The EU is no stranger to bad laws, but its desire to "protect" copyright holders from the Wild West Internet™ is one of its worst. A proposed change -- known as Article 13 -- would force social media platforms and other service providers to preemptively block copyrighted content during uploads unless permission has been specifically granted by the rightsholder.Here's what Mike Masnick had to say about the impossibilities Article 13 would demand:
How would a site like Instagram create a working filter? Could it catch direct 100% copies? Sure, probably. But what if you post a photo to Instagram of someone standing in a room that has a copyright-covered photograph or painting on the wall? Does that need to be blocked? What about a platform like Github where tons of code is posted? Is Github responsible for managing every bit of copyright-covered code and making sure no one copies any of it? What about sites that aren't directly about the content, but which involve copyright-covered content, such as Tinder. Many of the photos of people on Tinder are covered by copyright, often held by a photographer, rather than the uploader. Will Tinder need to put in place a filter that blocks all of those uploads? Who will that be helping exactly? How about a blog like ours? Are we going to be responsible to make sure no one posts a copyright-covered quote in the comments? How are we to design and build a database of all copyright-covered content to block such uploads (and won't such a database potentially create an even larger copyright question in the first place)? What about a site like Airbnb? What if a photo of a home on Airbnb includes copyright-covered content in the background? Kickstarter? Patreon? I'm not sure how either service (which, we should remind you, both help artists get paid) can really function if this becomes law. Would they need a filter to block creators from uploading their own works?
There's a movement underway to destroy this proposal before it gets implemented. One of the internet's greatest collective creations/forms of communication (ymmv) is memes. Memes are almost always composed of copyrighted material, but no one would seriously argue they somehow diminish the market for the underlying content. Some would disingenuously argue this, and those are the sort of people who are pushing impossible filters to block third-party uploads.If it's memes that are (inadvertently) targeted -- along with the freewheeling nature of internet communications -- then it's memes that will be pressed into service to fight the war against Article 13. Beckett Mufson has compiled some of the best ones for Vice. The meme warriors started with a set of memes that cleared Article 13's copyright filters.
This was followed by a misguided, but hilarious, attempt to get the EU to destroy itself by placing its flag front-and-center when crafting memes.
Of course, the flag isn't capable of being targeted for preemptive takedown since it's in the Creative Commons, but the underlying message -- that the proposal is ridiculous and harmful -- still comes through.But the best of the batch is this one, which speaks to a great deal of our coverage of the EU and its bizarre treatment of copyright protection, free speech, and other ancillary issues. When a terrible, extremely harmful law is proposed by the EU, it's just another day at work for the governing body.
Only the most antagonistic of rightsholders would view memes as a destructive force pushing creators into poverty. But the EU's proposal takes exactly this hard line: it wants platforms to treat every bit of copyrighted material being uploaded as infringing by default. This won't just bankrupt smaller tech companies and make millions of users miserable. It will also do serious damage to internet communications in general, pushing platforms towards restricting users' interactions with the service, either by limiting their ability to post content or by suspending/deleting accounts for alleged Article 13 violations. The law is stupid and dangerous. Far too often, so is the EU.
In April, Mexican federal police arrested Keith Raniere, taking him from the $10,000-per-week villa where he was staying and extraditing him to New York. According to the NY Daily News, Raniere, leader of self-help group NXIVM (pronounced "nexium"), is now being held without bail while he awaits trial on sex-trafficking charges. Through NXIVM, he preached "empowerment," but critics say the group was a cult, and engaged in extreme behavior, including branding some women with an iron.This was not the first controversial program Raniere was involved in. In 1992, Raniere ran a multilevel marketing program called "Consumer Buyline," which was described as an "illegal pyramid," by the Arkansas Attorney General's office. More recently, he has collected more than two dozen patents from the U.S. Patent Office, and has more applications pendingincluding this one, which is for a method of determining "whether a Luciferian can be rehabilitated."
The USPTO has granted Raniere protection for a variety of curious inventions, including a patent on "analyzing resonance," which eliminates unwanted frequencies in anything from musical instruments to automobiles. Raniere also received a patent on a virtual currency system, which he dubbed an "entrance-exchange structure and method." He applied for a patent on a method of "active listening," and received patents on a system for finding a lost cell phone, and a way of preventing a motor vehicle from running out of fuel. NXIVM members reportedly identified their levels with various colored sashes, which helps explain Raniere's design patent on a "rational inquiry sash."Today, we're going to focus on Raniere's U.S. Patent No. 9,421,447, a "method and apparatus for improving performance." The patent simply adds trivial limitations to the basic functioning of a treadmill, like timing the user and recording certain parameters (speed, heart rate, or turnover rate.) Since most modern treadmills allow users to precisely measure performance on a variety of metrics, the patent is arguably broad enough that it could be used to sue treadmill manufacturers or sellers.Given Raniere's litigation history, that's not such a remote possibility. NXIVM has sued its critics for defamationenough that the Albany Times-Union called NIXVM a "Litigation Machine." And Raniere sued both AT&T and Microsoft for infringement of some patents relating to video conferencing. The latter suit ended very badly for Raniere, who was ordered to pay attorneys' fees after he couldn't prove that he still had ownership of the patents in question. So it's worth taking a look at how Raniere got the '447 patent.Raniere's Law Raniere has never been shy about proclaiming how special he is. His bio on a website for Executive Success Programs, a series of courses run by NXIVM, explains that he could "construct full sentences and questions" by the age of one, and read by the age of two. Raniere was an East Coast Judo Champion at age 11, recruits are told, and he entered college at Rensselaer Polytechnic Institute by age 16. The honorifics continue:
He has an estimated problem-solving rarity of one in 425,000,000 with respect to the general population. He has intellectual patents pending in the areas of human potential and ethics, expression, voice and musical training, athletic performance, commerce, education and learning, information processing and human modeling. He also holds several technological patents on computer inventions and a sleep guidance system.
Raniere may be able to convince NXIVM followers that he is a one-in-425 million level genius. A new article from Vanity Fair explains that, inside NXIVM, Raniere's patents were often used as evidence of his brilliance. But how did Raniere convince the US Patent and Trademark Office of his inventing abilities?Ultimately, he didn't really have to. Taking a close look at the history of Raniere's patent application shows how the deck is stacked in favor of a determined, well-funded applicant. For someone who's determined to prove they're a great inventor, and is reasonably well-funded, the patent office can ultimately be cowed into compliance.In this case, Raniere's original patent application claimed a "performance system" with a "control system" and a sensor for monitoring "at least one parameter." His examples went beyond exercise: he intended to patent humans making mathematical calculations at increasing speed, or a weightlifter decreasing the time between repetitions.
Appropriately, the examiner rejected all 13 of his proposed claims. But nothing stops patent applicants from coming back and trying againand againand that's exactly what Raniere did. To his bare-bones description of a "performance system" he added this dose of jargon:
Wherein said control system includes a device to determine a point of efficiency, said point of efficiency occurring when the linear proportional rate of change in  at least one parameter of the subject being trained varies rapidly outside of the state of accommodation and the range of tolerance.
Whew! That's a lot of verbiage just to explain that the same "performance system" is measuring how fast changes occurs. The patent would be infringed by any treadmill that could measure a changing variable. Even though earlier patents had described essentially the same thingRaniere's lawyers insisted that his idea of measure the "rate of change" was "completely different" from a system that used a "precalculated range."The examiner rejected Raniere's application again, noting that an older patent for an exercise bike attached to a video game still fulfilled all the elements of Raniere's new, jargon-filled patent.But Raniere simply paid $470 to file a "request for continued examination," and kept pounding his fist on the proverbial table. Raniere, or his lawyers, bloated Claim 1 up with yet more language about the point of efficiency occurring "just prior to the subject no longer being able to accommodate additional stress" and entering a state of exhaustion, and claimed now that it was this more narrow description that was his stroke of genius."Nowhere in [earlier patent] Hall-Tipping is it suggested that the user be exercised to the point of exhaustion," pointed out Raniere's lawyers, this time around.Rejected again, they had an interview with the examiner before coming back with yet another $470 "continued examination" request. Then Raniere loaded up Claim 1 with almost twice as much language about the system repeating itself, and re-measuring new "points of efficiency."This went on and on [PDF], with Raniere continuing to change language and add limitations. Eight times, the examiner threw out every single one of his claims. Finally, after he added language about the "range of tolerance" being plus or minus two percent, his claims were allowed.In his specification, Raniere was typically un-self-effacing. He crowed that he had created "Raniere's Maximal Efficiency Principle" or "Raniere's Law." (The guy is clearly into branding.)Unfortunately, this is par for the course. Determined patent applicants get an endless number of chances to create a piece of intellectual property that just barely avoids all the other patents and non-patent art that overworked patent examiners are able to find. The strategy is: find a basic process, and slowly add limitations until you get a patent. That's how we get patents on filming a yoga class and Amazon's patent on white-background photography. The fault lies not so much with the examiner here, but with the Federal Circuit for interpreting patent law's obviousness standard in a way that effectively prohibits the Patent Office from relying on common sense.So what's the solution? We need the Federal Circuit to apply the Supreme Court's decision in KSR v Teleflexmore faithfully and allow the Patent Office to use common sense when faced with mundane claims. We also need to defend the Alice v. CLS Bank ruling so that examiners can reject patents that claim abstract ideas implemented with conventional tools (like treadmills). Patent law should also be changed so that applicants don't get an endless number of bites at the apple.Reposted from the EFF's Stupid Patent of the Month series.
The International Spectrum Conference for 2018 covered a lot about modernizing systems and re-inventing your IT environment for both new and existing developers. See what you missed at this year's four days of education, networking, and more.
About a month ago we learned that PUBG Corp., the company behind the game PlayerUnknown's Battlegrounds, had sued Epic Games, makers of Fortnite, earlier this year in South Korea. This whole dust up between the two game developers has been monumentally frustrating, specifically due to the folks at PUBG being confused as to whether video games get any IP protection (they do!) and, then, whether fairly generic game modes and game genres are afforded copyright protection (they're not!).The problem for PUBG in all of this is that its game mode of a battle royale pitting a hundred players against each other is simply not something that fits into copyright law's protection. As we've explained, there is an idea/expression dichotomy in many country's copyright laws, in which the specific expression is afforded copyright but mere ideas are not. For example, the art assets for PUBG absolutely are copyrightable, while the concept of a battle royale is not. Due to that, PUBG's lawsuit was always going to face a steep uphill climb to come out in its favor.With that in mind, then, it's probably not terribly surprising that PUBG has now dropped the lawsuit entirely.
The studio behind PlayerUnknown’s Battlegrounds has dropped its lawsuitagainst the creators of global sensation Fortnite, ending a legal battle between two of the world’s hottest games.PUBG Corp. sent a letter of withdrawal to Epic Games Inc.’s attorneys on Monday and the South Korean case has since closed, according to the website of the local court system. PUBG and its law firm confirmed the action but wouldn’t say why, nor whether a settlement had been reached. Representatives for Epic in Korea had no immediate comment.
There is of course no way to be sure, but with PUBG not crowing about a settlement, it's plausible none was ever reached. Certainly on the merits it would make much more sense for the legal team for PUBG to have finally convinced the executives there that either the case was not likely to be a winner, or that their interests were better served not entering into a lengthy and expensive legal battle with Epic, or both.Complicating all of this is how intertwined PUBG and EPIC are, from ownership of both to the technology behind PUBG.
Both are part-owned by social media and gaming giant Tencent Holdings Ltd. and have carved out commanding positions in the Battle Royale format. But PUBG contended in January that Epic’s Fortnite mimicked many of the characteristics of its own title. To complicate matters, Epic provides PUBG with its Unreal Enginetechnology, used to create PlayerUnknown’s Battlegrounds and an industry standard for professional game developers.
All of this would seem to add up to PUBG finally coming to its senses. Ultimately, that's a good thing for all parties, but it would be great if game companies motivated by jealousy didn't attack one another in the first place.
Thankfully this is not a post about the Monkey Selfie case, which should have ended by now but has not. Instead it's about Lenz v. Universal, the Dancing Baby case, which shouldn't have come to an end yet, but has. This week the EFF announced that the case has been settled.The problem though isn't that it the case has been settled. It had been remanded for trial, which would have been a long, expensive slog to not accomplish what the case really needed to accomplish: put teeth back into the Section 512(f) remedy that the DMCA is supposed to afford to deter illegitimate takedown demands. The problem is that the opportunity to provide that benefit was extinguished when the US Supreme Court denied cert and refused to review the Ninth Circuit's interpretation of that provision. So we'll be stuck with this precedent until another case can prompt another look by the court and the serious issue of censorship-via-takedown notice can finally get the judicial attention it deserves.Maybe it will even be a case where a monkey has taken a video of himself dancing along to music, because the rights of monkeys have so far been a lot more successful in attracting en banc attention from the Ninth Circuit than the speech rights of people. And maybe it won't even take 10 years of litigation (that's 32 in monkey years) to find out.
Last year, the GOP and Trump administration used the Congressional Review Act to dismantle FCC consumer broadband privacy protections before they could take effect last March. While AT&T and Comcast whined incessantly about the rules, the FCC's guidelines were relatively modest; they required that ISPs and mobile carriers be transparent about what data is being collected and sold, and get express consumer opt-in consent before ISPs can share more private financial or location data. Such rules could have gone a long way in protecting consumers in the wake of the recent Securus and Locationsmart location data scandals.Following the ISP-funded attack on FCC authority and consumer protections, states have begun exploring their own privacy protections (mirroring what we're also seeing on the net neutrality front). For example, California last year considered passing a state-level copy of the FCC's gutted privacy rules. But those efforts hit a political brick wall thanks to the collective lobbying muscle of Comcast, Verizon, AT&T, Google and Facebook, which killed that effort by lying repeatedly about what the proposal actually did, including claims the proposal would "aid extremism."Verizon and Facebook both pretended to back away from those attacks once their efforts gained press exposure, but those promises don't appear to be worth much.In the wake of the successful attack on FCC privacy rules, California privacy advocates have been pushing a new ballot initiative, this time dubbed the California Consumer Privacy Act of 2018. The initiative would require that companies be fully transparent about what data is being collected and sold (and to whom), as well as mandating mandatory opt-out tools. The proposal goes further than the FCC's discarded rules, in that it would ban ISPs from trying to charge consumers more for privacy, something that has already been previously implemented by AT&T and considered by Comcast.The new initiative is scheduled to appear on this November's ballot, and Google, Facebook, and large ISPs are once again working in concert to ensure that doesn't happen ahead of a looming Thursday afternoon deadline. They're collectively now pushing for quickly-hacked together "compromise legislation," AB 375, they're hoping will be significantly weaker than the looming November ballot initiative.
"In addition to Facebook, Google, AT&T, Microsoft, Amazon, Verizon, and the California New Car Dealers Association have each contributed six figure donations to the Chamber account set up to defeat CCPA. Uber, the Data & Marketing Association, Cox Communications, and the Interactive Advertising Bureau have each contributed $50,000 to the account, according to disclosures."
Recall, Facebook recently made a big show earlier this year about how it wouldn't be working to undermine such privacy proposals in the wake of the Cambridge scandal:
"The inclusion of a Facebook representative is notable, given the company's well-publicized announcement earlier this year that it would end its opposition to the initiative. In February, the company provided $200,000 to an account set up by the California Chamber of Commerce designed to defeat the CCPA initiative. But in April, following revelations about the extent to which British consulting firm Cambridge Analytica provided the Donald Trump campaign with illicit access to Facebook user data, Facebook announced that it would withdraw its opposition to CCPA and not provide additional funding to the Chamber account."
As the GDPR clearly illustrates, there's some real peril in pushing through solutions before ironing out all of the potential pitfalls. Both the scotch-taped together AB 375 and the California Consumer Privacy Act (a pet side project of San Francisco real estate developer Alastair Mactaggart) have some notable problems that would have been aided by a longer, more transparent and inclusive discussion. Though the problems with AB 375 (which, again, if passed would eliminate the latter from contention) are notably worse, in large part because the bill was quickly cobbled together in just under a week behind closed doors:
"By tomorrow, the California legislature likely will pass a sweeping, lengthy, overly-complicated, and poorly-constructed privacy law that will have ripple effects throughout the world. While not quite as comprehensive as the GDPR, it copies some aspects of the GDPR and will squarely impact every Internet service in California (some of whom may be not currently be complying GDPR due to their US-only operations). The GDPR took 4 years to develop; in contrast, the California legislature will spend a grand total of 7 days working on this major bill."
Not only was AB 375 a rush job, the bill has been steadily eroded since introduction by this super group of telecom and Silicon Valley lobbying giants. AB 375 just passed out of the out of the Senate Judiciary Committee, meaning it's most likely going to be the California privacy proposal of choice. And the fact that it's a rush job is not apparently of much concern to the bill's backer:
"Assemblyman Ed Chau, an Arcadia Democrat and the chief bill author, said he doesn't like the rushed process forced by the ballot measure deadline, but he stressed that his bill gives Californians important privacy protections."
With that mindset, it's easy to wind up with a privacy law that sounds good ("look ma, I "fixed" privacy!") but doesn't actually do anything. And when you've got lobbyists from AT&T, Comcast, Verizon, Facebook, Google, Amazon and Microsoft disproportionally dictating the overall trajectory of the law, the chances that you're going to end up with weak-kneed "privacy rules" in name only is pretty monumental. Adding speed for speed's sake -- combined with an overall lack of transparency -- only adds to the potential that the rules you end up with are toothless or packed with unintended consequences.That said, doing nothing isn't an option. This isn't a problem that magically fixes itself.Modern consumer privacy oversight in the internet-era currently consists of little more than pinky swears and winks, a point driven home repeatedly by the Cambridge, LocationSmart and Securus scandals. We need to have a lengthy, transparent, adult conversation about what a potential solution might look like. The problem is that the larger companies dictating the conversation have an absolutely abysmal track record on these issues, so while they may have valuable insight on the complicated scope of a particular proposal's impact, they've managed, repeatedly, to shoot their credibility squarely in the foot on this subject.And while ISPs and Silicon Valley giants like to go on at length about how they're "open to having a conversation" about more meaningful privacy guidelines, the reality is that most of these larger companies simply aren't. Any rules worth their salt will cost them money, since an informed, empowered consumer is more likely to opt-out of data monetization schemes, whatever they look like. As a result, you'll be hard-pressed to find many large ISPs or Silicon Valley giants willing to back truly tough consumer protections, especially rules than mandate express, opt-in consumer consent for things like location or financial data.Eventually, after we've suffered through a few more hacks, breaches and major scandals, some of these companies may shift their thinking toward the idea that compliance with quality, even-handed rules is more profitable than chaos. But as the ham fisted repeal of the FCC privacy rules makes clear, we're nowhere near that point yet. Meanwhile, on the federal level, the Trump administration is rumored to be considering a broad new privacy plan. And if the administration's equally heavy-handed net neutrality repeal is any indication, objectivity, hard data and transparency aren't likely to have much of a seat at the table there, either.
It's not entirely clear what motivations lie behind Barrett Brown'sKickstarter project, but you have to imagine it has to partially be an extended middle finger to the DOJ.Journalist Barrett Brown was tried and convicted on a handful of charges related to the act of journalism. He ended up with a 63-month sentence and a $890,000 restitution order -- some of which was tied to this activity.
[A] key part of the initial charges included the fact that Brown had organized an effort to comb through the documents that had been obtained from Stratfor via a hack. The key bit was that Brown had reposted a URL pointing to the documents to share via his "Project PM" -- a setup to crowdsource the analysis of the leaked documents. Some of those documents included credit card info, so he was charged with "trafficking" in that information.
Brown made his situation worse by threatening federal agents, but the prosecution originally stemmed from his sharing of Stratfor documents. The link-sharing charge was ultimately dropped, but the DOJ included it in the indictment, trying to turn sharing a URL into trafficking in stolen credit cards.Compare that summation of the DOJ's prosecution with Brown's new "Pursuance Project."
Pursuance is open source software that provides a better way to organize online. It provides an integrated suite of digital tools, all designed to allow activists, researchers, journalists, artists, coders – anyone with talent and a little time – to collaborate on projects large and small, working within customized, evolvable entities called pursuances. (Think of a pursuance as a mission-oriented project/organization/group that people on the platform can join and contribute to.)
So… crowdsourcing knowledge/skillsets to engage in activism or journalism or whatever. This may include sharing access to leaked documents, much like those Brown was prosecuted for. But this won't all be out in the open. Steps will be taken to shield collaborators from those opposed to their efforts. Two-factor authentication will be baked in, along with "Tor by default." On top of that, pursuers[?] are given tools to keep The Man from surveilling their projects.
We're including a robust permissions system that allows you to invite people at various trust levels. At the minimum trust level, the person you've invited can only see and only work on the tasks you've assigned them; they can't see the rest of the task hierarchy, and they can't see who else is involved, thus limiting the possible damage done by malicious infiltrators.
This sounds very much like Brown wants to get back to the work he was doing before the federal government interrupted his life with trumped-up charges. More journalism, more collaborations, and a suite of tools to keep those who view investigative journalism as threatening locked out of the process.
Snark is a wholly underrated tool for dealing with trademark bullies. While we've seen it employed in the past, the victim of trademark bullying turning the tables on the bully with humor is something that still is far too rare. One brewery recently showed exactly how this is done.Voodoo Brewery has been selling its H2P IPA since 2014, with a can label that nods towards the University of Pittsburgh, where the brother of the brewery's founder went to school. It was only in late 2017 that the school sent out a cease and desist letter, claiming trademark infringement.
Voodoo started selling H2P in its original can in 2014. The beer grew in popularity and was twice featured on Pitt’s campus after its release. Then, in October, Pitt called Voodoo and asked it to cease and desist distributing the “H2P” IPAs with the school’s trademarked image, font and phrase. Voodoo released the newly designed cans a few weeks ago and they sold out in a couple of days.Voodoo’s chief executive office, Matteo Rachocki, said that he and others at Voodoo were surprised at Pitt’s cease and desist request, since the beer was on the market for three years prior.“We had been invited on campus to pour the beer twice, so we had just kind of assumed that we had their blessing,” Rachocki said.
That obviously wouldn't hold up as any kind of a legal argument, although one wonders what exactly explains the delay in Pitt's enforcement. The beer was not only known to the school, but had been displayed on campus, I assume specifically because of the tie in with the school. That sounds like it should have been an awesome example of a school understanding that the education and alcohol sectors are not common marketplaces, and working to support an alumnus. That possibility is now gone, with the school taking the strong arm route.Well, it doesn't appear that Voodoo will be deprived of the last laugh, even as it complies with Pitt's C&D.
Rachocki met with Pitt officials Jan. 22 to work out a deal that would allow Voodoo to use Pitt trademarks. Rachocki said the new design for the can labels was on the conference room table when Pitt officials came to meet at the brewery. He said he presented the cans to make University officials aware of the brewery’s plan for the IPA if they couldn’t secure rights to Pitt’s trademarks. After an initially encouraging meeting in January, Rachocki said Pitt stopped responding to his emails.The new cans still feature Pitt’s trademark blue and gold color scheme, but that’s where any allusions to Pitt end. The cans now read “NON-TRADEMARK INFRINGEMENT ALMA MATER IPA” with no other Pitt-related images.
The name refers both to the bullying Pitt did, as well as the fact that alumni work at Voodoo Brewery. Frankly, that's not a good look for Pitt in the public, but it's a wonderful example of how far a little snark can go in responding to trademark bullying.
While it's always great to have ISPs side with their customers rather than capitulate to copyright trolls or the governments that allow them to operate, few go to equal lengths as Swedish ISP Bahnhof. Bahnhof is known for taking all kinds of actions to protect its customers and for fighting back against copyright trolls as viciously as possible. Happily, Sweden's Pirate Party has recently declared its own war on copyright trolls, giving the ISP an ally in the region.But as the crusade by Bahnhof continues, the person in charge of the ISP's communications has published an open post on the company's site attacking the very heart of the laws that allow copyright trolls to operate in the first place. Here's how Carolina Lindahl sets the stage for what is currently going on in Sweden.
Lindahl notes that the Swedish Government sees a need for strict copyright infringement penalties while keeping the barriers for creators to go to court low because they often have limited resources.“In copyright litigation […], it is often the author himself who is a party, and usually the author has limited financial resources,” the Government’s code for Penalties for Certain Serious IP violations reads.
When it comes to the low barriers in the Swedish legal system for allowing copyright holders to unmask ISP customers and go after them for settlements, this is the entire justification. And, look, you can understand how this would seem logical to many people. A musician, or author, or indie filmmaker needs to be able to protect him or herself from copyright infringement in a way that is low-barrier in cost and time. It was with those types of content makers in mind that the Swedish government organized its current copyright law.The problem for that same government is that Lindahl is dedicated enough to have dug into the data to find out if the premise that built these laws actually holds up. It does not. Not even close.
Lindahl sifted through the legal paperwork related to copyright infringement cases filed at the Criminal Court, to see which companies are behind them. The research uncovered 76 cases, the majority of which formed the basis for the tens of thousands of piracy settlement letters that were sent out. Only five of these cases were filed by the creator of the work, Lindahl notes. In other instances, the creators were represented by intermediaries or licensees, such as Copyright Management Services and Crystalis Entertainment. While these companies may have the legal right to pursue these cases, they are not the original creators of the films they sue over.“The government’s claim – that it is often the author himself who is a party – does not seem to be correct at all,” Lindahl writes.
Lindahl goes on to note that the other premise, that these plaintiffs are authors of limited financial resources, is also untrue. Going through the cases that have led to copyright trolling efforts again, they tend to have been brought by organizations that have millions in revenue. Because of a reality that differs from the government's premise, Lindahl argues that the end result is the extortion of citizens who actually are of limited means.
“The result is an extortion operation that is profitable for already profitable media companies and costly for young people, retirees, and other individuals on the margin, without the capability to tackle sudden costs of thousands of kronor."
Frankly, this is as complete a takedown of the false reasons for allowing copyright trolling to be legal as I've seen to date. The Swedish government has a problem in that it's reasoning for setting this copyright system up is on the record. That reasoning, as Lindahl has shown, is flawed beyond use. So that makes the law rather flawed as well.
Over the past decade or so we've seen lots of arguments from legacy industries -- mainly recording industries, publishing industries, and film industries -- freaking out about Google and Facebook. The go-to response generally seems to be to run to the government and demand that they force the successful internet companies to transfer some of their wealth to the legacy industries. In some cases, these pleas appear to be working -- such as with the link tax proposal in the EU.Generally speaking, this whole thing is pretty disgusting. It's usually legacy private companies which had a successful business model under a previous system, failed to adapt to a changing world, and then act as if they're magically entitled to someone else's money. Of course, that's not how it should work (even if sometimes it does). But I'm interested in comparing this approach to the approach of Wikipedia, whose executive director, Katherine Maher, has an article in Wired arguing that Google and Facebook should consider giving back to the site, especially seeing as those platforms are increasingly relying on the information within Wikipedia.While the title of the Wired piece is provocative -- "Facebook and Google must do more to support Wikipedia" -- it's a title that Maher notes was not chosen by herself and which might not directly represent her views:
And that's correct, because the article itself is much more nuanced. Rather than demanding a forced transfer of wealth from government, or simply demanding that Google and Facebook pay up, Maher does a great job of making the case that Google and Facebook ought to give back to the commons considering how much they're now relying on it. This is especially true today as both companies have started leaning more heavily on Wikipedia to deal with disinformation (i.e., more direct usage of Wikipedia's content, and not just finding what other people have posted in their usual way):
You may not realise how ubiquitous Wikipedia is in your everyday life, but its open, collaboratively-curated data is used across semantic, search and structured data platforms on the web. Voice assistants such as Siri, Alexa and Google Home source Wikipedia articles for general knowledge questions; Google's knowledge panel features Wikipedia content for snippets and essential facts; Quora contributes to and utilises the Wikidata open data project to connect topics and improve user recommendations.More recently, YouTube and Facebook have turned to Wikipedia for a new reason: to address their issues around fake news and conspiracy theories. YouTube said that they would begin linking to Wikipedia articles from conspiracy videos, in order to give users additional - often corrective - information about the topic of the video. And Facebook rolled out a feature using Wikipedia's content to give users more information about the publication source of articles appearing in their feeds.
Maher points out that (unlike some others) Wikipedia is thrilled to see that the value of what they've created is being recognized and is so valuable. It's a true validation of the idea that many people spent years mocking. But, Maher suggests, if the tech companies are going to rely so heavily, they ought to consider giving back in ways as well. As she notes, Wikipedia itself works because so many individuals are generous in ways they can be:
But at a deeper level, Wikipedia works because people are generous. Millions of people have contributed their time and effort to create and curate tens of millions of articles simply to share knowledge with the world. And they want that knowledge to be free for everyone. But even the most altruistic creator appreciates a nod for their work and the resources to keep going. Everyone knows the difference between tending a community garden for the use of their neighbours, and tending it for a company to throw a corporate picnic.
And tech companies that are using that content could also help out:
As companies draw on Wikipedia for knowledge - and as a bulwark against bad information - we believe they too have an opportunity to be generous. At Wikimedia, we already love and deeply appreciate the millions of people around the world who make generous charitable contributions because they believe in our values. But we also believe that we deserve lasting, commensurate support from the organisations that derive significant and sustained financial value from our work.And it's not just us. From groups that set open standards, such as IETF, ICANN and W3C, to organisations that support critical open source projects, such as the Software Freedom Conservancy, to Creative Commons, which enables us to share creativity freely, to the digital knowledge and data commons supported by Wikimedia, we do the work that helps the rest of the internet thrive.
There's a lot more in the piece, and I find it fascinating. It's also different than the legacy companies, in that it's coming from a non-profit that has always survived solely on donations. It's an organization that knows how to ask for support, rather than demand or expect it. At one level, there are similarities to the arguments of the old school legacy companies. But the approach is so very different. Rather than threatening and demanding, this approach is welcoming and collaborative. It's appealing to the better nature of those companies, rather than just scolding them and screaming about how they're evil. One wonders what kind of internet and cultural community we might have if the legacy companies had tried that approach in the early days, rather than the antagonistic approach they did take.I have no idea if this approach will work. But it's fascinating to see and to contrast it with the legacy players.
The Supreme Court -- in a narrow decision (both in scope and votes) -- has restored a little more of the Fourth Amendment. The long-awaited decision [PDF] in the Carpenter case has been released and the Supreme Court finds, in a 5-4 decision, that cell site location info (CSLI) is technically a third-party record but worthy of the Fourth Amendment's protection.The defendant challenged the government's warrantless acquisition of 127 days of CSLI, arguing that the constant location records generated (without proactive assistance from phone users) by cell providers raised enough of a privacy issue the Fourth Amendment was implicated. Somewhat surprisingly -- given the long history of expansive readings of the Third Party Doctrine -- the Supreme Court agrees.
[W]hile the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.
The court notes simply venturing out into the public does not erase all privacy expectations. The pervasive tracking engaged in by phone companies for business reasons should not undo a person's reasonable expectation of privacy. While the government tried to compare it to tracking vehicles with GPS devices, the court notes that cars cannot go everywhere people go. Long-term tracking -- made possible by provider recordkeeping -- provides the government with detailed depictions of cellphone users' lives. And all of this was -- up until this decision -- only a subpoena away.
[H]istorical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.[...]Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.
The ubiquity of cellphones has changed the Third Party Doctrine dynamic. The court isn't willing to give the government warrant-free access to the personal lives of millions of Americans.
Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.
That's the substance of the decision, but the whole thing is worth reading in full. Even the dissents are worth a read, if only to see how many justices would prefer the government treat long-term tracking as no different than bank records people voluntarily create with every transaction. The court will extend the Third Party Doctrine to cover historical CSLI. However, it does not extend that coverage to cover tower dumps, real-time CSLI (ping orders/Stingray use) or any other records otherwise covered by the Third Party doctrine. But this is still a significant Fourth Amendment win -- and law enforcement agencies using CSLI subpoenas to cover Stingray use will now need to craft warrant requests specifying what they're doing, which will make just a little bit tougher to engage in parallel construction.More than half the page total is given over to the dissent. Justices Kennedy and Alito have written separate dissents that say pretty much the same thing:
1. The records were obtained from a third party so no warrant should ever be needed.2. This will law enforcement's work more difficult.
Even if the latter is true, Constitutional protections protect the citizens from their government. If they're an obstacle, they're meant to be. The court isn't there to ensure easy government access. It's there to act as a check against any government overreach it observes.Justice Thomas' dissent is perhaps the most infuriating read. Much like his dissent in other law enforcement-related cases, Thomas sides with the government while claiming he's siding with the Constitution. His main argument here is that the Fourth Amendment says nothing about privacy or reasonable expectations, therefore the court's decision is wrong. It guards people and papers, not stuff obtained from third parties, no matter how invasive these records can potentially be.Justice Gorsuch's dissent, however, is an entertaining read. It's really not even a dissent. He agrees with the majority's decision but doesn't think it goes far enough. If Gorsuch had his way, he would also return to a more originalist view of the Fourth Amendment -- the property rights theory he pitched during oral arguments. But unlike Thomas, his would eliminate the court-erected Third Party Doctrine and grant privacy to records created by customers/users and held by third parties. These decisions (Smith, Miller, Katz) would instead be replaced with a property-based treatment of records, giving customers/users more ownership rights to third-party records they create, making them part of the "houses and papers" Fourth Amendment interpretation even if the the "papers" are held by others.
I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz-based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The Sixth Circuit was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared. Returning there, I worry, promises more trouble than help. Instead, I would look to a more traditional Fourth Amendment approach. Even if Katz may still supply one way to prove a Fourth Amendment interest, it has never been the only way. Neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.
This is a big ruling and it will definitely affect how law enforcement approaches investigations. It will not be well-received by those used to tracking people via subpoena (rather than tail cars and surveillance teams). But it likely won't do much for Carpenter, who will almost certainly find good faith awarded to law enforcement's acquisition of his CSLI records. It will help going forward, but Carpenter will not be a beneficiary.
Buckle up, because this seemingly mildly interesting story has a ton of intersections on topics we typically talk about here at Techdirt. As a preface, you should recall that we firmly believe that content is advertising and advertising is content. By this we mean that every bit of content a producer makes serves to advertise that producer's wider content library and that advertisements, in order to be engaging, must be useful and/or entertaining every bit as much as more traditional content typically is. We've also talked a great deal about how content producers in the digital spaces must connect with their fanbases, treat them well, and provide them what they want, or risk backlash. Add to that, finally, that we think restrictive protectionism in the name of wider profits often achieves the opposite of that goal.Which brings us to Microsoft and Nintendo somewhat suprisingly teaming up to push out a bunch of ads centered on the ability for users of either to crossplay games across both systems.For those of you who cannot see the video embed, it's an ad put out by both Nintendo and Microsoft pointing out that gamers on both systems can crossplay with one another on some games, including the example shown in Minecraft. Frankly, it's quite jarring to see these combo-ads (there are more) put out by two rivals in the console space. If you weren't well-tuned to the video game industry, you'd probably be left wondering what the hell was going on here.The answer is that these ads are rather entertaining trolling attacks targeting Sony's Playstation 4, which has been the subject of some recent backlash coming out of E3 over the platform's lockdown on its system's games. While there is pretty much no such thing as a Playstation user that does not want crossplay enabled, and there are many who want it very much, Sony has gone the protectionist route. This is an attempt to convince friends of friends to buy Playstations so that they can play together, I suppose, but it's stupid and awful.
Some of the world's biggest games, from Fortnite to Minecraft to Rocket League, all support some variety of crossplay, allowing people with PCs, Xbox Ones, mobiles and Nintendo consoles to play on the same servers. Yet Sony continues to refuse to allow PlayStation consoles to get in on the fun when it comes to playing with Microsoft or Nintendo consoles.In the wake of E3 and the disappointment of Fortnite's account locking, then, two of the companies that do allow crossplay have teamed up to take a swing at the PlayStation 4 with this commercial for Minecraft, a game that's also available on PS4.
A couple of reactions. First, Sony made this shit-sandwich for itself by not giving its customers what they want for no other reason than protectionism, so it's not without fun to see them have to eat it up. Second, the combo-ads put out by Microsoft and Nintendo are both useful and, if you enjoy watching huge companies troll one another, fairly entertaining. And the companies have kept this up as a coordinated effort, rather than just limiting it to a one-off video ad.
And the Xbox Twitter account responded, of course, happily saying they're ready to build something together. While this might have flown right past many gamers, enough will realize that both companies are going out of their way to rub Sony's nose in crap to make this all a bit fun. Whether Sony will respond to the ribbing by finally unlocking its garden remains to be seen.In the meantime, though, this is a great example of advertising as content.
The cable & broadcast industry has gone to some pretty absurd lengths to avoid having to adapt to the cord cutting era. As ad-skipping DVRs started to become popular, the industry's response wasn't to embrace natural evolution, it was to file a bunch of lawsuits and creatively harass companies that were trying to give consumers what they wanted. Similarly, as cord cutting has grown thanks to sky-high prices and ad break fatigue, the industry's overall response was to first raise prices like it was going out of fashion, then try to speed up or edit down programs in the hopes of shoving more ads into each viewing hour.None of these "solutions," you'll be shocked to learn, actually slowed down the sector's evolution or the exodus of cable TV consumers to more flexible, less costly streaming alternatives. Alternatives that are, you'll note, actually listening to users and giving them what they're asking for (usually).More recently, we've seen broadcast and cable executives begrudgingly admit that they can't just keep doubling down on the same dumb ideas and expect a better outcome. As a result, we've seen some broadcasters experiment with lower advertising loads during prime time. And we're also seeing to see the industry get a little more creative as to what modern advertising actually means, even if many of these offerings aren't likely to solve the problem either.For example, NBC has pondered bringing back the bygone era of product placement, something that can easily go wrong if handled poorly. Similarly, Fox outlets like Fox Broadcasting, FX, at the National Geographic channel announced this week that they'll soon start experimenting with replacing ads with short "inspirational videos" funded by the pharmaceutical and insurance sectors:
"Starting this fall, Fox outlets like Fox Broadcasting, FX, Nat Geo and their digital counterparts will begin running inspirational videos that tell stories about people who have overcome adversity. These tales won't take part over the course of 22 episodes, but will instead show up during advertising time, and Fox hopes to get marketers to sponsor them. Pharmaceutical companies, sports advertisers, insurance marketers and wellness firms are viewed as potential candidates that might consider attaching their names to vignettes of various lengths about people triumphing over cancer, the loss of a limb, or even blindness."
Executives at Fox are calling these "inspirational vignettes" or "unbreakables," in that they're supposed to keep the viewer's attention fixed to the screen:
"Fox is expected to unveil the idea for the inspirational vignettes, known as Unbreakables, Monday at the Cannes Lions advertising festival in France. As part of our relentless pursuit of providing the best viewing experience and the highest performance for marketers, we are turning ad time into brand storytelling time, says Michael Shields, senior vice president of sales strategy for Fox Networks Group, in a statement."
Short stories funded by major corporations seeded between programming sound a lot like... advertisements. And while you have to credit the industry for actually trying something new, this will do nothing to thwart cord cutting if the content in question isn't actually compelling. We've talked in the past about how good content is advertising and how good advertisements should be good content -- but do you really think that what comes out of this will be good content?A better option for the cable and broadcast sector is to finally acknowledge that the cash-cow cable TV days of yesteryear are gone, they're not coming back, and that cable operators and broadcasters are going to have to actually try and compete now. That's going to require competing on price, service flexibility and customer service (gasp) instead of just doubling down on bad behavior. Many cable and broadcaster execs have grown so pampered from years of cozy deals and muted, "wink wink" style non-price competition that they're under the false impression that they have any real say in the matter.But that's how competition works. You don't much have a choice in the matter, and you can either adapt your business model to the new paradigm, or you can slowly but surely become an outdated relic surpassed by more nimble, flexible companies that actually provide what the customers want. Better ads are certainly part of that equation, but they're only a small portion of what's wrong with the traditional cable TV model.
The First Amendment covers a whole lot of area. Since it covers "expression," it doesn't necessarily have to be anything commonly thought of as "speech." It doesn't have to be printed. It doesn't have to be said. Lighting a flag on fire requires no statement of intent. The act itself is expressive enough. Passively gathering information (like recordings or public records) is protected by the First Amendment. Taking photos is a protected act, even if the photos are never used to express anything more than a memory of an event or place.It has been argued nudity or partially-exposed bodies are expressions deserving of protection by the First Amendment. Exotic dancers and "bikini barristas" have engaged in multiple free speech lawsuits targeting allegedly unconstitutional restrictions on their expressive conduct.A plaintiff currently suing a sheriff and the head of the California Highway Patrol is arguing that honking a car horn is protected speech and that the citation she received after engaging in this expression is unconstitutional. (via Courthouse News)Susan Porter was driving by a protest held outside of Rep. Darrell Issa's office. These frequent demonstrations gathered both protesters and counter-protesters, all of who made plenty of noise. Passing traffic would express their support/displeasure for Issa by honking their horns. (Which would make not honking your horn similarly protected expression, although it's unlikely anyone would be cited for not honking their horn while driving by a protest.)The demonstation briefly attended by Porter drew the attention of local law enforcement, who showed up to hand out citations to protesters. Porter was parked in a nearby parking lot. When the cops showed up, Porter decided to clear out. As she drove away past the protesters and newly-arrived law enforcement officers, she sent off one last car horn blast of support. Cue unneeded officer involvement. From the lawsuit [PDF]:
After Ms. Porter sounded her horn in support of the protest, Sheriff's Deputy K. Klein ("Deputy Klein"), ID. Number 7275, directed Ms. Porter to pull over.Deputy Klein told Ms. Porter she was pulled over for sounding her vehicle horn, and issued her a citation for alleged violation of Vehicle Code 27001, which states that "[t]he driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn," but "[t]he horn shall not otherwise be used, except as a theft alarm system" (emphasis added). Cal. Veh. Code 27001.Section 27001 does not require that the use of a horn meet any specified noise level, disturb the peace, distract drivers or pedestrians, or endanger safety.[...]Ms. Porter's citation… states that the citation was for violation of "27001(A) cvc [sic] -- unreasonable use of horn" and contains no allegations as to noise level, disturbing the peace, distracting drivers or pedestrians, or endangering safety.
It looks like Deputy Klein didn't like being honked at (though he wasn't) by some protester slipping away from the scene of the crime in her vehicle and tagged her with a "don't fuck [with] the police" ticket. I'm sure he never expected his department would be named in a civil rights lawsuit, but that's the sort of thing that happens when the law is used in ways it shouldn't be. If these law enforcement officers were that concerned about horn noise, all they had to do was camp out outside Issa's office and hand out horn tickets all day long. But law enforcement is never about consistent enforcement. It's highly selective and sometimes the law that ends up being enforced isn't the one officers had in mind when they initiated the stop. (But that's a completely different amendment.)In this case, her honked horn wasn't a violation of the law, but rather her way of "convey[ing] a message of support for the protest." But it was also a violation of the law, if officers wanted to get technical. And Deputy Klein certainly did.Selective enforcement of seldom-enforced laws around demonstrations and protests is a great way to rack up civil liberties violations and their attendant lawsuits. Porter claims the deputy's decision to enforce the states horn ordinance out of the blue creates a chilling effect for politically-inclined drivers like herself.
Ms. Porter regularly drives her vehicle in areas of San Diego County and the State of California where the Sheriff's Department or California Highway Patrol is responsible for traffic enforcement.In driving her vehicle in those areas, Ms. Porter observes rallies, protests, demonstrations, or other events for which she would like to express her support through use of her vehicle horn.Given the citation issued to her and her knowledge of the statute, Ms. Porter reasonably fears that the Sheriff's Department or California Highway Patrol will enforce section 27001 against her if she uses her vehicle horn for such expressive purposes.As a result, Ms. Porter is censoring herself by refraining from using her vehicle horn for expressive purposes, including but not limited to expressing support for political protests, rallies, or demonstrations.
It seems like a ridiculous legal hill to die on, but it does raise a valid point: if officers are going to use a horn ordinance to selectively punish supporters of certain causes, the state is basically placing itself between residents and their ability (however limited its usefulness in this particular application) to petition their government.This will make for an interesting case. Porter isn't alleging anything but an ongoing First Amendment controversy due to the state's restriction on horn use. The state will likely claim the public is served by a law that discourages people from blowing their horns whenever they damn well please, but those arguments are going to sound kind of ridiculous when actually verbalized. Is a law really necessary to keep horns from blaring constantly? Or has it long been accepted horns do double-duty as expressive speech, delivering pithy messages like "You suck at driving," "You suck in general," "Your ride is here," and "I heartily approve/disapprove of this issue being debated freely in the marketplace of ideas, which is apparently located at Rep. Issa's office at the moment."Whatever the basis for the law, it was pretty clearly used here to express a law enforcement officer's distaste for the message conveyed by Porter, even if the message the deputy received was "I support the people you're currently citing for other legal violations," rather than the one Porter intended to send. Since it would be almost impossible to carve out a protest-only waiver on horn restrictions, the court either has to find the law unconstitutional in whole or decide it can be selectively used to punish ostensibly political speech. However it decides to handle this, it should be a fun case to watch.
Eight years after Minnesota's vague ban on "political" apparel at polling places was first challenged, the Supreme Court has finally struck the ordinance down as unconstitutional. The law allowed election judges to decide whether or not someone's t-shirt or button or whatever sent a "political" message that might somehow sway the vote.The law covered far more than overt messages about political parties or specific candidates. According to the state's arguments, it could be read as covering anything possibly pertaining to referendum issues and/or issues any political candidate had expressed an opinion on. This lead to a spectacular bit of oral argument [PDF] when the state's lawyer tried to explain what may or may not be covered by the apparel ban.
MR. ROGAN: Well, Your Honor, the political has a -- has a plain meaning in our statute based on that it -- it's influencing elections. What I -- all that I'm describing is that something that is political, for example, that is known to only a few people but is clearly political, is not going to be something that's going to be reasonably understood by voters in the polling place.JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?MR. ROGAN: A shirt with a rainbow flag? No, it would -- yes, it would be -- it would be permitted unless there was -- unless there was an issue on the ballot that -- that related somehow to -- to gay rights.JUSTICE ALITO: How about a shirt that says "Parkland Strong"?MR. ROGAN: No, that would -- that would be -- that would be allowed. I think - I think, Your Honor -JUSTICE ALITO: Even though gun control would very likely be an issue?MR. ROGAN: To the extent -JUSTICE ALITO: I bet some candidate would raise an issue about gun control.MR. ROGAN: Your Honor, the -- the - the line that we're drawing is one that is - is related to electoral choices in a -JUSTICE ALITO: Well, what's the answer to this question? You're a polling official. You're the reasonable person. Would that be allowed or would it not be allowed? [...]MR. ROGAN: I -- I think -- I think today that I -- that would be -- if -- if that was in Minnesota, and it was "Parkland Strong," I -- I would say that that would be allowed in, that there's not -JUSTICE ALITO: Okay. How about an NRA shirt?MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that's a clear indication -- and I think what you're getting at, Your Honor -JUSTICE ALITO: How about a shirt with the text of the Second Amendment?MR. ROGAN: Your Honor, I -- I -- I think that that could be viewed as political, that that -- that would be -- that would be -JUSTICE ALITO: How about the First Amendment? (Laughter.)MR. ROGAN: No, Your Honor, I don't - I don't think the First Amendment. And, Your Honor, I -CHIEF JUSTICE ROBERTS: No -- no what, that it would be covered or wouldn't be allowed?MR. ROGAN: It would be allowed.
The point Alito makes is simple: a ban on policitized apparel, especially one written this broadly, is subject to the interpretation of the person making the judgment call, each of which will have their own definition of "political." The state can only argue that some things might always be permissible, but for everything else, it's likely cover up or get cut out of the democratic process.This exchange is paraphrased in the Supreme Court's decision [PDF], which finds the law too vague and internally inconsistent to be considered constitutional.
The statute does not define the term “political,” a word that can broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New International Dictionary 1755. The State argues that the apparel ban should be interpreted more narrowly to proscribe “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.” At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel.The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such a rule—whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot—is not reasonable.
On top of the that, the law could be read to encompass apparel not even considered remotely "political" until it's being worn by a person trying to vote in Minnesota.
Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue confronting voters in a given election.” For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions on matters of public concern. If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned? [...]Take another example: In the run-up to the 2012 election, Presidential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation. Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked to cover up his uniform?
The state claimed it made clear delineations, all of which somehow were subject to the "reasonable" interpretation of magically-unbiased election judges. As the court points out, the law is capable of defeating the rationale of its own defenders, thanks to its lousy construction.
The State’s “electoral choices” standard, considered together with the nonexclusive examples in the Election Day Policy, poses riddles that even the State’s top lawyers struggle to solve.
It's not impossible to keep a polling place free of overt political messages, but the state legislature's attempt is particularly terrible, expanding the definition of "political" until it can be read to cover almost anything other than a blank t-shirt. The law -- standing since the late 19th century -- is now effectively dead, determined to be too unconstitutional to serve the public as it attends to its democratic duties.
A few weeks back, we wrote about some unpublished censorship guidelines that provided insights into what the Chinese government is trying to stamp out online. However, one of the more curious activities whose depiction was forbidden was "vulgar use of a microphone controller". That seemed both surprisingly specific, and yet tantalizingly vague. A new post on Abacus News may explain what was meant by that phrase. It reports on yet another censorship move by the Chinese authorities:
the country's anti-pornography office ordered a number of platforms to remove a lot of ASMR content -- because they say some are akin to softcore porn.
a term used for an experience characterized by a static-like or tingling sensation on the skin that typically begins on the scalp and moves down the back of the neck and upper spine. It has been compared with auditory-tactile synesthesia. ASMR signifies the subjective experience of "low-grade euphoria" characterized by "a combination of positive feelings and a distinct static-like tingling sensation on the skin". It is most commonly triggered by specific auditory or visual stimuli, and less commonly by intentional attention control.
The banned videos in China typically show people -- well, nearly always young women -- whispering into special high-quality binaural microphones that aim to capture audio the same way our ears hear sounds. As well as producing extremely realistic results, the microphones also allow sounds to move from one ear to the other -- best experienced with headphones to enhance this effect -- as if the person speaking is right next to you, and moving around very close to you.The women in the videos whisper, rather than speak, because it has been found to be the most effective way to produce ASMR's characteristic "tingling" sensation. But ASMR videos also include the sounds of people licking, kissing, and rubbing the microphones in various ways -- which may explain that "vulgar use of a microphone controller" the Chinese authorities want to censor. As a representative example, the Abacus News points to a two-hour long YouTube video of one of the ASMR stars in China, Xuanzi Giant 2 Rabbit:
In the video, she speaks softly into an ear-shaped microphone, taps it, covers it in plastic, even rubs a Q-tip inside it, creating a variety of sounds to trigger ASMR.But she does it while dressed in the revealing outfit of Mai Shiranui from The King of Fighters, and whispers things like "Husband, your highness, do you have any instructions?" In another clip, wearing the same outfit, she strikes a provocative pose on the bed.ASMR is even referred to as "in-skull orgasm" by many Chinese internet users, highlighting the sexual image of some videos.
It's not hard to see why China's anti-pornography department might want to block this kind of thing. However, as a short video by The New York Times exploring the phenomenon makes clear, mainstream ADMR is rather different from these Chinese variants. The aim is to relax rather than excite, and to tap into what may be a calming physiological response similar to that produced when animals groom each other. In any case, the Chinese attempt to censor ASMR videos seems pretty hopeless:
After hearing about this crackdown, we tried to search by the keyword "ASMR" on some of China's biggest streaming platforms, like Bilibili and Douyu. The searches yielded no results. But the videos still appear if you go directly to the playlists of many ASMR hosts. And since they're not banned in the West, many are available on YouTube.
This probably means we can expect yet another Chinese crackdown on ASMR videos at some point in the future, and yet another failure to eradicate that "vulgar use of a microphone controller".Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
You may recall that about this time last year, the House of Representatives put together a budget that included funding for a brand new military branch dubbed the Space Force. At the time, our take is that this was always inevitable, as humanity tends to carry its war-making luggage everywhere we go and, since we go to space, we're going to have a Space Force. More surprising was the pushback from those who have a thing or two to say about military matters, such as Secretary of Defense James Mattis, who noted that setting up a new military branch was hellishly complicated, and required congressional approval.
Mattis, in a letter to Rep. Mike Turner -- an Ohio Republican leading the congressional effort against the Space Corps -- said he was opposed to adding "additional organizational and administrative tail" to the Pentagon."At a time when we are trying to integrate the Department's joint warfighting functions, I do not wish to add a separate service that would likely present a narrower and even parochial approach to space operations," Mattis wrote.
One can read that as government-speak for: "No, this is stupid, why are you proposing this, everything is going fine, hey, is this thing even on?" Currently, space-based operations for the military are headed up by the Air Force Space Command. There is no denying that orbital operations are critical to the success of the United States military, given all of the satellite assets currently floating around the near-inky void. There has also been no indication that the Air Force is not up to the job, given the current lack of space-based infantry skirmishes or ground (ahem) operations.This week, however, President Trump directed the Pentagon to create his new Space Force. It would be absolutely absurd not to notice the timing of the announcement that grabbed at least some of the headline space from news organizations that would otherwise have been directed at video and audio of toddlers in cages as they wept openly for their parents. It seems the Dear Leader couldn't help but notice this timing either, even as he made his announcement.
In remarks that ranged over a variety of unrelated topics, Mr. Trump began by saying current U.S. employment levels were the best "in recorded history" and blaming current immigration problems on the Democrats, saying "we have the worst immigration laws in the entire world" and that ongoing issues could be resolved "very quickly if the Democrats come to the table."Turning his attention to space, the president praised the National Space Council and its chairman, Vice President Mike Pence, for its work re-focusing national space policy, saying "for too many years, our dreams of exploration and discovery were really squandered by politics and bureaucracy. And we knocked that out.""My administration is reclaiming America's heritage as the world's greatest space-faring nation," he went on. "The essence of the American character is to explore new horizons and to tame new frontiers. But our destiny, beyond the Earth, is not only a matter of national identity, but a matter of national security."
Look, space exploration is sorely in need of funding. That said, nothing about creating a new fighting force for space is going to be quick, easy, or bring about the kinds of results we could see either by funding current space exploration organizations (hey, remember NASA?) or private companies now taking up the challenge. As the Pentagon noted in its response, this foray into the final frontier is going to take a long, long time to set up.
The Pentagon's chief spokesperson Dana W. White issued a statement suggesting the process will take some time."We understand the President's guidance. Our Policy Board will begin working on this issue, which has implications for intelligence operations for the Air Force, Army, Marines and Navy. Working with Congress, this will be a deliberate process with a great deal of input from multiple stakeholders."
One can read that as Pentagon-speak for: "Uh, okay, but this is going to take, like, forever." Which, honestly, is probably besides the point. Whatever you might think of the current politics and immigration policy on display, there is little denying that this grand announcement came on the heels of a deluge of negative press and headlines for the President. Whatever side of the political spectrum you're on, hopefully we're all in agreement that space operations are important. If we do, then we should likewise agree that callous calls for massive new programs and full military branches being used as a distraction are an affront to that importance.
Some of us believe that all the different nations of the world are filled with people that are mostly the same, that share the same values, and the same troubles. If only we could find some unifying issue or force that could fully bring us together, then we could finally live in a kind of Lennon-esque harmony with one another. I submit to you that perhaps stupid trademark stories revolving around "Taco Tuesdays" could well be that thing. In America, for instance, a chain called Taco John's has spent the past few years waving around the trademark the USPTO stupidly gave it on the both generic and descriptive term "Taco Tuesdays", insisting that every other business that uses it stop immediately. How this mark was ever granted, given that it describes a good offered on the day it is offered -- tacos on a tuesday -- is a question that has kept me up many a night. Despite the trouble Taco John's has caused with this, the trademark remains registered and in place.And now it appears that Australia has its own version of this, featuring another company waving around another trademark for "Taco Tuesdays" that never should have been granted.
A stone’s throw into the city’s wild west sits Footscray’s Reverence Hotel, famed for its live music and cheap Tuesday tacos. After six years of dishing up the spicy fare, the landmark corner hotel is suddenly feeling the heat over a claim that it is infringing a trademark held by Mexican food chain Salsas Fresh Mex, which has outlets dotted across Melbourne including a site at Highpoint shopping centre. A letter from Salsas Holdings marketing manager Rebecca Woods to The Reverence Hotel demanded it stop using the phrase ”Taco Tuesday” on its website and social media accounts.“We assume that you are unaware that Salsas is the owner of the registered trade mark TACO TUESDAY in respect to the provision of Mexican-style food and restaurant services,” it states. “The Mexican-style food offered by Salsas under that trademark has become extremely well and favourably known among members of the public in Australia, and as a result is associated with Salsas.”
I'm going to keep hammering on this until someone listens, because this trademark is not valid. Period. Paragraph. Full stop. It does not identify a source. The phrase itself is generic and common in both the restaurant industry the world over and even in homes around the world. Tuesday is for tacos and nothing about the phrase has anything to do with any individual person or business.The folks at Footscray's had this same reaction in the most punk venue way possible.
Publican Matt Bodiam said his first reaction on opening the letter on Wednesday was amusement, but he soon realised the potential seriousness.“I had a bit of a giggle, then [thought] I better look into it,” he said. “I can’t believe someone can trademark ‘Taco Tuesday’; it would be like trademarking ‘Happy Hour’ or ‘Tight-Arse Tuesday’, although perhaps someone has trademarked those as well.”
Actually, the "happy hour" reference is only half right. In that phrase, we have an example of the generic language tons of businesses use. Taco Tuesdays is the same in that respect, except it's also descriptive. This isn't the protection of the consuming public, the very point of trademark law, but rather the locking up of language for commercial purposes. And it's dumb.But it also works. Salsas has enough of a legal warchest to make Footscray's fighting the good fight on this an absurd notion. It is far easier and less expensive to simply cow to the demands of the trademark bully than putting up a fight in court. Trademark bullying, in other words, works. But perhaps not without giving creative punk venue owners the last laugh.
Mr Bodiam said The Reverence would continue selling tacos on Tuesdays, but the night is now listed on its site as “Taco Sueday”.
It seems incredible, but the TPP trade deal is still staggering on, zombie-like. It's official name is now the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), but even the Australian government just calls it TPP-11. The "11" refers to the fact that TPP originally involved 12 nations, but the US pulled out after Donald Trump's election. The Australian Senate Standing Committee on Foreign Affairs, Defence & Trade is currently conducting an inquiry into TPP-11 as a step towards ratification by Australia. However, in its submission to the committee (pdf), Open Source Industry Australia (OSIA) warns that provisions in TPP-11's Electronic Commerce Chapter "have the potential to destroy the Australian free & open source software (FOSS) sector altogether", and calls on the Australian government not to ratify the deal. The problem lies in Article 14.17 of the TPP-11 text (pdf):
No Party shall require the transfer of, or access to, source code of software owned by a person of another Party, as a condition for the import, distribution, sale or use of such software, or of products containing such software, in its territory.
In its submission to the committee, the OSIA writes:
Article 14.17 of CPTPP prohibits requirements for transfer or access to the source code of computer software. Whilst it does contain some exceptions, those are very narrow and appear rather carelessly worded in places. The exception that has OSIA up in arms covers "the inclusion of terms and conditions related to the provision of source code in commercially negotiated contracts". If Australia ratifies CPTPP, much will turn on whether the Courts interpret the term "commercially negotiated contracts" as including FOSS licences all the time, some of the time or none of the time.
If the Australian courts rule that open source licenses are not "commercially negotiated contracts", those licences will no longer be enforceable in Australia, and free software as we know it will probably no longer exist there. Even if the courts rule that free software licenses are indeed "commercially negotiated contracts", there is another problem, the OSIA says:
The wording of Art. 14.17 makes it unclear whether authors could still seek injunctions to enforce compliance with licence terms requiring transfer of source code in cases where their copyright has been infringed.
Without the ability to enforce compliance through the use of injunctions, open source licenses would once again be pointless. Although the OSIA is concerned about free software in Australia, the same logic would apply to any TPP-11 country. It would also impact other nations that joined the Pacific pact later, as the UK is considering (the UK government seems not to have heard of the gravity theory for trade). It would presumably apply to the US if it did indeed rejoin the pact, as has been mooted. In other words, the impact of this section on open source globally could be significant.It's worth remembering why this particular article is present in TPP. It grew out of concerns that nations like China and Russia were demanding access to source code as a pre-requisite of allowing Western software companies to operate in their countries. Article 14.17 was designed as a bulwark against such demands. It's unlikely that it was intended to destroy open source licensing too, although some spotted early on that this was a risk. And doubtless a few big software companies will be only too happy to see free software undermined in this way. Unfortunately, it's probably too much to hope that the Australian Senate Standing Committee on Foreign Affairs, Defence & Trade will care about or even understand this subtle software licensing issue. The fate of free software in Australia will therefore depend on whether TPP-11 comes into force, and if so, what judges think Article 14.17 means.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
Julie4Sunderland.co.uk is maintained on behalf of Julie Elliott MP, a fellow member of the Digital, Culture, Media and Sport Committee. It serves third-party content from Facebook and upwards of 18 cookies on visitor's computers.Likewise, websites of fellow members Jo Stevens, Simon Hart, Julian Knight, Ian Lucas, Rebecca Pow and Giles Watling are also collecting data on behalf of the social networking giant from their visitors.The websites of Julian Knight, Ian Lucas, Giles Watling and Rebecca Pow also collect data on visitors for Twitter. Meanwhile, Rebecca Pow's website sets third-party cookies from YouTube.com.Damian Collins's website features a cookie message however the link in the message takes the user to a contact page that contains a form that requests the user's name and email address.The page on which the form resides contains a link that activates a modal window and encourages the user to sign-up for Damian Collins's email newsletter.Moreover, the Parliamentary page for the Digital, Culture, Media and Sport committee is also setting and serving third-party cookies and content from Twitter.
Now, you can reasonably argue that the websites of politicians aren't the same as a social media giant used by like half of the entire world. And there is a point there. But it's also worth noting that it's amazing how accusatory politicians and others get towards social media sites when they don't seem to live up to the same standards on their own websites. Maybe Facebook should do better -- but the very actions of these UK Parliament members, at the very least, suggests that even they recognize what they're demanding of Facebook is more cosmetic "privacy theater" than anything serious.
The video finds Sheriff [Darryl] Daniels, who announces to the viewer that criminals must leave his county or face the consequences. The camera follows him to the house, briefly focusing on a broken window before Daniels opens the door. Standing in the raided home, Daniels takes a large swig of his morning cup of coffee and declares, “Fifteen going to jail, three big gulps.”Despite the sheriff’s announcement, the “raid” resulted in only five adult arrests and one juvenile arrest, according to Elaine Brown, a lead records specialist at the sheriff’s office.
At best, maybe five will be going to jail. The sheriff depicts this as a raid on a "narcotics house" targeting opioids. The records obtained by The Appeal show no opioids were found during the raid. Four of the five adults were arrested for marijuana possession. The fifth was charged with MDMA and cocaine possession. But chances are those drugs might vanish along with the nonexistent opioids Sheriff Daniels proudly proclaims were taken out of circulation.Note the line about the field drug tests performed. These have already been proven bogus. A sheriff's office spokesman informed The Appeal that the 1.2 grams of heroin and fentanyl seized during the raid turned out not be opioids after being lab-tested. But the field tests told Sheriff Daniels everything he wanted to hear.The reliance on cheap, terrible drug field tests is part of Sheriff Daniels' drug-raiding tradition. Arrests and seizures sound great when you're dragging a camera through someone's house for a Facebook video, but when nothing holds up in court, you're left with an empty charade using citizens as clickbait.A former deputy contacted by The Appeal points out that cheap drug tests are just another tool for abusive police work.
“The really good ones cost money, but those take away your probable cause,” he said, referring to arrests and police searches for which error-prone drug test field kits can provide legal pretext. “It’s probably the cheapest ones they could get to do the minimum standards for an investigation.”
This same former deputy also pointed out the marijuana charges were trumped up. According to reports, 35 grams of marijuana were seized during the raid, but somehow two people are being charged with possession of more than 20 grams.Cheap tests, cheap vicarious thrills, and a whole lot of hype over drug charges that will likely dissipate into minimal punishment (if anything) once the lab tests arrive. That's how America's drug warriors roll. Sheriff Daniels rolls a little harder than most, but that's because tough-on-crime sheriffs are newscaster favorites. As The Appeal points out, Daniels has leveraged these videos to appear on national news networks and say ridiculous things like he's planning to treat all drug overdoses as homicides.This report points out some very unpleasant things about our war on drugs. Law enforcement officials may claim to recognize drug addiction as a sickness, but they're still far more interested in rounding up users than dealers. Faulty field drug tests allow officials to exaggerate their successes (and misrepresent the amount of dangerous drugs in the community), when not allowing them to perform searches they otherwise wouldn't have probable cause to perform. They're part permission slip, part unpaid PR rep. And this constant failure of field drug tests to accurately identify drugs gets ignored but local media, for the most part, isn't willing to follow up on high-profile drug raids to correct the record. And it keeps working because many Americans love the image of "tough on drugs" officers kicking in doors and waving guns around. But, far too often, "tough" just means dumb, brutish, and unconstitutional.
Crowdsourcing has obviously now been a thing for some time. Along internet timelines, in fact, crowdsourcing is now something close to a mature business practice and it's used for all manner of things, from the payment for goods created, to serving as a form of market research for new products and services, all the way up to and including getting fans involved in the creation and shaping of an end product. The video game industry was naturally an early adopter of this business model, given how well-suited the industry is to technological innovation. Here too we have seen a range of crowdsourcing efforts, from funding game creation through platforms like Kickstarter to empowering supporters to shape the development of the game.In that last example, it was Double Fine and Tim Schafer getting gamers involved in what would otherwise be the job of the creative team behind their game. The personalities here may matter greatly, because Ubisoft has recently unveiled an attempt to further get their fans involved in the game-creation process, yet many people are up in arms over it. Let's start with what Ubisoft is attempting with its anticipated next installment in the Beyond Good & Evil franchise.
The long-awaited sequel to a 2003 Ubisoft game that was critically loved but flopped at retail, Beyond Good and Evil 2 will take place in an open universe full of strange creatures and cultures. During its E3 press conference, Ubisoft said that fans will be able to help populate that universe with their own music and artwork through a partnership with a company called HitRECord, with that company’s founder, actor-turned-entrepreneur Joseph Gordon-Levitt, appearing on stage.The HitRECord-powered Space Monkey Program allows fans to submit ideas and works into a series of musical and visual categories like “devotional music,” “anti-hybrid propaganda,” and “anti-establishment art.” Other fans can then comment on and remix those works, which will ultimately be evaluated by HitRECord and—if they fit the game well enough—sent along to Ubisoft. Everybody who’s contributed at all to an accepted work will be paid.
If you're anything like me, your reaction to this was purely positive. Fans of Ubisoft titles and Beyond Good & Evil get to contribute to the game in a way they will recognize and be paid some amount of money for? How cool is that? Collaboration with fans on the creation of art is squarely in the realm of our CwF+RtB formula. To add some compensation to that makes this all the better. And, in my opinion, if this were anyone but Ubisoft doing this kind of thing, nobody would be pushing back on it at all. But because of Ubisoft's sketchy reputation, many are viewing this through purely cynical glasses and seeing nothing other than a company trying to avoid paying the full rate for the creation of its game.
Almost immediately after Ubisoft’s conference, critics and developers started asking questions: Why not just pay full-time, salaried developers to do this work? What happens if fans’ work doesn’t get accepted? Do they not get paid? Did they do it all for nothing?Scott Benson, the co-creator of the indie game Night in the Woods and a vocal advocate for workers’ rights, pointed out that HitRECord’s business model seems to rely on what’s known as “spec work,” short for “speculation.” This is a common but nonetheless ethically muddy practice in creative and design fields. When you do work “on spec,” you’re producing something that a buyer might decide to pick up and then pay you for.
Great, except this isn't being done in the "creative industry" at all, but rather directly with fans of the game franchise. Were Ubisoft trying to strong-arm artists for content it would otherwise pay for up front, then, yeah, this would suck. That's not what it's doing at all, though. Instead, the company is going directly to fans and asking them, rather than coercing them, to get involved in the project in a way those fans will find meaningful. Does this have the happy coincidence of being somewhat less costly? Sure. There's no denying that. But so what? If fans of a game are able to compete with the art created by the creative industry and want to do that type of thing under this platform, where exactly is the ethical dilemma? Were Benson to have his way, fans should be denied this opportunity because... why? Because someone else might not get paid? Where is the sense in that?There's also something to be said for HitRECord's meta-crowdsourcing experiment here and how interesting it will be to see if it can be pulled off.
“At HR, people build on each other’s ideas, and our website (and community) keeps track of how projects evolve—and how ideas influence one another,” HitRECord executive producer Jared Geller said in an email, noting that the company has paid out a total of nearly $3 million since it was founded in 2010. “So any contribution that is included in any of the songs or visuals (guitar parts, vocal stems, etc) delivered to the Beyond Good and Evil 2 dev team will get credited and paid. If your contribution isn’t used, you don’t get paid.”
So it's not just milking a fanbase for cheap labor, but allowing that fanbase to them play off of one another and build a community product, which will then be injected into the game and for which they will be paid. I mean, come on, if everyone could take their labor union hats off for just a second, they'd have to admit how cool an experiment this is. And, while HitRECord will have the ultimate decision-making authority on how compensation is divvied up between creators, it even takes feedback from multiple creators into account when making those decisions.The one area where there might be real concern is copyright infringement.
There are other possible complications, as well, said a representative of NoSpec, an organization that advocates against the practice of spec work.“When people who participate in spec work know that the chance of payment is slim-to-none, it invites the fastest possible turnaround, and we’ve found that spec websites (those that sell design contest listings) are rife with plagiarism,” wrote the rep in an email.
There is truth to this and Ubisoft and HitRECord have better have their shit in order if they don't want to turn this into some hellscape of accusations about plagiarism and copyright infringement. But if they can pull this off, the end result is going to be the injection of the voice of the fan directly into its game, which is about all we could hope for coming from a content producer.I'll end this with a thought experiment. Imagine for a moment if I had written this same post, except I did a find/replace for "Ubisoft" and replaced it with "Sole game creator." Does anyone really think the same level of outrage would exist? If not, then this isn't a moral question at all, but a monetary one. And if that's the case, it should go without saying that Ubisoft's reputation shouldn't prevent it from being able to try something good and cool with its fans.
There's an old saying: once is an accident, twice is a coincidence, and three times is a trend. It seems now we are officially in the coincidence part of that mantra. You will recall that we recently discussed famed author Chuck Palahniuk's apology for blaming piracy for his stagnant finances when the real story was that a business partner at his literary agency was simply stealing money from him. We noted at the time that this business partner was the one feeding Palahniuk the false story that piracy was responsible for his dwindling money and that such a story was made believable in part because of the efforts of the copyright industry and its lawyers demonizing the internet and copyright infringement at every turn.Well, recent news reports detail the sentencing of three Danish lawyers to years in prison for defrauding their copyright holder clients, while supposedly working for them on anti-piracy efforts. The organization now known as Rights Alliance, previously Antipiratgruppen, had hired lawyers from the Johan Schluter law firm for representation in piracy cases. The firm worked on these efforts for Rights Alliance for years before an audit showed just how shady these beacons of justice for rightsholders actually were.
Following an investigation into the company’s accounts by auditing company Deloitte, financial irregularities amounting to millions of dollars were reported in the media during 2015. The Johan Schlüter law firm should have been distributing huge sums to movie and TV industry associations and their underlying rightsholders but its three partners – Johan Schlüter himself, Lars Halgreen and Susanne Fryland – had been lining their own pockets instead. Massive sums were siphoned away from their clients.Yesterday, after more than 20 hearings during which the defendants maintained their innocence (with Schlüter and Halgreen painting themselves as victims of Fryland’s actions), all three were found guilty of fraud and false accounting to the tune of 100 million Danish kroner (US$15.83m).
Now, look, there are shitty people in every profession and I dare say that the legal industry is not underrepresented. Still, it says something that the very law firm rightsholders and an anti-piracy group hired in order to recover supposed losses of income due to piracy was itself bilking rightsholders to the tune of eight figure sums. And far from simply not reporting money collected, the Johan Schluter firm's incestuous relationship with groups "protecting" rightsholders, and the manner in which the firm used that relationship in order to improperly invoice for services not rendered, was spotlighted during the trial.
It transpired that in addition to being a partner in the law firm, Susanne Fryland was also a director of a subsidiary company which was responsible for managing registration, collection and administration rights for various film and TV associations. The prosecutor presented an email sent by Fryland to the account manager at the subsidiary noting that Johan Schlüter in Copenhagen was “screaming for liquidity”. When asked who was screaming, Fryland pointed the finger at Schlüter and Halgreen.“When they looked at liquidity in Copenhagen, did Susanne Fryland print an invoice to an association?” the prosecutor asked.“Yes,” Fryland confirmed.
All three lawyers have either been banned from practicing law, sentenced to prison, or both. And this is the firm that represented rightsholders against Danish citizens in piracy cases. While none of this excuses piracy or copyright infringement, boy, it sure would be nice if copyright holders and anti-piracy groups, paragons of virtue as they portend to be, wouldn't mind not using the shadiest lawyers they can find in their efforts.
A 64-year-old man, an Albanian with legal US citizenship, was stripped of more than $58,000 in cash by Customs and Border Protection at Cleveland's Hopkins Airport last year. Rustem Kazazi was headed to Albania with the cash to fix up his family's old home and possibly buy property there. The CBP claims... well, it really claims nothing, other than its right to Kazazi's life savings.CBP agents thought it was suspicious Kazazi would have so much cash on hand, despite Kazazi also carrying with him documentation of the cash's origin. That didn't slow the CBP's cash-hauling efforts at all. Asset forfeiture allowed the CBP to take Kazazi's money, say something ominous about violating federal law by not reporting the funds, and never bother charging Kazazi for all the violations the CBP claimed it spotted.It is illegal to take more than $10,000 in funds out of the country without reporting it. The problem is there's nothing in airports suggesting this is the case. Literature at airports, as well as information posted at the TSA's own website, do little to clarify what must be done if you plan to take money out of the country. Even if you do know what needs to be done, it's almost impossible to do before boarding a flight. The funds must be reported at the time of the departure. But they must be reported to a customs office, which is rarely conveniently located on airport property and very definitely never in the terminal.What's more, Kazazi was apparently planning to follow the law. According to his lawyer, he was going to fill out the forms at the "point of departure," which he assumed would be the Newark, NJ airport where his flight leaving the country would depart from.Kazazi's money was spotted by a TSA agent, who immediately reported it to CBP officers. This is something the CBP and DEA strongly encourage, skewing the focus from airline security (which is part of TSA's name) to scanning for dollars. The CBP agents made sure the whole experience was as awful as possible for Kazazi (whose command of the English language is limited) even before they walked off with his money.
"They asked me some questions, which I could not understand as they spoke too quickly," according to Kazazi's declaration. "I asked them for an interpreter and asked to call my family, but they denied my request."The CBP agents led Kazazi to a small windowless room and conducted multiple searches of him and his belongings, he said. According to Kazazi's declaration, the agents asked him to remove all of his clothing and gave him a blanket to cover the lower portion of his body. Kazazi said that a man wearing rubber gloves then "started searching different areas of my body."
After failing to find more cash hidden in the crevices of Kazazi's body, the CBP agents gave him a receipt for the money they were taking -- one with no dollar amount written in -- and handed out this fluff to the press when it came asking questions.
In a statement, a CBP spokesman said that "pursuant to an administrative search of Mr. Kazazi and his bags, TSA agents discovered artfully concealed U.S. currency. Mr. Kazazi provided inconsistent statements regarding the currency, had no verifiable source of income and possessed evidence of structuring activity," that is, making cash withdrawals of less than $10,000 to avoid reporting requirements.
The "artful concealment" was paper and the "inconsistent statements" can probably be chalked up to CBP's refusal to locate a translator. Cash spends better in foreign countries, especially those -- like Albania -- where banks aren't trusted and foreign currency preferable to the local version.Following this seizure, the CBP then did nothing, apparently hoping the Kazazi family would never ask for the money back. It had 90 days to begin to process the forfeiture but it chose instead to give conflicting information to Kazazi (detailed in his son's declaration [PDF]) and push the family towards "settling" for only a portion of the funds seized.The Kazazis chose to sue because, obviously, they don't trust the CBP to handle this honestly. First off, the CBP claims it took $57,330. Kazazi disputes this amount, stating he had $58,100 with him. The $770 difference may seem minimal, but it appears to another indicator of the CBP's untrustworthiness. According to Kazazi, he only took $100 bills. Therefore, a total of $57,330 is impossible. It almost looks as though the CBP took an unofficial service fee off the top before notifying the Kazazis of their right to dispute the forfeiture.The Institute of Justice has stepped in to fight for Kazazis, like it has in many other asset forfeiture cases. As it points out in its lawsuit [PDF], CBP had until April 17 of this year to begin processing the forfeiture. It hasn't and federal law says unprocessed forfeitures that pass the 90-day expiration date must be returned in full to their owners.Fortunately for Kazazi, this legal battle may be over already. Kazazi sued on May 31st. Following a conference with a district judge, the CBP has decided to return all of the money it took. Well, almost all of it.
The minutes of the proceeding says that customs officials told the judge that "they were beginning the process of tendering a check to Petitioner Kazazi in the amount of $57,330 plus interest."
There will be a little more legal wrangling because Kazazi wants back every cent the government took: $58,100. A bench trial has been scheduled, but it will be December of this year before his case is heard.This whole debacle shows two things: asset forfeiture ain't dead yet, despite its high-profile reputation for being thinly-disguised theft. And it shows the government can be forced to do the right thing without having to undertake a long and expensive legal battle. The turning point here appears to be plenty of negative coverage from the press, rather than the legal filing. But the lawsuit helps, as it makes it crystal clear the CBP is violating federal law by holding onto it past the 90-day deadline for processing.
One of FCC Chair Ajit Pai's claims about how he's changed the FCC is that he's making it more transparent. And, to be fair, he did make one key change that his predecessors failed to do: which is releasing the details of rulemakings before they're voted on. That was good. But in so many other ways, Pai has been significantly less than transparent. And this goes all the way down to incredibly stupid things, like his silly stupid giant Reese's coffee mug. That mug is so famous, that even John Oliver mocked it in his story on net neutrality:Taylor Amarel had some questions about the mug, and made a FOIA request using Muckrock, that might shed some details on the mug (and, perhaps, a few other things):
I would like to obtain all emails sent to, from, or copied to Deanne Erwin, Executive Assistant, containing any of the following non-case-sensitive key-strings: reeses, ethics, mug, liberals, or Reese's from January 1, 2017 to present day.
But the wonderfully "transparent" Ajit Pai... apparently didn't want that. The FCC's General Counsel sent back an oddly accusatory email to Amarel, demanding a ridiculous amount of completely unnecessary information -- claiming it needed that info to assess fees to respond to the FOIA request:
In our attempts to discern your fee categorization, we became aware that the name you provided, Taylor Amarel, is likely a pseudonym. In order to proceed with your request, please provide us with your name, your personal mailing address, and a phone number where you can be reached.... We ask that you provide this information by May 29, 2018. If we do not hear from you by then, we will assume you are unwilling to provide this information and will close your requests accordingly.
As Muckrock noted, there is no reason why anyone should need to prove that they are using their real name or to provide all this personal info to the FCC, and it feels like an intimidation technique. Muckrock does note that such info might be useful in determining if Amarel should be granted media status, which might help waive fees, but Amarel did not request to be covered under such status.Amarel handed over the info... and was then told that it would cost $233 to get the emails related to Pai's Reese's mug. Using Muckrock's own crowdfunding platform, users chipped in to fund the money, so hopefully at some point the FCC will live up to its legally required transparency and tell us about that stupid mug.
On April 16, 2015, the task force battered Betton’s door open with a ram, then almost immediately opened fire, releasing at least 29 bullets, nine of which hit Betton. One bullet pierced a back wall in the building, sped across a nearby basketball court and landed in the wall of another house. (This was a multi-family building.)
Betton was hit several times. He didn't die, but he doesn't have much left in working order. He lost part of his gallbladder, colon, and rectum. His liver, pancreas and small intestine all suffered damage. His left leg was broken along with one of his vertebrae.
The cops immediately set about justifying their extreme tactics. First, they claimed Betton fired at them, but ballistics tests showed Betton's gun hadn't been fired. Then they claimed he pointed a gun at them, but did not fire it. This could have easily been proven if any of the task force had bothered to activate their body cameras before breaking Betton's door down. But the footage shows no cameras were activated until after the task force stopped firing.
The task force used a regular search warrant, meaning the officers were supposed to knock and announce their presence. Nearly all of them said they followed these stipulations. Video from Betton's home security camera (which can be seen at the Washington Post) caught all these officers in a lie.
These 11 seconds of footage from that camera show that no member of the task force knocked on Betton’s door.
The video lacks audio, but both the Myrtle Beach police chief and a federal magistrate have since concluded that the video also strongly suggests there was no announcement. None of the officers’ lips appear to be moving, and it all happens very quickly. At best, they announced themselves simultaneously or nearly simultaneously, with the battering ram hitting the door.
A neighbor who was on Betton's sidewalk (and was told to lie on the ground by the task force on their way to Betton's door) backs up the camera footage. No announcement was made before the door was breached.
This is apparently standard operating procedure in Myrtle Beach. Only in rare cases does the task force seek no-knock warrants. (Task force officials say no-knocks are only "1-2%" of warrants obtained.) But they apparently serve plenty of normal warrants without knocking or announcing their presence.
It seems clear from the testimony in depositions that the 15th Circuit Drug Enforcement Unit doesn’t know any of this. Officer Christopher Dennis, for example, said that the “reasonable” waiting period for someone to answer the door begins the moment police arrive on the scene, not after they knock and announce themselves. This is false. Officer Chad Guess — who, remember, planned the Betton raid — said in a deposition that it’s “not the law to knock and announce. You know, it’s just not. It’s the officer’s discretion, each dictate determines itself.” This, again, is wrong. Officer Belue said under oath that he had no idea how long officers are supposed to wait before forcing entry, and that no one had trained him on the matter.
It's a convenient misunderstanding of the law. It's made even more convenient by the task force's lack of clearly-written policies on serving warrants. Since everyone of the task force remains as ignorant as possible, they're more likely to be granted immunity when victims of unconstitutional drug raids take them to court.
But these officers may not get off so lightly. Their reports and testimony have been disproven by the 11 seconds of video captured by Betton's security camera. Officers who swore they knocked and announced their presence now have to explain how those both occurred with zero officers knocking on Betton's door or even moving their lips.
More lies can be found elsewhere in the report. Officers stated in police reports they heard the sound of Betton's gun firing. Ballistics testing has shown Betton never fired his handgun, so everyone making that same claim about gunfire is either mistaken about what they heard or, more likely, aligning themselves with the narrative they created in the aftermath of the shooting.
Maybe these officers are hoping their professional ignorance will outweigh their bogus reports. The task force has made it incredibly easy for members to write their own rules when executing warrants. As Balko points, the single most invasive and dangerous thing the task force participates in (~150 times a year) -- warrant service -- has zero official policies dictating how task force members serve warrants. Apparently, all that time and effort went into creating a cool skull-and-crossbones logo for members to stitch on their not-very-coplike raid gear.
In any event, the court system is the last stop for justice. If any of these officers are ever going to be held accountable for their actions in the Betton raid, it will be here. Every level of oversight task force members answer to has already offered their official blessings for the knock-and-announce warrant that was carried out without knocks or announcements.
What happened to Julian Betton is an entirely predictable product of the failures, culture and mindset of the 15th Circuit Drug Enforcement Unit. And yet to date, state officials won’t even concede that this was a bad outcome, much less do anything to prevent it from happening again. Citing the SLED investigation, South Carolina solicitor Kevin Bracket cleared the officers of any wrongdoing within just a few months. In the three years since the raid, no officer involved has been disciplined, even internally. Nor has any officer has been asked to undergo additional training. No policies have been changed. The DEU never bothered with its own investigation, or even an after-action examination to determine what went wrong.
The police clear themselves of wrongdoing and a pending civil lawsuit has zero motivation effect on the drug unit. The task force is operating outside Constitutional boundaries with no internal guidance or effective oversight. Myrtle Beach-area drug warriors have no desire to clean up their act, and a large settlement paid by taxpayers is unlikely to result in a change of heart.
AT&T has defeated the DOJ in a court battle over whether or not the company will be allowed to acquire Time Warner for $86 billion.In a ruling (pdf), U.S. District Court Judge Richard Leon stated that the government failed to make its case that the merger would harm AT&T's competitors, most of which are now trying to keep pace in the streaming video space. Consumer advocates have routinely warned that AT&T will use its greater leverage to make must-have content (like Time Warner owned CNN or HBO) significantly more costly for companies hoping to compete with AT&T's own TV services, including its newish streaming video effort, DirecTV Now.That a company with a thirty-year history of anti-competitive behavior will likely use this greater leverage to behave badly shouldn't have been a particularly hard case to make, suggesting that DOJ lawyers may have flubbed key components of its case. The DOJ sued to thwart the deal last November, and while the agency claimed it was to protect consumers, the incongruity with other Trump administration consumer policies (like, well, everything) have fueled speculation that Trump's disdain for Time Warner owned CNN, or his close relationship with Rupert Murdoch may have colored the DOJ's decision to sue.It's an indisputable and massive win for AT&T, and the DOJ's first antitrust court loss since 2004. Leon didn't just kill the lawsuit, he didn't offer any conditions to mitigate potential anti-competitive problems, and largely urged the DOJ not to appeal. AT&T, as you might expect, was thrilled with the court's failure to block its latest megamerger:
"We are pleased that, after conducting a full and fair trial on the merits, the Court has categorically rejected the government's lawsuit to block our merger with Time Warner. We thank the Court for its thorough and timely examination of the evidence, and we compliment our colleagues at the Department of Justice on their dedicated representation of the government. We look forward to closing the merger on or before June 20 so we can begin to give consumers video entertainment that is more affordable, mobile, and innovative."
Anybody that has witnessed AT&T's versions of "affordable" and "innovative" likely isn't to buy that claim. This is, after all, a company that thought it would be a good idea to charge consumers more money just to protect their own privacy. It's also the same company that has been repeatedly dinged by government for either ripping off its own customers, or turning a blind eye while all manner of others did. Not surprisingly, more consumer-oriented folks like former FCC staffer and consumer advocate Gigi Sohn had a decidedly different take on AT&T's court win:
"Big media conglomerates are the winners and consumers are the losers with Judge Leon's decision. Merging AT&T, one of the largest cable, satellite and mobile broadband companies with Time Warner will lead to higher prices, fewer choices and perhaps more importantly, fewer voices. Coupled with the demise of the 2015 net neutrality rules yesterday, AT&T will be free to favor Time Warner content over its cable and its fixed and mobile broadband networks."
Numerous companies were waiting on the AT&T decision before pursuing their own, previously-unthinkable merger ambitions. Comcast, for example, has stated the company was holding off on making its $60 billion offer for Fox's remaining assets until it saw the outcome of the case. Sprint and T-Mobile are also considering a merger that's likely to reduce competition in wireless and kill tends of thousands of sector jobs.It's not just the AT&T merger that's problematic. The wave of major consolidation this loss will trigger, combined with the death of net neutrality protections opens the door to an absolute ocean of bad behavior by companies that have already clearly documented they'll stop at nothing to keep real competition at bay. And while the rise of streaming competitors crafting original content may mitigate some of this, you'd have to be pretty naive to think AT&T's stranglehold over broadband and media, combined with Trump era regulatory capture ends particularly well for the consumers and small businesses caught in its wake.
A bipartisan group of lawmakers is renewing a push for legislation to block states from mandating that technology companies build “backdoors” into devices they produce in order to allow law enforcement access to them.The measure is designed to preempt state and local governments from moving forward with their own laws governing encryption before the federal government acts on the issue.
The bill would prevent backdoor mandates, as well as encryption-subverting technical assistance demands or encryption bans.
A State or political subdivision of a State may not—(1) mandate or request that a manufacturer, developer, seller, or provider of covered products or services—(A) design or alter the security functions in its product or service to allow the surveillance of any user of such product or service, or to allow the physical search of such product, by any agency or instrumentality of a State, a political subdivision of a State, or the United States; or(B) have the ability to decrypt or otherwise render intelligible information that is encrypted or otherwise rendered unintelligible using its product or service; or(2) prohibit the manufacture, sale or lease, offering for sale or lease, or provision to the general public of a covered product or service because such product or service uses encryption or a similar security function.
This bill was originally introduced in 2016, back when the FBI was just getting its anti-encryption electioneering underway, but this time around appears to have a larger list of bipartisan sponsors.Since then, things have changed considerably. The FBI's claimed number of locked devices swelled dramatically, from a little under 800 to nearly 8,000 in less than two years. Its "going dark" rhetoric increased pace along with the increase in number of inaccessible phones.But the biggest change in the last couple of years -- a time period during which this legislation hasn't moved forward -- is the FBI's self-own. Forced to account for its growing number of locked devices given the multiple options available to crack the phones or obtain evidence located in the cloud, the agency finally decided to take a look at all the phones it had amassed. And it found it didn't have nearly as many as it had claimed. The 8,000 phones turned out to be somewhere between 1,000-2,000 (likely around 1,200 devices). The FBI blamed it on faulty software and has begun issuing corrections to the many, many public statements it published about the "going dark" problem.Given the FBI's disastrous discovery, the time would seem to be perfect to push forward with pro-encryption legislation. A new bill is on the way -- likely a carbon copy the 2016 proposal. It should pair nicely with another bill introduced in May, which would prevent federal agencies or courts from demanding companies create backdoors or otherwise weaken their encryption. The only exception would be for mandates or court orders stemming from CALEA, which would limit assistance demands to the interception of communications (with wiretap warrants), not the contents of locked devices.If both move forward, phone users will be protected on both ends from both levels of government. No backdoors, and no demands phone manufacturers kick down the front door so law enforcement can carry out their search warrants.
The New South Wales Police think they've figured out this whole drugs-and-music thing. To slow the entry of drugs (and drug users) to events where drugs (and drug users) might be found, they're going to station their most unreliable officers at the entrance and have them point out the people who should be forbidden from entering. From the NSW Police Facebook post:
Police are warning patrons attending the ‘Above and Beyond’ music festival at Sydney this weekend that drug detection dogs will be at the venue.The event will run from 6pm until midnight on Saturday (9 June 2018), at the Sydney Showground.Police warn that drug detection dogs will patrol the venue and can detect the presence of prohibited drugs or someone who has recently had drugs on them. If a dog makes an indication you will be denied entry.[...]Police will exclude any person from the venue that the drug dog indicates has or who has recently had drugs on them, regardless of whether drugs are located.
Last year, of the 15,779 searches conducted after police-dog identification, no drugs were found in 11,694 cases. Drugs were found in 4085 cases, resulting in a ''false positive'' rate of 74 per cent, said the Greens MP David Shoebridge, who obtained the figures
Those stats are from 2010. There's every reason to believe accuracy has improv...
A record 80 per cent of sniffer dog searches for drugs resulted in ''false positives'' this year, figures show.The figures obtained from the state government in response to parliamentary questions on notice show 14,102 searches were conducted after a dog sat next to a person, indicating they might be carrying drugs. But, in 11,248 cases, no drugs were found.
So, there's an 80% chance festival goers who get booted by a dog won't have any drugs on them, or near them, or only in residue form. And the determination can't be challenged by showing officers you're not carrying any drugs. If a dog says you're not allowed to enjoy the music festival, despite having shelled out at least $128, the dog's call is final.This is a very police state-ish thing to do. It allows police to arbitrarily boot people from venues, depriving them of both their freedom and their money. And it's a coward's way out. Rather than put their own reputations on the line, NSW police are simply going to shrug people express their anger at being kicked out of a concert for drugs they don't have and say a dog told them to do it.
A few weeks ago we, and others, filed an amicus brief in support of Airbnb and Homeaway at the Ninth Circuit. The basic point we made there is that Section 230 applies to all sorts of platforms hosting all sorts of user expression, including transactional content offering to rent or sell something, and local jurisdictions don't get to try to impose liability on them anyway just because they don't like the effects of those transactions. It's a point that is often forgotten in Section 230 litigation, and so last week the Copia Institute, joined by EFF, filed an amicus brief at the Wisconsin Supreme Court reminding them of the statute's broad application and why that breadth so important for the preservation of online free speech.The problem is that in Daniels v. Armslist, the Wisconsin Court of Appeals had ignored twenty-plus years of prior precedent affirming this principle in deciding otherwise. We therefore filed this brief to support Armslist in urging the Wisconsin Supreme Court to review the Court of Appeals decision.As in so many cases involving Section 230 the case in question followed an awful tragedy: someone barred from owning a gun bought one through the online marketplace run by Armslist and then shot his estranged partner. The partner's estate sued Armslist for negligence in having constructed a site where dangerous people could buy guns. As we acknowledged up front:
Tragic events like the one at the heart of this case often challenge the proper adjudication of litigation brought against Internet platforms. Justice would seem to call for a remedy, and if it appears that some twenty-year old federal statute is all that prevents a worthy plaintiff from obtaining one, it is tempting for courts to ignore it in order to find a way to give them that remedy.
Nonetheless, there was more at stake than just the plaintiff's interest. This case might look like a gun policy case, or a negligence case, but, like with Airbnb/Homeaway, this case was really a speech case, and laws like Section 230 that help protect speech are ignored at our peril because doing so imperils all the important expression they exist to protect.The reason it was a speech case is that, as in the Airbnb/Homeaway case where someone was using the platform to say, "I have a home to rent," here someone had used the Armslist platform to say, "I have a gun to sell." Because these platforms only facilitate these narrow topics of expression it's easy to lose sight of what's getting expressed and instead focus on the consequences of the expression. But that's the problem with these cases: someone is trying to hold an Internet platform liable for the consequences of what someone said, and that's exactly what Section 230 forbids.Tempting though it may be to try to find exceptions to that critical statutory protection, it is important to hold the line because Section 230 only works when it can always work. It wouldn't accomplish anything if platforms were only protected from certain forms of liability but still had to monitor all their users' content anyway. Congress recognized that such monitoring would be an impossible task and crippling to platforms' ability to remain available to facilitate users' speech. A major reason Section 230 exists is to protect speech from the corrosive effects these monitoring burdens would have on it. It is also why Section 230 does not let state and local jurisdictions impose their own monitoring burdens through the threat of liability, as the Wisconsin appeals court decision would do.
When someone shows you who they are, believe them - Maya AngelouLaw enforcement at all levels have shown us who they are. Unreliable, unprofessional, undisciplined, and corrupt to the depths of their souls. Unfortunately this is America, so there really isn't a viable solution.The cops are too cowardly to clean up their act. Legislators are too cowardly to pass reforms of almost any kind. And the judiciary, all the way up to the Supreme Court is too cowardly to do their fucking jobs and actually enforce the constitution. District attorneys can have video and audio of cops murdering people in cold blood and refuse to bring charges.Every single time the list of the most corrupt countries comes out, I am astonished that the US is considered one of the least corrupt. Until, of course, I remember that the list is compiled by Americans.
This was a very expensive case; the reason this case was so expensive was because of defendants and their counsel and the way they litigated this case, Bjurstrom said.
Translation: 'Our legal thuggery cost us a lot of money because our target had the utter gall to fight back and the ruling only gave us a tiny fraction of it back. We want more, make them give it too us.''Actions have consequences' does not an 'exceptional' case make.
But San Diego Comic-Con's request went a step further than simply asking Battaglia to enjoin the Salt Lake convention operators from infringing its trademarks: it asked the judge to bar the Salt Lake convention from using the words comic convention or phonetic equivalents to Comic Con or comic convention.
So essentially they tried to claim ownership over the very concept of comic conventions by saying that no-one should be able to use the purely descriptive term of it.Yeah, at this point I would love to see the USPTO come to it's senses, realize just how bad this trademark is and yank it entirely. It wouldn't help the Salt Lake Comic-con, but it would at least prevent the thugs in the SDCC from going after more targets.
This was blisteringly obvious from the get-go, but it's nice to get confirmation.So what are the legal ramifications of this? The FCC lied about a DDoS attack to downplay the size of the public response, kept records proving that it lied, and then fought FOIA requests for said records.There are numerous court challenges to the Title II repeal. These emails look an awful lot like the sort of thing that will appear with the word "Exhibit" on them.
Kylan Scheele got a great educational bonus thanks to his prank, and it's probably the most important lesson Truman High School ever taught him: this world is full of idiots, and the biggest and most humorless of them all tend to be attracted to positions of authority.
2019: Salt Lake City Graphic Novel Gathering has been sued by Wizards of the Coast for infringing on their Magic: The Gathering trademark.2020: Salt Lake City Superheroes Social has been sued by Joe's Super Hero Sandwiches for infringing on their trademark.2021: Salt Lake City Place for People to Meet to Dress Funny and Pay $45 for Celebrity Signatures has filed for bankruptcy, citing the excessive costs of rebranding every year.
In second place, we've got a comment from Berenerd about FlightSimLabs installing stuff on users' machines and threatening Reddit:
FSLabs new motto: CRASH AND BURN!!!!!
For editor's choice on the funny side, we've got an anonymous reply to that comment adding a little extra color:
There's a hefty discount because the buyer will be stuck with the current administrators, who are clearly a net liability. No asset would behave in the asinine way described here.
That's... not quite all for this week folks. Unfortunately, we also have a bit of sad news to share.A Note From Mike:We recently received a note from a friend and neighbor of one of our most prolific commenters, Roger Strong, informing us of the unfortunate news that he had passed away towards the end of May. One of the things that I've always talked about concerning Techdirt is that what keeps me going and what keeps it interesting is the community that has formed around the site. But it's an odd sort of community. Most of the participants have no interaction with one another outside of the site, and many members of the community have no clue who others really are.I am quite certain that, over the years, other vocal members of the community have passed away, but this is the first time that we've been directly informed of such a passing — and Roger's very kind neighbors told us a bit about what a kind, compassionate and helpful individual Roger was, which was something that I think was clear if you read his comments. He was always a very passionate member of the community, always full of insight and useful perspectives. His friends informed us that being a part of the Techdirt community was an important part of his life, and just reading his comments helped give them another chance to experience Roger's passion and ideas. We will certainly miss Roger's presence and thoughtful comments.
The former aide, James A. Wolfe, 57, was charged with lying repeatedly to investigators about his contacts with three reporters. According to the authorities, Mr. Wolfe made false statements to the F.B.I. about providing two of them with sensitive information related to the committee’s work. He denied to investigators that he ever gave classified material to journalists, the indictment said.[...]Mr. Wolfe’s case led to the first known instance of the Justice Department going after a reporter’s data under President Trump. The seizure was disclosed in a letter to the Times reporter, Ali Watkins, who had been in a three-year relationship with Mr. Wolfe. The seizure suggested that prosecutors under the Trump administration will continue the aggressive tactics employed under President Barack Obama.
The war on unofficial transparency continues -- this time ensnaring a reporter. The indictment [PDF] shows Wolfe was in regular contact with four unnamed reporters and the classified info leaked apparently related to the investigation of Carter Page. (The indictment refers only to MALE-1.).Despite all the dots connected by the Justice Dept. after hoovering up email and phone records of four reporters, none of the charges brought against Wolfe involved mishandling classified info. All three charges listed are for lying to the FBI, not exposing secret info. While the info obtained may have been necessary to prove Wolfe lied to investigators, it does seem like a serious breach first amendment boundaries for nothing but vanilla "lied to the feds" charges. Those charges are mostly there for the government to punish people when it thinks it can't nail down more serious charges.And it is a breach of expected norms, if not a reliable indicator of how many civil liberties the government is willing to doormat to hunt down leakers and whistleblowers.
Under Justice Department regulations, investigators must clear additional hurdles before they can seek business records that could reveal a reporter’s confidential sources, such as phone and email records. In particular, the rules require the government to have “made all reasonable attempts to obtain the information from alternative, non-media sources” before investigators may target a reporter’s information.In addition, the rules generally require the Justice Department to notify reporters first to allow them to negotiate over the scope of their demand for information and potentially challenge it in court. The rules permit the attorney general to make an exception to that practice if he “determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.”
It's not clear all these steps were followed. But there are a whole lot of exceptions available to the FBI to bypass these steps meant to protect the First Amendment. No one seems to have been notified beforehand, and it was far more than call/email metadata that was obtained. The indictment cites the content of encrypted messages -- suggesting yet another area where the FBI's "going dark" rhetoric is overblown.
After the story was published, WOLFE congratulated REPORTER #3, using Signal, stating "Good job!" and "I'm glad you got the scoop." REPORTER #3 wrote back, using Signal,"Thank you. [MALE-l] isn't pleased, but wouldn't deny that the subpoena was served."
Going after reporters' records may become standard operating procedure. The Obama Administration prosecuted more leakers and whistleblowers than all previous presidents combined. This administration appears ready to dwarf Obama's numbers.
Attorney General Jeff Sessions said last year that the Justice Department was pursuing about three times as many leak investigations as were open at the end of the Obama administration.
If the DOJ isn't going to give the First Amendment a wide berth, it's not going to be much friendlier to the rest of them -- like the Fourth. Aggressive pursuit of leakers -- and the attendant collection of reporters' communications/data -- will continue. The DOJ may have guidelines meant to limit investigators from obtaining journalists' records, but they're not much practical use when they can be waived to preserve the "integrity of the investigation."
As you almost certainly know by now, earlier this week Microsoft announced that it was acquiring Github. There's been plenty of hand-wringing about this among some. Microsoft has a pretty long history of bad behavior and so many of the developers who use Github don't have much love or trust of Microsoft, and thus are perhaps reasonably concerned about what will happen. While I'm disappointed that another interesting independent company is being snapped up by a giant, I'm not completely convinced this will be a bad thing in the long run. Microsoft is a fairly different company than it was in the past, and there are reasons to believe it should know enough not to fuck things up. Alternatively, if it does fuck it up, it's really not that hard for a new and innovative company to step into the void (and certainly, others are already jockeying for position to attract disgruntled Github users).For this post, however, I wanted to point to three different reports in reaction to the news -- because I was fascinated by all three of these takes. More specifically, I found two of them thought-provoking, and one laugh-inducing. And it made me realize just how poorly many non-specialized reporters understand the stuff they're reporting on, while how those who have a really deep and implicit understanding of things provide so much greater insight. Let's start with the laugh-inducing one, before moving on to the thought-provoking. The hilariously bad take is found as an editorial in the Guardian, which has already been corrected once for falsely claiming that Github was open source software, rather than that it hosted open source software (among other things). But the really insane paragraph is this one:
GitHub, by contrast, grew out of the free software movement, which had similar global ambitions to Microsoft. The confused ideology behind it, a mixture of Rousseau with Ayn Rand, held both that humans are naturally good and that selfishness works out for the best. Thus, if only coders would write and give away the code they were interested in, the results would solve everyone else's problems. This was also astonishingly successful. The internet now depends on free software.
Confused ideology? Mixture of Rousseau with Ayn Rand? What the fuck are they talking about? And then after noting how free software has been phenomenally successful, it then says this:
But the belief that everyone coding would solve anyone's problems has been shown up as completely ludicrous. If anything, computer literacy has declined over the generations as computers have got easier to use. In the heyday of Microsoft, almost everyone knew some tricks to make a computer do what it should, because almost everyone had to if they wanted to get anything done. But hardly anyone today has the first idea of programming a mobile phone. They just work. That's progress, but not in the direction some idealists expected. Significant open source software is now produced almost entirely by giant commercial companies. It solves their problems but could be said to multiply ours. Huge cultural and political changes are presented as technological inevitabilities. They are not. The value of GitHub lies not in the open-source software it hosts, which anyone could copy, but in the trust reposed in it by users. It is culture, not code, that's worth those billions of dollars.
The whole piece seems premised entirely on a near total misunderstanding of the reasons why people use Github, the ethos of free software, and well... just about everything. Of course it's culture that's important... but it's so odd that this editorial goes out of the way to insult a strawman culture it believes permeates Github, while then claiming that it's what's valuable.So let's move on to the better takes. I'll start with Paul Ford who is, hands down, the absolute best, most thoughtful, insightful and thought-provoking writer about technology issues around. His piece for Bloomberg Businessweek, entitled GitHub is Microsoft's $7.5 Billion Undue Button is truly excellent. It not only does one of the best jobs I've seen in explaining Github for the layman, but does so in the context of explaining why this deal makes sense for Microsoft. Amusingly, I think that Ford is making the same point that the Guardian's editorial was trying to make, but the difference is that Ford actually understands the details, whereas whoever wrote the byline-less Guardian editorial clearly does not.
GitHub represents a big Undo button for Microsoft, too. For many years, Microsoft officially hated open source software. The company was Steve Ballmer turning bright colors, sweating through his shirt, and screaming like a Visigoth. But after many years of ritual humiliation in the realms of search, mapping, and especially mobile, Microsoft apparently accepted that the 1990s were over. In came Chief Executive Officer Satya Nadella, who not only likes poetry and has a kind of Obama-esque air of imperturbable capability, but who also has the luxury of reclining Smaug-like atop the MSFT cash hoard and buying such things as LinkedIn Corp. Microsoft knows it's burned a lot of villages with its hot, hot breath, which leads to veiled apologies in press releases. I'm not asking for your trust, wrote Nat Friedman, the new CEO of GitHub who's an open source leader and Microsoft developer, on a GitHub-hosted web page when the deal was announced, but I'm committed to earning it.
But perhaps most interesting in Ford's piece is that, while it understands why Microsoft is doing what it's doing, it's also a bit wistful of how he'd always kind of hoped that Github would become something more -- something more normal, something that applied to much more of what everyone did. While it doesn't directly say it, it does imply that that dream probably won't happen with Microsoft in control.
I had idle fantasies about what the world of technology would look like if, instead of files, we were all sharing repositories and managing our lives in git: book projects, code projects, side projects, article drafts, everything. It's just so damnedsafe. I come home, work on something, push the changes back to the master repository, and download it when I get to work. If I needed to collaborate with other people, nothing would need to change. I'd just give them access to my repositories (repos, for short). I imagined myself handing git repos to my kids. These are yours now. Iteratively add features to them, as I taught you.For years, I wondered if GitHub would be able to pull that offtake the weirdness of git and normalize it for the masses, help make a post-file world. Ultimately, though, it was a service made by developers to meet the needs of other developers. Can't fault them for that. They took something very weird and made it more usable.
The final thought provoking piece comes from Ben Thompson at Stratechery, who sees the clear business rationale of Microsoft's decision. Microsoft built its entire business as a platform for developers (who it sometimes treated terribly...). But as we've moved past a desktop world and into a cloud world, Microsoft has much less pull on developers. Github brings it tons and tons of developers.
Go back to Windows: Microsoft had to do very little to convince developers to build on the platform. Indeed, even at the height of Microsoft's antitrust troubles, developers continued to favor the platform by an overwhelming margin, for an obvious reason: that was where all the users were. In other words, for Windows, developers were cheap.That is no longer the case today: Windows remains an important platform in the enterprise and for gaming (although Steam, much to Microsoft's chagrin, takes a good amount of the platform profit there), but the company has no platform presence in mobile, and is in second place in the cloud. Moreover, that second place is largely predicated on shepherding existing corporate customers to cloud computing; it is not clear why any new company or developer would choose Microsoft.This is the context for thinking about the acquisition of GitHub: lacking a platform with sufficient users to attract developers, Microsoft has to acquire developers directly through superior tooling and now, with GitHub, a superior cloud offering with a meaningful amount of network effects. The problem is that acquiring developers in this way, without the leverage of users, is extraordinarily expensive; it is very hard to imagine GitHub ever generating the sort of revenue that justifies this purchase price.
Thompson's piece (among many other good insights) suggests why developers might not need to fear Microsoft's ownership, because of all the potential acquirers, Microsoft probably has the least incentive to ruin Github:
This, by the way, is precisely why Microsoft is the best possible acquirer for GitHub, a company that, having raised $350 million in venture capital, was possibly not going to make it as an independent entity. Any company with a platform with a meaningful amount of users would find it very hard to resist the temptation to use GitHub as leverage; on the other side of the spectrum, purely enterprise-focused companies like IBM or Oracle would be tempted to wring every possible bit of profit out of the company.What Microsoft wants is much fuzzier: it wants to be developers' friend, in large part because it has no other option. In the long run, particularly as Windows continues to fade, the company will be ever more invested in a world with no gatekeepers, where developer tools and clouds win by being better on the merits, not by being able to leverage users.
My own take is somewhere between all of these. As soon as I heard the rumor, I started thinking back to the famed Steve Ballmer chant of "Developers, Developers, Developers!"Microsoft has always needed developers, but in the past it got them by being the center of gravity of the tech universe. A huge percentage of developers were drawn to Microsoft because they had to develop for Microsoft's platform. That allowed Microsoft to get away with a bunch of shady practices that certainly created a bunch of trust issues (Facebook might want to take note of this, by the way). Nowadays, in the cloud world, Microsoft doesn't have that kind of leverage. It's still a massive player, but not one that sucks in everything around it. And, it does have new leadership that seems to understand the different world in which Microsoft operates. So it will be interesting to see where it goes.But, as someone who believes in the value of reinvention and innovation among the tech industry, it's not necessarily great to see successful mid-tier companies just gobbled up by giants. It happens -- and perhaps it clears the field for something fresh and new. Perhaps it even clears the field for that utopic git-driven world that Ford envisions. But, in the present-tense, it's at least a bit deflating to think that a very different, and very powerful, approach to the way people collaborate and code... ends up in Microsoft's universe.And, as a final note on these three pieces: this is why we should seek out and promote people who actually understand technology and business in understanding what is happening in the technology world. The Guardian piece is laughable, because it appears to be written by someone with such a surface-level understanding of open source or free software that it comes off as utter nonsense. But the pieces by Ford and Thompson actually help add to our understanding of the news, while providing insightful takes on it. The Guardian (and others) should learn from that.
It's hardly a state secret that China is instituting the most complete surveillance and censorship system ever attempted by a society (so far), and on an unprecedented scale. Techdirt has been tracking that sad saga over the years, mostly reporting on how censorship is being implemented. Less information has been available about what exactly the Chinese government doesn't want people to know about/discuss. Aside from the obvious issues -- repression of Tibetans and Uyghurs, Tiananmen Square protests, environmental problems, government corruption etc. -- just what is Beijing afraid of? A document obtained by the The Globe and Mail may shed some light on this question, although it's still not entirely clear who wrote it:
It began circulating early this year, and is believed to have been issued by the powerful Cyberspace Administration of China, China's central Internet authority, which did not respond to requests for comment.It's also possible that the document, which outlines 10 basic categories of banned content, was written by a government-affiliated trade association, a censorship expert said.
In any case, experts seem to accept that it represents the Chinese government's position quite well, which makes the insights it gives into official thinking extremely valuable. Forbidden activities include many that come as no surprise, such as: insulting leaders, criticizing official policies, spreading information about "made-up" accidents, epidemics, police incidents, and issues related to the economy. Celebrities are protected to a certain extent, with a ban on over-the-top stories about their sex scandals or luxurious lifestyles. Talking about violence, superstitions or religions are also out, as are the following:
Not only is pornography banned, but so is all obscenity, a category that includes "using a bed or sofa as a prop or background," appearing shirtless, wearing tattoos or dancing in a way "that has flirtatious and vulgar elements." Also forbidden is the spreading of harmful information, a category that includes cursing, smoking and drinking, gambling or "vulgar use of a microphone controller (or any mimicking of it)."
But alongside much that is outright wacky -- what on earth does "vulgar use of a microphone controller" even mean? -- the article quotes Yaxue Cao, the founder and editor of ChinaChange.org, who points out a more serious underlying strategy discernible here:
"It targets political dissent of course, but any activities that might cause a large number of people to coalesce, whether through popular entertainment such as Duanzi (jokes) and cartoons, or through direct sales network," she said, in an e-mail. "It also aims at content that might give people ideas of resistance and how-to knowledge. I go through each category, this is the theme I see: a heightened sense of regime insecurity."
It's a great point that explains much of what the Chinese government has done over the last few years. What the authorities fear above all else is not so much any of the topics mentioned above in themselves, but the thought that they might help people to band together, and even formulate an idea that is truly frightening for Beijing: that they could start to resist.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
While the copyright industries love to frame so-called "pirates" as nefarious freeloaders who simply want to consume content for free, it's been an open secret for some time now that these freeloaders are often outspending non-infringers on entertainment across the spectrum. Despite this clear indication that piracy is largely a problem of under-served customers, industry groups like the RIAA still prefer to play pretend with these obvious business metrics. The end result of this is that industry and anti-piracy groups essentially advocate for the attack of their constituents' best customers, which ought to be about as insane a thing as one can imagine.But perhaps the tide is turning. An indication of that would be MUSO, the piracy-tracking group, essentially telling copyright industries to get their shit together and finally treat pirates like the great customers they tend to be. The report is based on a MUSO survey showing that 60% of UK citizens admit to engaging in copyright infringement, except the overwhelming majority of those "pirates" first tried, and failed, to get that content legally.
Of all the people surveyed the vast majority, 60 percent, admitted that they illegally streamed or downloaded music, film or TV-shows in the past. This could have been yesterday or even two years ago. Interestingly, the same pirates often try legal sources first. In fact, 83 percent say they usually try to find what they are looking for through official channels before trying anything else. This suggests that most pirates are also legal consumers.“The entertainment industry tends to envisage piracy audiences as a criminal element, and writes them off as money lost – but they are wrong to do so,” says Paul Briley, CCO of MUSO, commenting on the findings. “The reality is that the majority of people who have gone through the effort of finding and accessing such unlicensed content are, first and foremost, fans – fans who are more often than not trying to get content legally if they can.”
First, a slow golf clap for MUSO finally getting what we've been saying for years. But a more sincere applause should be directed at MUSO, a piracy tracking outfit, turning the tables on the copyright holders that often use its reports to decry modernity, holding them accountable for what has always been a business model issue. Based on the same survey, the majority of pirates gave up on legit sourcing for content when they either could not find the content they wanted legally, or found that it was "siloed" in a service to which they do not subscribe. Barely a third indicated that cost or money had anything to do with it.Sort of blows the whole "pirates just want stuff for free" thing out of the water, doesn't it? Not to mention that these "pirates", who supposedly want everything for free, spend a shit-ton of money on non-free entertainment.
MUSO’s survey reveals that 91% of all pirates already have a streaming subscription, such as Netflix, Amazon Prime, Spotify or Apple Music. That’s more than their non-pirating counterparts, of which less than 80% subscribe to one of these services.The problem is that people sometimes need over a dozen separate subscriptions to access all the content they want. There’s no single service that offers everything in one place. This is one of the main reasons why piracy is still very relevant.
If the copyright industries wanted to change the piracy landscape in an instant, they need only slay the monster that is delivery fragmentation. People are perfectly willing to pay for content, but the monetary and mental costs of incorporating five different streaming services, and then having to search across all of those services for a particular piece of content, falls prey to the ease of piracy. And that ease is exactly what the content industries should either be selling themselves, or partnering with others to sell, because that convenience is the product.If nothing else, the mantra of piracy being about freeloaders should be dead.
Getting roped in by your public Facebook posts isn't a Fourth Amendment violation -- not even if the viewing "public" contains undercover cops. The Delaware Supreme Court [PDF] got to wrestle with an interesting question, but the public nature of conversations prevents the Fourth Amendment from being much of an issue. [h/t Eric Goldman]
Here, the defendant-appellant, Terrance Everett (“Everett”), accepted the friend request from a detective who was using a fictitious profile. The detective then used information gained from such monitoring to obtain a search warrant for Everett’s house, where officers discovered evidence that prosecutors subsequently used to convict him.
Everett posted pictures of cash and weapons. As a convicted felon, he certainly wasn't supposed to be in possession of the latter. There's a discussion of privacy settings in the court's decision, but it only shows nothing conclusive was determined by the lower court. Apparently, Everett did set his account to "Friends-only" at some point, but that most likely did not occur until after the photos used to obtain a search warrant had already been viewed.Ultimately, the court decides the privacy settings don't really matter -- at least not as far as Everett extended them. It would have still allowed the detective to see the photos Everett posted, given that the law enforcement officer was already a Facebook friend.Attempting to claim his privacy was violated by the three-year subterfuge, Everett's challenge partially hinged on a key omission from the detective's warrant affidavit. The detective never informed the judge he had spent three years pretending to be Everett's friend to gather probable cause for a search. If nothing else, this seems like a waste of law enforcement resources, given the only charge Everett was convicted for was firearms possession. Then again, surveillance through a Facebook account is a largely passive enterprise.The lower court found the omission did not affect the warrant's validity and the state Supreme Court agrees. Then it moves on to address the larger issue: is a fake friend a privacy violation?
We reject Everett’s contentions because Everett did not have a reasonable expectation that the Facebook posts that he voluntarily shared with Detective Landis’s fake profile and other “friends” would not be disclosed. We observe that Detective Landis did not request or access the Photo directly from Facebook, the third-party service provider— a scenario that we need not address here. Rather, Everett made the Photo accessible to his “friends” and, by doing so, he assumed the risk that one of them might be a government officer or share his information with law enforcement.
This is true across all communications platforms, including personal conversations and snail mail. The expectation of privacy the sender might have can be "violated" at any time by the recipient of the communications. Even if the recipient is a cop pretending to be a Facebook friend, the privacy of communications is only as solid as the other participant.The court also notes this isn't even comparable to wiretapping. The detective did not intercept private communications or otherwise place himself between Everett and message recipients. Everything gathered to support the warrant was visible to Everett's Facebook friends. Any one of them could have turned the photo over to police without violating Everett's privacy. The detective's passive monitoring of a Facebook account doesn't change the equation much.
One cannot reasonably believe that such “false friends” will not disclose incriminating statements or information to law enforcement—and acts under the risk that one such person might actually be an undercover government agent. And thus, one does not have a reasonable expectation of privacy in incriminating information shared with them because that is not an expectation that the United States Supreme Court has said that society is prepared to recognize as reasonable.[...]If one allows others to have access to his or her information that contains evidence of criminal wrongdoing, then that person assumes the risk that they might expose that information to law enforcement—or they might be undercover officers themselves. As the United States Supreme Court has put it, “[t]he risk of being . . . betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society” and “is the kind of risk we necessarily assume whenever we speak.”
That's how it works. Communications are public, to a certain extent. The government can't access certain conversations you have with others without a warrant, but nothing says it can't pretend to be another person to be invited into incriminating conversations. Posting photos to Facebook isn't a private act, even if the settings only allow "friends" to view them. The subterfuge deployed makes it seem like more of a privacy violation than it actually is. What this should be is a cautionary tale, rather than an indictment of the Fourth Amendment's limitations. If someone doesn't want evidence of criminal activity used against them, they should probably keep that information to themselves, rather than post it on social media sites.
The opening of this recent decision [PDF] by the Maryland Court of Special Appeals is eye catching. It quotes Breaking Bad prequel, Better Call Saul. More specifically, it quotes Jimmy McGill, who gradually morphs into the more-huckster-than-lawyer Saul Goodman over the course of the series. The case has to do with a murder suspect's request for a lawyer, one that was ignored by law enforcement. The quote sets the stage, letting readers know anyone accused of anything by law enforcement is better off exercising their right to be represented. (h/t Keith Lee)
Craig Kettleman: I just think I'd look guilty if I hired a lawyer.James McGill: No, actually it's getting arrested that makes people look guilty, even the innocent ones, and innocent people get arrested everyday. And they find themselves in a little room with a detective who acts like he's their best friend. “Talk to me,” he says, “Help me clear this thing up. You don’t need a lawyer, only guilty people need lawyers” and BOOM! Hey, that’s when it all goes south. That’s when you want someone in your corner. Someone who will fight tooth and nail.
Mynor Vargas-Salguero was arrested and convicted of second-degree murder, robbery, and theft. The lower court sided with the government, finding his demands for a lawyer "ambiguous." The Appeals Court disagrees, finding it clear enough, especially when the recording of the interrogation is compared to law enforcement's transcript of the recording's contents.That's where the real ambiguity lies. Or rather, there doesn't seem to be much ambiguous about law enforcement's attempt to retcon the post-arrest questioning to make Salguero's request for a lawyer vanish into the ether.There was a language barrier but not an insurmountable one. Salguero's first language is Spanish but he knows some English. Two of the detectives present spoke Spanish. One spoke only English. Occasionally, translation was needed for the single English-only speaker in the room. But, for the most part, the interrogation flowed. The detectives told Salguero he wasn't being charged with anything, despite hauling him in with an arrest warrant. Salguero made it clear he wasn't interested in talking if he didn't get a lawyer.The first demand came early in the interrogation when the detectives tried to determine Salguero's daily routine.
[DETECTIVE DELEON]: Okay. Tha—that’s why I asked you.A: At 5:30 my ride wakes me up, there at the house where I live—lived right now with my sister, that I just moved in. [DETECTIVE DELEON]: Right.A: And I go to work. That’s all I have to say to you. And if you accuse me of something I better want an attorney. (underlining added).
The detectives apparently understood this as a request for a lawyer. But they forged ahead with the interrogation after a brief pause. One of them acknowledged this during the interrogation, but that was conveniently left out of the transcript prepared for the court.
A: Right. Ask me whatever you want.[DETECTIVE BELLINO]:Okay. Maybe…A: People confuse me and—this has to be this way, man.[DETECTIVE BELLINO]: Hold up, just a moment ago you said you wanted a lawyer but you’re willing to talk to us right now, right?
The footnote exposes the alteration by law enforcement.
The bolded text represents the words Mr. Vargas-Salguero spoke during the interrogation—as the circuit court and we can see on the video—that the police left out of the transcript they prepared and submitted to the court.[...]The record does not reveal, nor do the police explain, why their transcript deviates from the interrogation. The discrepancies were not identified to the circuit court, and the court made no findings about them; the court reviewed both the transcript and the video, and thus could consider the full interrogation, but didn’t address the differences. We cannot help but notice, however, that the officers’ transcript omitted words Mr. Vargas-Salguero in fact said at two critical points in the interrogation, and that the omitted language bears directly on whether the officers understood that Mr. Vargas-Salguero invoked his rights to counsel and to remain silent.
Here is the second critical point where the transcript deviated from the video:
A: In what moment did – did – I don’t want to say anything else now. Because I have nothing else to say. I have nothing else to tell you. Me, killing a poor man. (unintelligible.)[DETECTIVE BELLINO]: Go ahead here.[DETECTIVE DELEON]: Here.A: There, what? Go ahead, what? What you got in there? What do you say? I don’t see anything there. Nothing.[DETECTIVE BELLINO]: Look are you willing to talk to us? I thought you said you didn’t want to talk. Do you want to talk to me? Are you willing to talk to me?A: Yeah.
The cop version:
The police-prepared transcript says only “I understand you want to talk.”
The transcript also fails to show what actually occurred during this moment. The Spanish-speaking detectives chose not to translate this assertion of Salguero's right to remain silent for Detective Bellino. Instead, the Detective DeLeon decided to stand back and let Bellino keep hammering away at Salguero in the suspect's non-native language.The government argued Salguero's statement was ambiguous. The court points out it wasn't -- not when the context is considered.
Now back to Mr. Vargas-Salguero. The condition “if you accuse me of something” in the first half of his statement had indisputably been met, at least in the way that a normal person—and a reasonable police officer—would consider himself “accused of something.” At the time he made these statements, he had been arrested at his home in the middle of the night pursuant to an arrest warrant, issued by a court, that included serious crimes, and was being questioned in an interrogation room by three detectives. He mentioned (and lamented) several times that he felt like he could be going to jail for a crime he didn’t commit. It doesn’t matter for these purposes whether the charging documents had triggered his Sixth Amendment rights (we’ll deal with those below), or that the detectives claimed that he wasn’t being accused of anything. Maybe he “sought to couch [his] request [for an attorney] in polite or (more likely, given the context) deferential terms,” Ballard, 420 Md. at 493, but he was there because he had been, and was being, accused of serious crimes.With that condition met, Mr. Vargas-Salguero’s statement that he’d “better want an attorney,” the officers’ translated understanding of his statement in Spanish, sufficiently invoked his desire for an attorney. Other cases have held “I think I want an attorney” or “I’d rather have an attorney” was sufficient. See, e.g., Harris, 305 S.W.3d at 489 (suspect invoked right to counsel by stating “I’d rather appoint a lawyer”); McDaniel, 506 S.E.2d at 23 (suspect invoked right to counsel by stating “I think I would rather have an attorney here to speak for me”). This statement was at least as strong as those.
Furthermore, the detectives' own actions indicate they at least thought Salguero had exercised his right to demand an attorney. They stopped the interview and stepped out of the room to discuss his "if you accuse me of something…" statement before apparently deciding they might be able to get away with ignoring his request. Detective DeLeon's statement -- conveniently excised from the official transcript -- further indicates he understood Salguero's statement to be a request for a lawyer. ("Hold up, just a moment ago you said you wanted a lawyer…")The same goes for Salguero's right to remain silent. This was invoked when he said he had nothing more to say and pushed back from the table. This statement -- made in Spanish -- went conveniently untranslated and the Spanish-speaking detective too pushed back from the table to let the single non-Spanish person in the room override the invocation of a Fifth Amendment right.The Appeals Court reverses the lower court's decision and sends it back, pointing out it clearly erred by allowing the government to submit an illegally-obtained confession as evidence. No evidence is as harmful to a criminal defendant as a confession, so there's no chance the lower court can claim the two violations of Salguero's rights were "harmless."The examination of the transcript and the recording by the Appeals Court clearly indicates why all in-custody interrogations should be recorded. Relying only on a version of events written by those with a stake in the outcome results in the sort of malfeasance exposed here. The court won't go as far as to accuse law enforcement of lying, but it does make it clear it will trust videotape more than it will trust cops.
Chicago's gun violence rate -- now in the midst of a long period of decline, never mind what the Attorney General and President say in public statements/tweet -- has been a concern for a few years now. The DOJ, before being chased away from policing the police by Jeff Sessions, noted the PD had destroyed its relationship with city residents with unconstitutional policing and an antagonistic attitude. A couple of high-profile shootings of Chicago residents by police officers did nothing to help.Chicago is the poster child for violent crime, despite its rate of crime being lower than under-the-radar cities like Ft. Worth, Memphis, and Houston. This had led to all sorts of solutions being suggested, including the return of unconstitutional policing (Attorney General), sending in the troops (President Trump), and a sharp uptick in surveillance (the Chicago PD).The New York Times covers the city's surveillance expansion under the headline "Can 30,000 Cameras Help Solve Chicago's Crime Problem?" The answer is unclear, despite the many glowing reviews of the city's camera network delivered by law enforcement officers and officials. The subhed -- "But what does it mean for residents' privacy?" -- is barely discussed.The network Chicago is deploying involves thousands of hi-def cameras, automatic license plate readers, mugshot databases, and predictive policing software. That the system went online roughly about the time homicide numbers began to decline has prompted praise -- perhaps unearned -- for the system's ability to rid the city of its violent crime problem.
The department tested the use of technology in two of its most violent areas in early 2017. When crime began to fall, the department ultimately set aside space in 13 of its 22 police stations for the surveillance centers, which tap into the city’s approximately 30,000 government-operated closed-circuit cameras.Inside, civilian crime analysts from the University of Chicago Crime Lab — self-described “nerds” who are often learning data science on the fly — and uniformed officers work side by side at computer terminals, scrutinizing crime data as they search for trends.Much of the technology is similar to equipment used by dozens of police departments around the nation: sensors to detect the location of gunshots, software designed to predict the time and location of crimes and license plate readers that photograph thousands of plates per minute.
Cops like the system. It provides a wealth of information, starting with location of reported gunshots and working from there to bring up arrest records of people in the area and vehicle locations of suspects. Fun stuff for cops. Not so much for the thousands of innocent people who live in heavily-surveilled areas. Predictive policing software's track record isn't much better than facial recognition AI. Both have a tendency to generate false positives, but predictive policing allows cops to conjure reasonable suspicion out of ambient temperature, moon stages, and someone's proximity to known criminals. You may think I'm being facetious, but here's the receipt.
The civilian analysts spend much of their time feeding a range of information into software called HunchLab, which considers a number of variables — from gang tensions and gunshot reports to the number of parolees living in an area — to forecast crime by giving probability scores, much like a meteorological report.HunchLab also examines less obvious data points, like the location of liquor stores and schools, an area’s proximity to local expressways, and even weather conditions and phases of the moon (there is more crime during full moons; no one knows why).
In reality, it seems to do little more than shore up preconceived notions. This is what may have gotten the city into the mess in the first place. And the DOJ's inability to move forward with investigations of police forces means the PD may never have to answer fully for its unconstitutional behavior. What residents are getting instead of better police officers and policies is a massive surveillance network -- one deployed with almost zero public comment or oversight. Some transparency has been put in place, but only after the system has been fully deployed, and it largely consists of invitations to community leaders to tour local "strategic centers" to look at the people looking at screens showing images of their friends and neighbors.As local activist Kofi Ademola puts it, residents weren't asked about the new system. They were simply told this was the way forward.
“There was not a conversation like, ‘Do you want this in your community?’ ” he said. “Instead, the Chicago police say, ‘This is in your community and it is going to cut crime,’ and unfortunately, people don’t question that. It’s now been normalized for these communities to be under constant surveillance, which contributes to the criminalization of people. It is problematic.”
The situation is unlikely to change. It won't be scaled back, even if current crime rate declines plateau. To its proponents, it's the only explanation for the decline in violence. Efforts have been made to overhaul stop-and-frisk policies, which may have helped community relations, but there's no weight backing it up or codifying the changes. The DOJ isn't going to step in and demand permanent changes and city officials have taken heat from law enforcement reps for the minimal corrective efforts they have managed to put in place.Sure, the system may do some good, but at what societal cost? Will certain residents just assume their lives will be documented and stored in law enforcement databases so long as they live or work in certain neighborhoods? Will guilt by association increase the number of interactions with law enforcement just because they have the misfortune to live in gang territory or a few houses away from recently-released felons? Those are questions that no one can answer with anything but "yes" at this point. The police feel this is an acceptable tradeoff: lower crime for 24-hour surveillance. Those being surveilled have been given no say in the matter.
Reason number a billion why quotas for law enforcement are a bad idea: they encourage the worst behavior. The Victoria (AUS) Police recently performed an internal investigation into breathalyzer tests deployed 17.7 million times over the last 5-½ years. Prompted by an "anomaly" in the data, investigators uncovered something horrific and ridiculous all at the same time: Victorian cops blow… thousands of times a year.
Victorian police faked more than a quarter of a million roadside breath tests in what appears to be a deliberate ruse to dupe the system.An internal investigation has found 258,000 alcohol breath tests were falsified over 5½ years, The Age has learned.
If there's an upside (and is there?), it's that it did not result in false arrests. These weren't faked tests used to prosecute people for driving under the influence. These were tests "performed" to meet quotas given to officers by supervisors. Never underestimate the reluctance of many workforce members to, you know, actually perform work.
Police believe officers may have been blowing into the breathalysers themselves, most likely due to laziness and the need to meet targets.
The anomaly first spotted by the Transport Accident Commission was the lack of a credible gap between test results. In most cases, several minutes at the very least would elapse between tests of motorists. Paperwork needs to be filled out, drivers need to be conversed with and/or cited, etc. That gap wasn't present in hundreds of thousands of tests which were performed in batches with no time gap between them. The only explanation? Police snow blow jobs.
[T]he faked tests were occurring one after the other.This suggests two things: an officer is either placing a finger over the straw entry hole or they were blowing into the straw themselves.
Upside: faked negative tests don't result in false arrests or prosecutions. Downside: everything else. The Victorian Police have proven a quota system doesn't work. The officers have proven they can't be trusted to do their jobs. The latter is at least as significant as the quota issue. If officers are too lazy to hit quotas on breathalyzer tests, what other corners are they cutting while chasing numbers -- whether it's traffic citations or closing investigations?The investigation does prove at least one thing: officers are abusing the trust placed in them, both by their superiors and the general public. The only factor that appeared to deter test fakery was direct oversight.
It was not a practice found at supervised drug and alcohol bus testing sites.
What will happen to all these lazy officers who abused the trust placed in them? Probably not much of anything. Despite this having been made public, accompanied by statements from police officials confirming the accuracy of the report, government officials further up the ladder -- the oversight -- appears to be withholding judgment until they are "comprehensively briefed." If heads roll, it will hopefully start up top and continue through the rank-and-file.But heads won't start rolling. The culling will probably target the inanimate objects first. The quota system is effectively dead. It will be the scapegoat sacrificed so lazy cops can keep their jobs. It definitely should go, precisely because it encourages this sort of behavior. But it shouldn't be the only thing on the chopping block as the Victorian police seek to bring an end to this unflattering news cycle. Laziness is ingrained behavior and faking breath tests may prove to be the tip of the iceberg. Everything still underwater potentially contains serious civil liberties violations. The sooner the Victorian Police digs into officers' behavior in all areas of their jobs, the sooner it can began regaining the public's trust.
Perhaps you thought that the legal drama between the famous San Diego Comic-Con and the Salt Lake Comic Con was over. Our ongoing coverage of this trademark dispute stemming from SDCC somehow having a valid trademark on "comic-con", a shortened descriptor phrase for a comic convention, largely concluded when SDCC "won" in court, being awarded $20,000 after initially asking for $12 million in damages. With the focus now turning to the roughly gazillion other comic conventions that exist using the "comic-con" phrase in their names and marketing materials, this particular dispute seemed to have come to a close.But not so much, actually. In post-trial motions, SDCC petitioned Judge Battaglia to consider the case "exceptional" so that SDCC can recover attorney's fees from SLCC. The arguement for SDCC appears to mostly be that they spent a shit-ton of money on attorneys for the case.
U.S. District Judge Anthony Battaglia heard a host of posttrial motions Thursday, including San Diego Comic-Con’s request for over $4.5 million in attorney fees which have already been paid in full. San Diego Comic-Con attorney Callie Bjurstrom with Pillsbury Law told Battaglia Thursday he should find the case is “exceptional” so that attorney fees and costs can be awarded.“This was a very expensive case; the reason this case was so expensive was because of defendants and their counsel and the way they litigated this case,” Bjurstrom said.
It will be interesting to see how Judge Battaglia rules on the assertion that SLCC's defense of itself warrants its paying SDCC's attorney's fees. What exactly was SLCC supposed to do, not try to defend itself in the best way possible? One also wonders if SDCC would be petitioning for attorney's fees had the jury found that SLCC's infringement was not willful, resulting in the paltry $20k award. Perhaps, perhaps not. What this sure looks like is the SDCC realizing that this "win" came at the cost of a hilariously large amount of money and it is attempting to mitigate that loss.SDCC also petitioned the court to bar SLCC from using its trademarks. That sort of thing would be par for the course except for two things. First, again, this trademark is ridiculous. It's purely descriptive. Second, hammering home that fact, SDCC doesn't want SLCC to even be able to properly describe the type of event it is.
But San Diego Comic-Con’s request went a step further than simply asking Battaglia to enjoin the Salt Lake convention operators from infringing its trademarks: it asked the judge to bar the Salt Lake convention from using the words “comic convention” or phonetic equivalents to “Comic Con” or “comic convention.”
That request should lay plain how dumb this all is. If a comic convention cannot refer to itself as such because that is too close to the trademark "comic-con", then it should be plain as day that "comic-con" is purely descriptive and, therefore, invalid as a trademark. I wouldn't be surprised to see this petition to the court turn up at the USPTO in a bid to cancel SDCC's trademark entirely. That's certainly what I would be doing if I were heading up any of the hundreds of comic cons out there.
Government agencies, for the most part, treat public records requesters as weeds in the garden of governance: a pest that can never be fully eradicated, but rather tolerated with as much annoyance as possible. Whatever can't be made to disappear with hefty fee demands or months of stonewalling will be given as little attention and compliance as possible. This attitude has turned FOIA requesters into frequent litigators seeking to hold one branch of the government accountable by using another.When Cheryl Brantley, a member of activist group A Better Way for BPA, requested records from the Bonneville Power Administration (run by the Department of Energy), she filled out the agency's online FOIA form and waited. And waited. And waited some more before finally suing.BPA responded by declaring A Better Way had no standing to file a lawsuit. It decided to get hypertechnical about Brantley's FOIA submission, claiming no one but Brantley herself should be allowed to sue.The district court granted the BPA's motion to dismiss for lack of standing. A Better Way appealed this decision, placing it before the Ninth Circuit Court of Appeals. The court is completely unimpressed with the BPA's attempt to turn a meaningless technicality into a motion to dismiss. From the decision's [PDF] summary: [h/t Brad Heath]
The government challenged the group’s standing and the district court dismissed the suit, saying that the submitted form did not adequately identify the organization as the requester. We disagree. FOIA forms should not be a “gotcha” proposition requiring a lexicographer to discern who made the request.
Brantley's request identified two parties as requesters: herself and A Better Way.
Further down in the form, she clicked a box designating this as a request by an "individual" for personal use. Later comments on the same form indicated Brantley was requesting this on behalf of A Better Way, referring to "technical advisers" who would help disseminate info obtained "to our members."Even if the BPA wanted to get technical about Brantley's choice of "individual" on the online form, its own communications with Brantley made it clear the agency felt it was dealing with a group, rather than Brantley herself.
[O]n February 18, 2015, the agency sent a letter addressed to “Cheryl Brantley[,] A Better Way for BPA,” stating that BPA had been in touch with [David] Bricklin [A Better Way's attorney], granting a fee waiver, noting the complexity of the request, and estimating completion by September 30, 2015. On September 28, 2015, BPA sent another letter, addressed the same way, advising of its need to submit certain records to third-party entities for review and thus “extending the target date for BPA’s response to your request to March 31, 2016.”The agency continued to communicate with A Better Way’s counsel. Significantly, on November 13, 2015, BPA sent an email to Bricklin with the subject line: “BPA-2015- 00597-F-Brantley (A Better Way for BPA) - DEIS for I-5 Corridor Reinforcement Project - 5 U.S.C. § 552(b)(4) determination letters.” Two days later, BPA sent another email to Bricklin with a similar subject line: “BPA-2015- 00597-F-Brantley (A Better Way for BPA) - DEIS for I-5 Corridor Reinforcement Project - communication with the requester’s counsel.”
The appeals court makes short work of BPA's attempt to dodge litigation predicated on its own failure to produce responsive documents.
Viewing the form as a whole, it is clear that the request was made on behalf of A Better Way, that the request was not for commercial purposes, that there was an obvious public interest related to BPA’s I-5 Corridor Reinforcement Project, and that the requester had “members,” hardly a characteristic of an individual requester. Any confusion in the electronic form was of BPA’s own making and could easily be fixed by including a place to check that the request is made “on behalf of” an organization or by adding “public interest organization” or “other” options under Type of Requester.
The court goes on to note that BPA certainly knew the group requesting documents and acknowledged -- through multiple communications with A Better Way's counsel -- that A Better Way was the ultimate recipient of the sought documents. Pretending otherwise is just conveniently disingenuous.
To the extent ambiguity exists with how Brantley filled out the form—and we do not think that any does—the follow-on correspondence between BPA and the requester affirms that A Better Way was the requester and that BPA treated A Better Way as the requester. For example, BPA addressed letters to “Cheryl Brantley[,] A Better Way for BPA,” twice placed “A Better Way” in the subject line of emails concerning the request, and regularly communicated with the organization’s lawyer. This treatment was unsurprising, as A Better Way and BPA were hardly strangers. During a six-month period from December 2009 to June 2010, for instance, the organization submitted ten FOIA requests to the agency. BPA cannot reverse course now and convince us that the organization with whom it was regularly corresponding and which it acknowledged as the requester should be out of court.
Finally, the court says common sense must be used when dealing with FOIA requesters, who are usually citizens untrained in the art of obfuscatory bureaucracy. The court points out BPA, on multiple occasions, made it clear through communications with the group's counsel that it knew it was dealing with A Better Way, not Cheryl Brantley acting of her own accord. The case is sent back to the lower court to allow A Better Way to continue suing BPA for records it still hasn't turned over. And hopefully the BPA will act in good faith in the future when being sued for unresponsiveness. But probably not. After all, it's not the agency's money being wasted. That comes from US taxpayers -- an apparently bottomless source of revenue.
As in any country, the limits of free speech are determined by the ruling party. While we have a Constitution that (mostly) holds our representatives at bay, many countries only pay lip service to rights they have previously declared inviolable. Egypt's government has long suppressed dissent and strangled communications. It deployed an internet kill switch in 2011, cutting off access to millions of Egyptians. A regime change followed and the former president was fined for nuking the country's internet access.
Despite this power shift, nothing much changed. The current government cares no more for dissent and criticism than the previous one. Egyptian journalist Wael Abbas, who exposed police brutality and government torture, has provided his fellow residents an invaluable service: an unfiltered, ground-level view of government atrocities. His work even resulted in the rare conviction of Cairo police officers.
But he's fought censorship at home -- as well as abroad -- every step of the way. YouTube, Facebook, and Twitter have all suspended his accounts, supposedly for policy violations. Most of these were reversed after US activists intervened on his behalf, but his accounts are always just another perceived violation away from being shut down permanently.
And that's just on the US side. Egypt's government has tried to silence him on the homefront, convicting him in 2010 for "providing telecommunications service to the public without permission of the authorities." That was under the previous regime -- the one that deployed an internet kill switch to disrupt the communications of its many critics and opponents.
Abbas was taken at dawn on May 23 by police to an undisclosed location, according to news reports which quote his lawyer, Gamal Eid. The Arabic Network for Human Rights Information (ANHRI) reported that Abbas was not shown a warrant or given a reason for his arrest. He appeared in front of state security yesterday and was questioned and ordered by prosecutors to be held for fifteen days. According to the Association for Freedom of Thought and Expression (AFTE), Abbas was charged with “involvement in a terrorist group”, “spreading false news” and “misuse of social networks.”
The details of the charges really don't matter. Much like "resisting arrest," the charges are catch-all crimes meant to show the charged the importance of kowtowing to public displays of power. Unfortunately, the prosecution -- if it evens needs the help -- will be using actions taken by US social media companies as evidence against Abbas.
It seems clear that the messaging around Abbas' detention is that his arrest was connected to his posts on Facebook and Twitter, and that the prosecution and media are using his suspension by these services as part of the evidence for his guilt.
This is more than merely unfortunate. US social media platforms have played a part in anti-government uprisings around the world. In some cases, platforms have exercised caution when dealing with accounts caught in the middle of government violence, taking extra steps to protect the humans behind pseudonymous accounts. But Abbas has received none of these protections and his documentation of government brutality has resulted in multiple suspensions. The self-proclaimed guardians of worldwide free speech are providing evidence to government censors with their sometimes careless moderation efforts. When you treat certain content as offensive and treat it with blanket moderation policies, you strip the "offensive" content of its context. In cases like this, blanket moderation could mean the difference between freedom and a lengthy prison sentence. If social media platforms want to continue to operate in countries where governments are openly oppressive, they need to do a much better job protecting those who expose government abuse.
The last time we discussed Illinois' Biometric Information Pirvacy Act, a 2008 law that gives citizens in the state rights governing how companies collect and protect their biometric data, it was when a brother/sister pair attempted to use the law to pull cash from Take-Two Interactive over its face-scanning app for the NBA2K series. In that case, the court ruled that the two could not claim to have suffered any actual harm as a result of using their avatars, with their real faces attached, in the game's online play. One of the chief aspects of the BIPA law is that users of a service must not find their biometric data being used in a way that they had not intended. In this case, online play with these avatars was indeed the stated purpose of uploading their faces and engaging in online play to begin with.But now the law has found itself in the news again, with a federal court ruling that millions of Facebook users can proceed under a class action with claims that Facebook's face-tagging database violates BIPA. Perhaps importantly, Facebook's recent and very public privacy issues may make a difference compared with the Take-Two case.
A federal judge ruled Monday that millions of the social network’s users can proceed as a group with claims that its photo-scanning technology violated an Illinois law by gathering and storing biometric data without their consent. Damages could be steep — a fact that wasn’t lost on the judge, who was unsympathetic to Facebook’s arguments for limiting its legal exposure.Facebook has for years encouraged users to tag people in photographs they upload in their personal posts and the social network stores the collected information. The company has used a program it calls DeepFace to match other photos of a person. Alphabet’s cloud-based Google Photos service uses similar technology and Google faces a lawsuit in Chicago like the one against Facebook in San Francisco federal court.
Both companies have argued that none of this violates BIPA, even when this face-data database is generated without users' permission. That seems to contradict BIPA, where fines between $1,000 and $5,000 can be assessed with every use of a person's image without their permission. Again, recent news may come into play in this case, as noted by the lawyer for the Facebook users in this case.
“As more people become aware of the scope of Facebook’s data collection and as consequences begin to attach to that data collection, whether economic or regulatory, Facebook will have to take a long look at its privacy practices and make changes consistent with user expectations and regulatory requirements,” he said.
Now, Facebook has argued in court against this moving forward as a class by pointing out that different users could make different claims of harm, impacting both the fines and outcomes of their claims. While there is some merit to that, the court looked at those arguments almost purely as a way for Facebook to try to get away from the enormous damages that could potentially be levied under a class action suit, and rejected them.As in the Take-Two case, Facebook is doing everything it can to set the bar for any judgement on the reality of actual harm suffered by these users, of which the company claims there is none.
The Illinois residents who sued argued the 2008 law gives them a “property interest” in the algorithms that constitute their digital identities. The judge has agreed that gives them grounds to accuse Facebook of real harm. Donato has ruled that the Illinois law is clear: Facebook has collected a “wealth of data on its users, including self-reported residency and IP addresses.” Facebook has acknowledged that it can identify which users who live in Illinois have face templates, he wrote.
We've had our problems with class actions suits in the past, but it shouldn't be pushed aside that this case has the potential for huge damages assessed on Facebook. It's also another reminder that federal privacy laws are in sore need of modernization, if for no other reason than to harmonize how companies can treat users throughout the United States.
The last time we checked in with PUBG Corp., the company behind the popular PlayerUnknown's Battlegrounds video game, creator Brendan Greene was remarking on how video games are afforded no intellectual property rights at all, despite that absolutely not being the case. This confused take on a key aspect of his industry came on the heels of the developer of PUBG suggesting that it was considering suing Epic Games, the makers of Fortnite, for copyright infringement because Epic had updated its own game with a "battle royale" mode. Like PUBG, this mode pits 100 people against each other in a last-man-standing battle format. It was at that time that we tried to remind PUBG Corp. that the idea/expression dichotomy in copyright law is a thing. While specific expression gets copyright, general concepts, such as generic game-modes and genres, do not. A battle royale game format is no more deserving of copyright than the first-person shooter genre.It seems that the lesson didn't take, however, as it was recently revealed that PUBG went ahead and filed a lawsuit in South Korea way back in January.
After suggesting it might take action, the developer of PUBG has filed a lawsuit against the creator of Fortnite on the ground of copyright infringement. PUBG Corp., which is based in Korea, filed its lawsuit against US-based Epic Games with the aim of getting the courts to decide if Fortnite represents some kind of copy of PUBG. A PUBG Corp. representative told Korea Times that its lawsuit against Epic was actually filed back in January in the Seoul Central District Court. Epic Games Korea, a division of Epic Games, is the defendant.
How this lawsuit flew under the radar for five months is an incredibly irritating mystery to this writer, but it should be noted that no lawsuit has been likewise filed in the United States. While the press doesn't seem to be able to get any specific claims PUBG is making against Epic out of any filings in the South Korea courts, it's likely that the suit was filed there because the claims will rest largely on Fortnite's mimicry of the battle royale format. Again, in the US, it is clear that this is not copyright infringement.There are a couple of other items adding to the strangeness of the lawsuit. For starters, PUBG and Epic have an existing business relationship. PUBG was developed in Epic's Unreal Engine, after all. On top of that, Greene's first comments about Fortnite's battle royale mode were downright supportive before he began complaining about so-called "copying."
In March, PUBG creator Brendan Greene--the Playerunknown from the game's title--said Fortnite is good for the battle royale genre overall. "It's great that the battle royale space is expanding and Fortnite is getting battle royale game mode in the hands of a lot more people," he said, as reported by The Verge.
So, what explains the change of heart and the sudden move to file a lawsuit? It seems that Greene and the PUBG people don't like that Fortnite is simply doing better than them in the market.
This time last year, PUBG was seen as the No. 1 battle royale game, but a lot of attention and awareness currently is around Fortnite. Epic's game has exploded in popularity, and is reportedly a money-making juggernaut. A recent report said the free game brought in almost $300 million in revenue during April alone from its various microtransactions.
Suing the competition because they're successful isn't a great look for any company. Add to that the lawsuit sure seems as though it's over content and mimicry that is generally not afforded copyright protection and this all seems much to do about sour grapes.
The EU's General Data Protection Regulation (GDPR) has only just started to be enforced, but it is already creating some seriously big waves in the online world, as Techdirt has reported. Most of those are playing out in obvious ways, such as Max Schrems's formal GDPR complaints against Google and Facebook over "forced consent" (pdf). That hardly came as a shock -- he's been flagging up the move on Twitter for some time. But there's another saga underway that may have escaped people's notice. It involves ICANN (Internet Corporation for Assigned Names and Numbers), which runs the Internet's namespace. Back in 2015, Mike memorably described the organization as "a total freaking mess", in an article about ICANN's "war against basic privacy". Given that history, it's perhaps no surprise that ICANN is having trouble coming to terms with the GDPR.The bone of contention is the information that is collected by the world's registrars for the Whois system, run by ICANN. EPAG, a Tucows-owned registrar based in Bonn, Germany, is concerned that this personal data might fall foul of the GDPR, and thus expose it to massive fines. As it wrote in a recent blog post:
We realized that the domain name registration process, as outlined in ICANN's 2013 Registrar Accreditation Agreement, not only required us to collect and share information we didn't need, it also required us to collect and share people's information where we may not have a legal basis to do so. What's more, it required us to process personal information belonging to people with whom we may not even have a direct relationship, namely the Admin and Tech contacts [for each domain name].
All of those activities are potentially illegal under the GDPR. EPAG therefore built a new domain registration system with "consent management processes", and a data flow "aligned with the GDPR's principles". ICANN was not happy with this minimalist approach, and sought an injunction in Germany in order to "preserve Whois data" -- that is, to force EPAG to collect those administrative and technical contacts. A post on the Internet Governance Project site explains why those extra Whois contacts matter, and what the real issue here is:
The filing by ICANN's Jones Day lawyers, which can be found here, asserts a far more sweeping purpose for Whois data, which is part of an attempt to make ICANN the facilitator of intellectual property enforcement on the Internet. "The technical contact and the administrative contact have important functions," the brief asserts. "Access to this data is required for the stable and secure operation of the domain name system, as well as a way to identify those customers that may be causing technical problems and legal issues with the domain names and/or their content."
As the tell-tale word "content" there reveals, the real reason ICANN requires registrars to collect technical and administrative contacts is because the copyright industry wants easy access to this information. It uses the personal details provided by Whois to chase the people behind sites that it alleges are offering unauthorized copies of copyright material. This is precisely the same ICANN overreach that Techdirt reported on back in 2015: the organization is supposed to be running the Internet's domain name system, not acting as a private copyright police force. The difference is that now the GDPR provides good legal and financial reasons to ignore ICANN's demands, as EPAG has noted.In a surprisingly swift decision, the German court hearing ICANN's request for an injunction against EPAG has already turned it down:
the Court said that the collection of the domain name registrant data should suffice in order to safeguard against misuse the security aspects in connection with the domain name (such as criminal activity, infringement or security problems).The Court reasoned that because it is possible for a registrant to provide the same data elements for the registrant as for the administrative and technical contacts, ICANN did not demonstrate that it is necessary to collect additional data elements for those contacts. The Court also noted that a registrant could consent and provide administrative and technical contact data at its discretion.
However, as ICANN rightly notes, that still leaves unanswered the key question: would collecting the administrative and technical contact information contravene the GDPR? ICANN says it is "continuing to pursue the ongoing discussions" with the EU on this, and a clarification of the legal situation here would certainly be in everyone's interests. But there is another important angle to this. As the security researcher Brian Krebs wrote on his blog back in February:
For my part, I can say without hesitation that few resources are as critical to what I do here at KrebsOnSecurity than the data available in the public WHOIS records. WHOIS records are incredibly useful signposts for tracking cybercrime, and they frequently allow KrebsOnSecurity to break important stories about the connections between and identities behind various cybercriminal operations and the individuals/networks actively supporting or enabling those activities. I also very often rely on WHOIS records to locate contact information for potential sources or cybercrime victims who may not yet be aware of their victimization.
There's no reason to doubt the importance of Whois information to Krebs's work. But the central issue is which is more important for society: protecting millions of people from spammers, scammers and copyright trolls by limiting the publicly-available Whois data, or making it easier for security researchers to track down online criminals by using that same Whois information? It's an important discussion that is likely to rage for some time, along with many others now being brought into sharper focus thanks to the arrival of the GDPR.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+