a well-settledground for denying dismissal....[....]Woods denies he engaged in any gamesmanship because he twice notified Boulger thatservice was not yet complete, and because Boulger could have further attempted service throughdifferent means, such as by personally delivering a copy of the summons and complaint to thedefendant personally, leaving a copy at the defendant's dwelling or usual place of abode withsomeone of suitable age and discretion who resides there, or delivering a copy to an agentauthorized to receive service of process .... But Woods himself made all of these methodsimpossible by refusing to provide his lawyer with an address where he may be served or toauthorize his lawyer to accept service on his behalf.
Thankfully, the court isn't letting the big Hollywood actor man play games with the court.But, then the court gets to the meat of the case and does make the right decision. As much of a jerk as Woods has been throughout both of the cases we've discussed, he's legally on the right side of this. He did not defame Portia Boulger with his tweet questioning whether she was another woman. The background of the case, if you don't remember, is that there was a clip of a Trump-supporting Nazi woman, and some people started saying that it was a sort of false flag operation, saying that the woman was really Boulger, a well-known Bernie Sanders supporter. However, the two were obviously different women and Boulger wasn't anywhere near the rally where the Nazi-spouting woman was recorded. Woods had tweeted a "question": "So-called #Trump 'Nazi' is a #BernieSanders agitator/operative?" over a tweet from someone else making the claim that the woman was Boulger.In this case, it's that question mark at the end that saves Woods and actually makes the case a closer call than it should have been. Woods should have won easily, but here it really does seem to come down to the question mark:
Were it not for the question mark at the end of the text, this would be an easy case.Woods phrased his tweet in an uncommon syntactical structure for a question in English bymaking what would otherwise be a declarative statement and placing a question mark at the end.Delete the question mark, and the reader is left with an unambiguous statement of fact: Socalled#Trump 'Nazi' is [Portia Boulger,] a #BernieSanders agitator/operative.But the question mark cannot be ignored. The vast majority of courts to considerquestions as potential defamatory statements have found them not to be assertions of fact.Rather, a question indicates a defendant's lack of definitive knowledge about the issue andinvites the reader to consider various possibilities.
And thus, the statement is not defamatory. The court does note that merely adding a question mark alone is not enough to sheild someone from defamation (so don't get that idea!) but here it is enough to make the tweet protected.Again, this is a good (and correct) result, even if Woods' hypocrisy is on full display here. Not only did he try to evade service in this case and try to get it dismissed on those grounds, he remains the guy who continued to chase after an anonymous internet troll for saying a couple of marginally mean things about him on Twitter. One hopes that Woods will have learned a lesson from all this -- that filing defamation lawsuits against people over their angry tweet rants is a bad idea... but... that seems unlikely.
For some time, we've been following an odd trademark dispute between the city of Portland and a small brewery, Old Town Brewing, all over a famous city sign featuring a leaping stag. Old Town has a trademark for the image of the sign and uses that imagery for its business and beer labels. Portland, strangely, has pursued a trademark for the very same market and has attempted to invalidate Old Town's mark for the purpose of licensing the image to macro-breweries to fill the municipal coffers. What I'm sure city officials thought would be the quiet bullying of a local company without the breadth of legal resources Portland has at its disposal has instead ballooned into national coverage of that very same fuckery, with local industry groups rushing to the brewery's aid.The end result of all of this has been several months of Portland officials looking comically bad in the eyes of the public. Of all places, the people of Portland were never going to sit by and let their city run roughshod over a local microbrewery just so that the Budweisers of the world could plaster local iconography over thin, metal cans of pilsner. And now, despite sticking their chins out in response to all of this backlash for these past few months, it seems that the city has finally decided to cave in.
The city has surrendered in a battle over who gets to use the iconic image of a leaping stag from the Portland Oregon sign and will not seek a trademark that would conflict with one already owned by a local brewery. The city will give up on obtaining a trademark that it could license to any beer or alcohol company to use on cans, bottles, glasses, packages or tap handles. In return, Old Town Brewing will allow Portland to grant alcohol companies the right to use the image of the famous sign on local advertising.
It's a good resolution to a dispute that never should have existed. Trademark law has become problematic generally, and in the craft beer industry more specifically, but there was nothing in what Old Town was doing that was improper. The brewery had a local connection to Portland, properly attained a trademark for the image of the sign, and then had to deal with the city pretending that none of that was true. In the end, the city has essentially accepted what Old Town's ownership suggested at the start of all this: go get your trademark, just don't tread into the alcohol market.
Before the negotiations, Milne had faced an uphill battle against the city to defend his trademark. He had advocated for more than a year that the city simply seek a trademark that did not infringe on beer, wine and alcohol. That's exactly what the city has agreed to do now. Milne will file a letter with the U.S. Patent and Trademark Office encouraging the agency to grant Portland's trademark application so long as it does not cross over into the category of beer, wine and alcohol.
And thus ends this David and Goliath story, with Goliath once again slain. Salud.
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