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July 2018
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Appeals Court Rejects Sketchy Plan To Pretend To Sell Patents To Native American Nation To Avoid Scrutiny

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Some ethically sketchy patent lawyers thought they had come up with a brilliant scam to avoid having awful patents scrutinized by the special review board created by Congress within the Patent Office -- a process known as "inter partes review" or IPR. This Patent and Trademark Appeals Board (PTAB) has been a useful tool in going back and reversing the mistakes made by patent examiners in letting through bad patents. However, back in September, we wrote about a fairly devious plan by the lawyers from the law firm of Shore Chan DePumpo to help their clients avoid a PTAB review. The situation began with a PTAB ruling back in early 2017 in a review of a patent held by the University of Florida. The University claimed sovereign immunity exempted it from the whole PTAB process under the 11th Amendment (universities claiming sovereign immunity in patent cases goes way back) and the PTAB agreed it had no jurisdiction.Sensing an opportunity, the lawyers at Shore Chan DePumpo worked out a neat little scheme in which a pharmaceutical company would "sell" its patents to a Native American nation (in this case, the St. Regis Mohawk Tribe). The "sale" was in name only. The pharmaceutical companies retained not just an exclusive license to the patents, but basically all other rights as well. The only thing St. Regis got was a nice little income stream in exchange for having its sovereign status used to shield the pharma companies' patents from scrutiny before the PTAB.I'm sure it seemed like a good idea to someone at the time, but it has been an utter failure. In October, the district court made it clear that this was a scam it didn't intend to allow to go forward. Then, in February, the PTAB itself denied the tribe's motion, pointing out that the PTAB wasn't stupid and totally understood the scam being played:

Upon consideration of the record, and for the reasons discussed below, we determine the Tribe has not established that the doctrine of tribal sovereign immunity should be applied to these proceedings. Furthermore, we determine that these proceedings can continue even without the Tribe's participation in view of Allergan's retained ownership interests in the challenged patents. The Tribe's Motion is therefore denied.
And now, just to add one more nail to the coffin of this terrible idea, the Federal Circuit, which traditionally is happy to rubber stamp any scam to keep patent owners happy, has rejected this plan as well. The CAFC ruling doesn't call out this procedure as a scam, but rather focuses in on the procedural questions of whether or not the IPR process is akin to an agency enforcement action (which would not be blocked by sovereign immunity) v. a civil lawsuit (which would be). It goes through a number of factors and decides that it's more of an agency action, and thus the tribe (acting as a front for the pharma companies) can't claim sovereign immunity and avoid having the Patent Office review its patents.I guess the lawyers at Shore Chan DePumpo will just have to go back to sending frivolous takedown notices to bloggers who criticize the firm...

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posted at: 12:20am on 31-Jul-2018
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Two Georgia Sausage Companies Battle Over Trademarked Logos That Aren't Particularly Similar

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We see a lot of dumb trademark lawsuits here at Techdirt, but the most frustrating of them is always those that assert similarities in trade dress when it's plainly obvious that no such similarities exist. Even when afforded the greatest leeway for interpretation, there are times when one company will complain about the branding of another company that simply leaves you scratching your head.A lawsuit filed by Stripling's General Store against Carroll's Sausage & Country Store is an exmaple of this.

Stripling’s General Store is suing Carroll’s Sausage & Country Store because it was using a “confusingly similar mark” to advertise its goods, according to the complaint filed last month in the U.S. District Court for the Middle District of Georgia.The general store also alleges unfair competition, false designation of origin and injury to its reputation.
Look, I could stretch this post out a bit with detailed language of what's involved, but the fact is that Stripling is complaining that its logo and that of Carroll's are too similar so as to mislead the public as to the origin of each's products. Worth noting here is that Stripling fired off multiple C&Ds without receiving a response and that Carroll's has taken no action to change its branding. Also notable is that Stripling is asking for all profits Carroll's received while using this trade dress.And, now, for the branding in quesiton.
It should be obvious just how different these logos are and, more importantly, how little confusion they are likely to create. After all, the only real similarity that is somewhat unique is the use of an image of a pig on each. The counter to that as an argument for uniqueness and confusion is: these are sausage companies. It would be odd if they didn't use images of pigs in their logos. Beyond that, those images are different, as are the color schemes, the verbage, and the names of each source of goods on both logos, which are prominently displayed in both cases. To suggest anyone is going to be confused by any of this is more than a bit crazy.But, with the explosion in permission culture in American business, we've now reached a point where sausage companies are fighting over the right to use the image of a pig in their logos. Great job, everyone!

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posted at: 12:20am on 31-Jul-2018
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This Week In Techdirt History: July 22nd - 28th

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Five Years AgoThis week in 2013, the congressional backlash against the NSA kicked into high gear with an amendment to end phone data collection from Rep. Justin Amash. Naturally the NSA's defenders flipped out, Obama opposed the amendment by insulting congress, and Keith Alexander called an emergency briefing to lobby against it. After a heated debate, the amendment narrowly failed thanks to "no" votes from 217 representatives — including several democrats led by Nancy Pelosi because, hey, you might be in communication with terrorists, right?Ten Years AgoThis week in 2008, we saw the first legal battle specifically over whether people sending DMCA notices must consider fair use, while the IFPI was taking down music that the creators wanted up, the MPAA was spouting doubletalk in its war against DVRs, and Viacom had to apologize for sending a bogus DMCA notice to YouTube after promising not to. Amidst all this, we saw the introduction of the Senate bill to create a copyright czar position (which Victoria Espinel would end up filling).Fifteen Years AgoThis week in 2003, the RIAA's lawsuit dragnet was sweeping up bewildered parents and grandparents. Some folks claimed there were protests in response, but this seemed pretty dubious — except online where some sites were blocking RIAA and MPAA IP addresses (Techdirt declined to participate, preferring they have access to our arguments against them). Meanwhile, movie studios got ready to launch a series of file-sharing guilt trip ads, a Spanish lawyer began following the RIAA lawsuit model, and software company SCO made the staggering claim that all Linux users are pirates.

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posted at: 12:20am on 29-Jul-2018
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Kenyan Music Licensing Collections In Full Chaos As Unlicensed MCSK Society Issues Rival C&D For Royalty Collections

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We've written a couple of times about the full turmoil that is music licensing collections in Kenya. The Music Copyright Society of Kenya (MCSK) has operated there for some time, but recently had its license stripped by the government and courts due to what appears to be some very shady financial practices that mostly amount to -- you guessed it -- not properly paying artists for royalties collected. The government then went about setting up new Collective Management Organizations (CMOs) with the aim of these new CMOs being less corrupt than MCSK. The Music Publishers Association of Kenya (MPAKE) is one such alternative CMO.As we pointed out in previous posts, the MCSK has been remarkably non-compliant with the Kenyan government at pretty much every level, from refusing to open its books as requested, to not complying with requests to cease collecting royalties. That not only continues at present, but the MCSK has actually gone so far as to issue a cease and desist to MPAKE for royalty collections, despite the Kenyan government notifying the public that MCSK was not a licensed collector.

In a letter delivered yesterday, the MCSK through its chairperson Lazarus Muoki Muli said MPAKE had no legal basis to act as a collective management organisation (CMO), as its registration and licensing was unconstitutional and violated the provisions of Section 5 of the Fair Administrative Actions Act and Article 47(1) of the Constitution of Kenya.This development comes after the Kenya Copyright Board (KECOBO) placed an advert in various local newspapers on 19 July highlighting MPAKE, the Performers Rights Society of Kenya (PRISK) and the Kenya Association of Music Producers (KAMP) as the only bodies licensed to collect royalties.KECOBO's move is in conflict with a Kakamega high court judgment delivered on 13 July by justices Ruth Sitati, David Majanja and Thripsisa Cherere, who nullified MPAKE’s licence to collect and distribute royalties on behalf of copyright holders. They declared that KECOBO’s process of issuing MPAKE with licence No CS 005 on 27 March 2017 was null and void.
So what's going on here? Well, the MCSK is fighting in court for its continued right to collect royalties, while the Kenyan government, under its attorney general, is busy telling the public that this is all settled law and that MCSK is out of the CMO business. Meanwhile, due to the court fight, the courts have said the government's licensing of MPAKE in 2017 was unconstitutional, while KECOBO is saying that's true for the 2017 license, but not the license put in place in 2018. Meanwhile, MCSK remains unlicensed by the government, even as it battles for its life in the court system.And if all of this sounds like a huge clusterfuck that can only result in confusion and anger for everyone, you're not the only one.
Afro-fusion musician Sam Ondieki said the court’s ruling had triggered a heated debate among musicians, many of whom were only interested in whether royalties would be paid out to them.“We have waited for an entire year for this verdict,” Ondieki said. “So we are not so much keen in knowing who will be the next CMO. As musicians we want to be paid our royalties before we transfer rights to someone else. We do not know who to believe among the two [MCSK and MPAKE], although the court’s directive is clear."Personally, I can openly say that it is impossible for me to trust the MCSK. I have been a member for about 10 years and I am yet to receive a penny, yet my songs have been receiving airplay.”
In other words, pretty much everyone in this saga sucks out loud. The MCSK appears to be plainly corrupt, the government appears to be promoting other collection societies in a way that circumvents copyright law, and musical artists and the public are all left scratching their collective heads wondering what exactly they're supposed to do.And this chaotic nonsense is good for musicians and creating more music how, exactly?

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posted at: 12:20am on 28-Jul-2018
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Chinese Law Enforcement Alchemists Turn Shit To Drug Bust Gold

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Oh, the glorious career path that is the drug enforcement wing of Chinese law enforcement! (h/t Boing Boing)

Dozens of cities across China are applying an unusual forensic technique to monitor illegal drug use: chemically analysing sewage for traces of drugs, or their telltale metabolites, excreted in urine.One southern city, Zhongshan, a drug hotspot, is also monitoring waste water to evaluate the effectiveness of its drug-reduction programmes, says Li Xiqing, an environmental chemist at Peking University in Beijing who is working with police in these cities.Li says Zhongshan police have already used the technique to help track down and arrest a drug manufacturer. He says a handful of cities are planning to use data from waste water to set targets for police arrests of drug users, some as early as next year.
That's exactly the sort of statement one would expect to be made in the wake of "do what now" responses from not just journalists and citizens, but also many of those on law enforcement drug task forces.That drugs can be found in bodily excretions is no surprise. There's an entire corporate/medical industry reliant on that very fact. That you can track down drug manufacturers by grabbing anonymous… um… data by tapping the sewage backbone is a bit of stretch. It may have helped police get a general sense of where some sort of unadulterated drugs might be flowing from, but my guess is regular, non-shit-sifting policework was involved. Chinese law enforcement have plenty of more effective methods to deploy, especially considering they're not "hindered" by concerns about civil liberties or reputational damage.As the article points out, this isn't the first time sewage has been examined for drug content. But prior to this point, it was done as a really odorous form of drug census. People may not be willing to talk openly about their drug habit(s), but a whole bunch of anonymous donations can be collected without worrying about consent waivers or a rush of entrepreneurial spirits diving into the brown gold for better ad positioning.What does appear to be more useful is mining the effluvia for "data" showing the efficacy of new drug policies. If law enforcement is targeting certain illegal chemicals, measuring the output is a quick (AND DIRTY!) way to see if drug use is dropping.Chinese law enforcement suggests its program should be adopted by other countries with drug problems. I'm not sure it will find many takers. While collecting human waste presents approximately zero civil liberties issues, the spokesperson has greatly overestimated law enforcement's willingness to get its hands dirty… I mean, at least not in this sense. We can hardly get cops to play by the rules we've had in place for more than 200 years. I don't think they're quite ready to move from the unpleasant task of trash pulls to something even more unappealing.

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posted at: 12:20am on 28-Jul-2018
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EU And Japan Agree To Free Data Flows, Just As Tottering Privacy Shield Framework Threatens Transatlantic Transfers

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The EU's strong data protection laws affect not only how personal data is handled within the European Union, but also where it can flow to. Under the GDPR, just as was the case with the preceding EU data protection directive, the personal data of EU citizens can only be sent to countries whose privacy laws meet the standard of "essential equivalence". That is, there may be differences in detail, but the overall effect has to be similar to the GDPR, something established as part of what is called an "adequacy decision". Just such an adequacy ruling by the European Commission has been agreed in favor of Japan:

This mutual adequacy arrangement will create the world's largest area of safe transfers of data based on a high level of protection for personal data. Europeans will benefit from strong protection of their personal data in line with EU privacy standards when their data is transferred to Japan. This arrangement will also complement the EU-Japan Economic Partnership Agreement, European companies will benefit from uninhibited flow of data with this key commercial partner, as well as from privileged access to the 127 million Japanese consumers. With this agreement, the EU and Japan affirm that, in the digital era, promoting high privacy standards and facilitating international trade go hand in hand. Under the GDPR, an adequacy decision is the most straightforward way to ensure secure and stable data flows.
Before the European Commission formally adopts the latest adequacy decision, Japan has agreed to tighten up certain aspects of its data protection laws by implementing the following:
A set of rules providing individuals in the EU whose personal data are transferred to Japan, with additional safeguards that will bridge several differences between the two data protection systems. These additional safeguards will strengthen, for example, the protection of sensitive data, the conditions under which EU data can be further transferred from Japan to another third country, the exercise of individual rights to access and rectification. These rules will be binding on Japanese companies importing data from the EU and enforceable by the Japanese independent data protection authority (PPC) and courts.A complaint-handling mechanism to investigate and resolve complaints from Europeans regarding access to their data by Japanese public authorities. This new mechanism will be administered and supervised by the Japanese independent data protection authority.
It is precisely these areas that are proving so problematic for the data flow agreement between the EU and the US, known as the Privacy Shield framework. As Techdirt has reported, the European Commission is under increasing pressure to suspend Privacy Shield unless the US implements it fully -- something it has failed to do so far, despite repeated EU requests. Granting adequacy to Japan is an effective way to flag up that other major economies don't have any problems with the GDPR, and that the EU can turn its attention elsewhere if the US refuses to comply with the terms of the Privacy Shield agreement.The new data deal with Japan still has several hurdles to overcome before it goes into effect. For example, the European Data Protection Board, the EU body in charge of applying the GDPR, must give its view on the adequacy ruling, as must the civil liberties committee of the European Parliament -- the one that has just called for Privacy Shield to be halted. Nonetheless, the European Commission will be keen to adopt the adequacy decision, not least to show that countries are still willing to reduce trade barriers, rather than to impose them, as the US is currently doing.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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posted at: 12:20am on 27-Jul-2018
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Appeals Court Blocks DEA's Attempt To Bury Lawsuit Settlement Terms

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The government wants secrecy just because and the Sixth Circuit Appeals Court isn't having it. The government entity requesting extra secrecy with zero justification is the DEA. And it's likely requesting it so other doctors it's abused won't come asking for similar settlements.The specifics of the case trace back almost two decades. Two doctors -- both working for the Henderson County Community Hospital in Tennessee -- surrendered their prescription licenses to the DEA while working through their own chemical addictions. One doctor, Tom McDonald, surrendered his all the way back in 1999. The other doctor suing the DEA, John Woods, surrendered his to the DEA in 2012. Both were reinstated a few years later -- McDonald's in 2002 and Woods in 2014. Since that point, they've worked without incident at HCCH. (And prior to that, as well.)Things changed in 2016 when the DEA showed up and ordered them to stop working until they'd obtained a waiver from the agency. This sudden enforcement effort was prompted by the addition of this clause to US code in 2014. In McDonald's case, there was 12 years of uninterrupted good behavior before the rule changed. It was Woods' more recent reinstatement that may have triggered this burst of regulatory activity. Whatever the case, it meant the two doctors were out of work until the DEA decided their years of service without abusing prescription pads meant something.The doctors sued and, eventually, a settlement was agreed to. This is what the Sixth Circuit's short, pointed order [PDF] discusses. The DEA wanted the settlement sealed. In support of this argument, it offered non sequiturs. The judges don't like the DEA's quasi-arguments and say as much:

McDonald and Woods attached a copy of this agreement to their motion to dismiss the petition for review. The government in turn moved to keep the agreement under seal. We apply “a strong presumption in favor of openness as to court records.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (internal quotation marks omitted). The party seeking to seal a record document therefore must “analyze in detail” why the information in that document should stay secret. The government does not even attempt to do that here. Rather than identify information too sensitive to remain public, the government argues that the agreement does not need to remain so—specifically because it binds only the parties and no rule required the parties to file it. That argument gets exactly backwards our operative presumption, which is that “[t]he public has a strong interest in obtaining the information contained in the court record.”
A case like this -- involving a settlement reached with the government after the DEA was hit with a restraining order against further enforcement -- is definitely in the public interest. The medical field requires a lot of education and ongoing training. Wiping out someone's livelihood because rules were changed years after the fact (at least in McDonald's case) to require DEA paperwork never needed prior to 2014 is the wrong way to handle regulatory matters.The DEA had years of work history and two voluntary relinquishments as evidence these doctors could be trusted to mete out medical care and prescriptions. But it ignored all of that to do some "letter of the law" busywork. As the court points out, the public interest for those in the medical field is immense. Burying the settlement is burying information crucial to working doctors in similar situations.
That interest is particularly strong where the information pertains to an agency’s interpretation of a regulation. Other doctors would no doubt be interested to know that the DEA does not plan to treat them like it treated McDonald and Woods.
So, some desk jockey at the agency cross-ref'd a couple of databases post-rule change and agents headed out to make medical care worse by depriving hospitals and clinics of medical staff with clean track records (minus some missteps where the medical professionals were responsible enough to take themselves out of the prescription loop until their own addictions were under control). That's the Drug War being compounded by random enforcement, something that springs from a desire to look like you're making a difference but without having to make any real effort. Of course other doctors want to know how the DEA is going to handle stuff that wasn't a problem for decades, especially when they've made every effort to comply with massive amounts of regulation.The DEA doesn't want people to know how to fight back against bureaucratic busybodying. That's the only reason it wanted the settlement buried. The problem was it couldn't come up with a plausible reason to do so when forced to argue it in court.

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posted at: 12:20am on 27-Jul-2018
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The US Army Gets Armistice With NHL Team Over 'Golden Knights' Trademark

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NHL fans will likely still have fresh in their minds the surprising rookie season of the Las Vegas Golden Knights, an expansion team that took the league by storm and lost in the Stanley Cup finals. Readers here may remember the team more for the fairly odd trademark dispute it was in with the -- checks notes -- United States Army, which for some reason opposed the team's trademark application due to the Army's college and paratrooping teams that go by the same name.At the time, we pointed out that the opposition seemed worrisome for a number of reasons. First and foremost, it seems plainly ridiculous for the Army to suggest that anyone was going to be confused between its college teams, its paratrooping team, and an NHL franchise. Was anyone really worried about the public thinking that the United States military had suddenly gotten into the professional hockey business? But we added to that the gross nature of a branch of the United States military, with a long and storied and proud tradition, dabbling in trademark bullying for apparently no legitimate reason.Which makes the announcement by the Vegas Golden Knights of a coexistence settlement disappointing.

Vegas Golden Knights Chairman and CEO Bill Foley announced today that the Vegas Golden Knights and the U.S. Army have entered into a trademark coexistence agreement regarding usage of the 'Golden Knights' mark and name."We are pleased that we have agreed to coexist regarding the use of the 'Golden Knights' mark and name," said Foley. "Our discussions with the Army were collaborative and productive throughout this entire process. We are appreciative of their efforts and commitment to reaching an amicable resolution."
It appears that the specific terms of the settlement aren't being made public. So we don't know, for instance, whether any money has changed hands here, whether a licensing agreement with the Army is now in place (likely), or whether the Army got anything else out of the arrangement. But all of that is besides the point. The real point here is that the Army brought this opposition to a resolution that didn't involve it backing away from it entirely, leaving in place the gross feeling of a military branch meddling in the trademark affairs of a private business on shaky, if any, basis.These settlements that don't clearly define what is wrong with these types of conflicts are a direct output of our permission culture. The Army participating in this permission culture is a clear, and unfortunate, sign that this sort of thing continues to be pervasive.

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posted at: 12:20am on 26-Jul-2018
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Massachusetts Just The Latest State To Embrace Net Neutrality

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In the wake of the FCC's historically unpopular decision to gut net neutrality, more than half of the states in the nation are now exploring their own, state-level net neutrality rules. In some instances (Montana) states are signing executive orders that ban state agencies from doing business with ISPs that behave anti-competitively. Elsewhere (Oregon and Washington) states are passing new laws that largely mirror the FCC's discarded 2015 rules, and in some instances (California) are a bit tougher than the FCC on things like usage caps or "zero rating."This week, Massachusetts began finalizing approval of S2610, which initially proposed doing many of the things other such bills do (banning ISP blocking, throttling, or crippling of competitor services and websites). But the bill has since been notably reworked to instead create a state-wide registry that ranks ISPs based on how terrible their service, pricing, privacy and other behaviors are:

"There shall be an internet service provider registry to make broadband internet access service quality and network management practices readily available to customers in the commonwealth. The department shall compile for the registry information disclosed by internet service providers in the commonwealth pursuant to this section and from the verification tests conducted pursuant to this section. The department shall organize the registry in a format that is conducive to review and comparison by customers and prospective customers of internet service. The registry shall be available on the department's website and shall include net neutrality and consumer privacy grades under subsection (f) in comparison chart for fixed line internet service providers and 1 comparison chart for wireless internet service providers. The department shall provide the information in the registry upon request."
ISPs that behave would be able to display a Massachusetts seal of approval to, purportedly, clearly advertise that they're not terrible and anti-competitive. Efforts to actually include language preventing things like the blocking and throttling of competitors were supposed to be added via amendment, but were thwarted at the behest of telecom lobbying organizations according to regional news outlets. In conversations with state lawmakers, I've also been told that leaders wanted to tightly restrict the language in the bill to avoid ISP lawsuits, since the FCC's "Restoring Internet Freedom" repeal ironically tries to ban states from protecting consumers (you know, state rights and all that).Since large ISPs convinced the Trump FCC to neuter not only FCC authority but many of the transparency requirements, having a registry that clearly illustrates what kind of connection you're buying isn't a terrible idea. That said, without any hard restrictions on bad behavior, relying solely on naming and shaming bad policy actors can only go so far. A lack of competition means that users can't switch ISPs anyway, so while transparency is great and all, it alone isn't going to force monopoly last mile broadband providers to magically behave.As is usually the case, local broadband and TV providers tried to claim that rules actually preventing them from being anti-competitive bullies would hurt jobs, puppies, and innovation:
"Our members support and adhere to the principles of net neutrality every day while employing thousands of Massachusetts residents and investing over a billion dollars annually in the Commonwealth's economy, Tim Wilkerson, vice president of the New England Cable & Telecommunications Association, said. The measure being considered in the Massachusetts Senate will do little to protect consumers while hurting innovation and economic growth."
Even if these claims could be taken seriously, perhaps that's something ISPs should have considered before they lobbied to dismantle popular and relatively modest (by international standards) net neutrality protections on the federal level. ISPs have promised to sue states that try and protect consumers in the wake of federal apathy, but they've yet to actually do so -- in part because they're nervous about looming legal challenges of the FCC repeal.

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posted at: 12:20am on 26-Jul-2018
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Wikileaks Refused To Publish Paul Manafort's Texts, So Someone Else Did

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We just wrote about why it would be a dangerous move for press freedom for the DOJ to prosecute Julian Assange for publishing leaked documents. In that post, we noted that even if you think Julian Assange is a horrible human being and proactively trying to undermine US electoral sovereignty, the mere act of publishing leaked documents should not be criminal. But, that doesn't mean that Assange can't be hypocritical and one-sided. Obviously, during the 2016 election, when Wikileaks helped spread both John Podesta's emails and the DNC's emails, some wondered if Assange would have published similar messages from the Trump campaign. While publicly Assange insisted he disliked both campaigns equally, other reports and leaked (of course) chat messages certainly suggested otherwise, as did at least some of his apparent attempts to ingratiate himself with Trump insiders, including asking Don Jr. to leak his father's tax returns to Assange to "dramatically improve the perception of our impartiality."Of course, when faced with an opportunity to post the equivalent of the Podesta emails on the Trump side, it appears that Assange decided not to do it. Public records-savant Emma Best recently chose to publish the entire collection of leaked Manafort texts in a searchable database. These texts have long been out there and available if you knew where to look -- and had received widespread reporting in early 2017. However, beyond the excerpts, they were not fully available in a way that was searchable for most users.Best communicated with Wikileaks, who admitted that it had the entire collection as well, but chose not to publish it -- which certainly can be read as hypocrisy on Assange's part, considering the similarities with the Podesta emails. As Best notes in discussing the decision to publish these in a more accessible format:

The public haven't had access to the messages, and the press (including high profile and high budget outlets) haven't had access to an easily searchable version - instead only to an unwieldy database.This was nearly not the case, however - WikiLeaks had a copy of the database, but ultimately didn't publish it, despite its newsworthiness and their willingness to publish unredacted information on the Democrats. Their unexplained decision not to put the database into a searchable format and make it public struck me as questionable at the time, but in light of the disclosure of their preference for the GOP it has become not only questionable, but hypocritical. WikiLeaks' decision can no longer be trusted prima facie or viewed in terms of presumed good faith.
[....]This noteworthy refusal, along with ongoing probes and charges filed against Manafort by the Special Counsel's office, makes the text messages and their contents undoubtedly newsworthy. Their relevance to the general public may go beyond this, as the personal reality reflected in the messages presents the Manaforts as real people, rather than merely as abstract figures. This same reality is, of course, also relevant to news and current events, and to understanding the character and actions of those involved.
There may be reasons why Wikileaks chose not to publish these texts, but the fact that it eagerly published the Podesta emails, yet held back on publishing these texts should at least raise serious questions. Obviously, every publisher makes different decisions on what to publish and what not to publish. And there's no rule saying that you absolutely must publish every "equivalent" set of data or stories. But given all of the background here, and the high profile nature of this, it is noteworthy to point out the different approaches Wikileaks chose to take with two similar sets of data on different sides of the 2016 election.

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posted at: 12:19am on 25-Jul-2018
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University Of Illinois Bullies Alum Out Of Making 'Make Illinois Great Again' Shirts Through Tiny Settlement

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You will recall that earlier this year we discussed the University of Illinois' attempt to trademark bully an alumnus out of making orange and black shirts that read "Make Illinois Great Again." The whole story surrounding the school's actions is somewhat more complicated than it might appear. Part of the issue is that the shirts in question used the image of Chief Illiniwek, something of a mascot the school abandoned a decade ago, and one that was the source of controversy given its cartoonish mannerisms as related to Native American tribes. So, when the school first objected to Ted O'Malley's trademark application, and then later filed suit against him, you should understand that it was done as the school remains under public pressure to disavow the previous use of this imagery. All of that being said, claims that the school's trademark gives it the right to control the word "Illinois" on all apparel were obviously silly.But trademark bullying works, as we've stated many times in the past. And it tends to work all the more when the bully has a large war chest to fund its legal team and the victim is a much smaller, much less well-funded entity. Such appears to be the case with O'Malley, who has settled with the school and essentially agreed to its demands in return for a measly $7,500 payout.

The University of Illinois is paying $7,500 to the Chicago-area alum who made T-shirts that said “Make Illinois Great Again” on the back and had a drawing of Chief Illiniwek on the front. In exchange, Ted O’Malley has to stop selling the shirt and agreed not to sell similar T-shirts in the future.The UI reached a settlement with O’Malley after suing him in March for violating its trademarks for the word “Illinois” and a copyrighted photo commissioned by the UI of the Chief holding up his arms. The UI has also agreed not to challenge O’Malley’s “Make Illinois Great Again” trademark and to dismiss its lawsuit.
Ok, so you may read this and conclude that it's not a full win for the university. And that's true in that O'Malley no longer faces the lawsuit, no longer has to worry about the copyright component of the legal action, and gets to keep his "Make Illinois Great Again" trademark. What such a conclusion would ignore is that the real aim of the school in all of this was, again, to keep an alumnus from using any imagery of a mascot it itself used to embrace but has since abandoned. The school's real issue here isn't trademark or copyright violations, but rather making sure it appears to act to keep images of the Chief from being displayed at all.Put another way: if O'Malley had done everything exactly the same but had never used an image of the Chief on his shirts, the school likely would never had taken any action against him whatsoever. Cast in that light, the school essentially misused intellectual property law in order to attain an unrelated goal. That's trademark bullying. And, for $7,500, it got what it wanted. Keep in mind that part of the point of the shirts were commentary on the state of the University of Illinois and, specifically, its athletic programs.
With the settlement, O’Malley agreed to no longer sell “Make Illinois Great Again” clothing that is orange and blue or that uses any of the UI’s trademarks, logos, symbols or landmarks, such as Chief Illiniwek, the Alma Mater statue or Memorial Stadium.If he makes “Make Illinois Great Again” clothing in the future, he agrees not to make athletic clothing or to use a font similar to the “Fighting Illini” font. He also agreed not to use the “Make Illinois Great Again” trademark to “disparage or impugn” the UI, something his lawyer, Doug Johnson, did before the lawsuit was filed.
So the school used taxpayer money to silence a critic using an embarrassing old mascot's image by being an IP bully. That's not a great look for a public institution.

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Applicant For Major EU Open Access Publishing Contract Proposes Open Source, Open Data And Open Peer Review As Solution

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We've just written about growing discontentment among open access advocates with the role that the publishing giant Elsevier will play in monitoring open science in the EU. That unhappiness probably just went up a notch, as a result of the following development, reported here by Nature:

Elsevier last week stopped thousands of scientists in Germany from reading its recent journal articles, as a row escalates over the cost of a nationwide open-access agreement.The move comes just two weeks after researchers in Sweden lost access to the most recent Elsevier research papers, when negotiations on its contract broke down over the same issue.
The open science monitoring project involving Elsevier is only a very minor part of the EU's overall open science strategy, which itself is part of the €80 billion research and innovation program called Horizon 2020. A new post on the blog of the open access publisher Hindawi reveals that it has put in a bid in response to the European Commission's call for tenders to launch a major new open research publishing platform:
The Commission's aim is to build on their progressive Open Science agenda to provide an optional Open Access publishing platform for the articles of all researchers with Horizon 2020 grants. The platform will also provide incentives for researchers to adopt Open Science practices, such as publishing preprints, sharing data, and open peer review. The potential for this initiative to lead a systemic transformation in research practice and scholarly communication in Europe and more widely should not be underestimated.
That last sentence makes a bold claim. Hindawi's blog post provides some good analysis of why the transition to open access and open science is proving so hard. Hindawi's proposed solution is based on open source code, and openness in general:
Our proposal to the Commission involves the development of an end-to-end publishing platform that is fully Open Source, with an editorial model that incentivises Open Science practices including preprints, data sharing, and objective open peer review. Data about the impact of published outputs would also be fully open and available for independent scrutiny, and the policies and governance of the platform would be managed by the research community. In particular, researchers who are currently disenfranchised by the current academic reward system, including early career researchers and researchers whose primary research outputs include data and software code, would have a key role in developing the policies of the platform.
Recognizing the flaws in the current system of assessment and rewards is key here. Open access has been around for two decades, but the reliance on near-meaningless impact factors to judge the alleged influence of titles, and thus of the work published there, has barely changed at all. As the Hindawi blog post notes:
As long as journal rank and journal impact factor remain the currency used to judge academic quality, no amount of technological change or economic support for open outputs and open infrastructure will make research and researchers more open
Unfortunately, even a major project like the Horizon 2020 open research publishing platform -- whichever company wins the contract -- will not be able to change that culture on its own, however welcome it might be in itself. Core changes must come from within the academic world. Sadly, there are still precious few signs that those in positions of power are willing to embrace not just open access and even open science, but also a radical openness that extends to every aspect of the academic world, including evaluation and recognition.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Risky Click: Adding Undercover Cop As Friend Nets Man Conviction For Gun Charges

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Keep your friends close, but your Facebook friends closer.
- a multitude of criminal defendants probablyHere's the thing about public profiles on social media services: they're public. If you don't want to be immediately arrested for committing criminal acts, maybe steer clear of social media. A multitude of examples can be found here at Techdirt, many of them covered caustically by Tim Geigner.But it's not just bragging about bad behavior getting people caught. It's not being more selective about who you let into your online inner circle. It's not a new thing but it's only going to become more prevalent. "Friending" people you don't know is pretty much letting cops take a look around your place without a warrant.A recent Delaware Supreme Court ruling said there's no Fourth Amendment violation contained in government surveillance of a public Facebook account, even if a cop hid behind a pseudonym to get invited into the suspect's social circle. While it does seem like months of lurking to produce only a weapons possession charge is sort of low on the ROI, scale, lurking is a passive effort that only requires the periodic checking of notifications from surveilled accounts.There's no expectation of privacy to stuff published to social media accounts others can view. Setting it to "Friends Only" may prevent the general public from accessing the contents of your page, but when the passive surveillance is already coming from inside the house (so to speak), there's really little you can argue when seeking to have this evidence suppressed. It's sort of like inviting in vampires and then complaining about the holes in your neck.Another defendant is challenging the evidence cops acquired by browsing his Facebook page as "friends." The Sixth Circuit Court of Appeals has some sympathy for the arguments raised. In this case, a citizen's tip turned into low-key surveillance, which ultimately turned into federal gun charges. From the decision [PDF]:

After serving time in prison for a previous felony, [Malik] Farrad was released from federal custody in January 2013. Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when “[v]arious confidential informants and concerned citizens” evidently “reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee.” Some time later, a Johnson City police officer named Thomas Garrison, using an undercover account, sent Farrad “a friend request on Facebook.” After Farrad “accept[ed] the friend request,” Garrison was able to see more of Farrad’s photos. “One [photo] in particular” “caught [his] interest”: a photo that showed what appeared to be three handguns “sitting on a closed toilet lid in a bathroom.
I don't own a handgun so I'm not really up on proper display technique, but this practical demonstration of why the bathroom is the most dangerous room in the house soon found its way to the FBI, which immediately sought a warrant for the contents of Farrad's Facebook account. This turned up some other photos of guns, along with limbs and distinguishing tattoos that seemed to constitute a Facebook approximation of a convicted felon in possession of handguns.Oddly, no warrant was obtained to search Farrad's residence. This meant the entirety of the prosecution rested on photos of guns pulled from Facebook. The Sixth Circuit opens its opinion by remarking of the unusualness of the case, which certainly isn't going to seem all that unusual in the coming years.
No physical evidence was presented, no witness claimed to have seen Farrad with a gun, and Farrad himself never made any statements suggesting that he owned a gun; instead, the Government relied primarily on photographs obtained from what was evidently Farrad’s Facebook account. To help prove its case, however, the Government called two police officers: Officer Garrison, who testified that criminals are particularly likely to upload photos of criminal deeds soon after committing those deeds, and Officer Hinkle, who testified at length about the similarities between the photos and a real gun, as well as the dissimilarities between the photos and the closest fake gun of which he was aware.
Now, there were ways Farrad could have challenged the evidence on appeal. As his counsel noted during his trial, the photos -- which the trial court found were "self-verifying business records" stored by Facebook -- may not have been evidence of anything. First off, the photos may have been posted when Facebook said they were (October of 2013) but there's no info available anywhere showing when the photos were actually taken. Both Facebook's rep and the investigating officer admitted the only thing Facebook knows is when photos are uploaded. Existing metadata is stripped during the upload process, removing any evidence of where and when the photos were taken.As the court notes, the prosecution's decision to use only evidence gathered from Facebook raised a host of questions about the sufficiency of the evidence.
As the foregoing helps make clear, there are a few potential theories on which Farrad’s trial and appellate counsel could have challenged his indictment and conviction, respectively. First, could any rational juror have concluded beyond a reasonable doubt that the photos were taken on or about October 11? (Call this the “date” theory.) Second, could any rational juror have concluded beyond a reasonable doubt that the item in the photos was not a fake gun? (Call this the “replica” theory.) Third, could any rational juror have concluded beyond a reasonable doubt that the photos were not altered to suggest the appearance of a real gun? (Call this the “Photoshop” theory.) Fourth, could any rational juror have concluded that Farrad was in fact the person in the photos? (Call this the “lookalike” theory.)
Unfortunately for Farrad, his counsel never developed most of these arguments and actively abandoned the first one on appeal. Instead, his rep focused on the theory least likely to succeed: that the guns in the photo weren't real guns. The court isn't impressed by this theory or Farrad's decision to pursue this one on appeal.
The legal problem is this: Farrad is not the first person in our circuit to argue that what appears in images to be a gun is really a sophisticated replica, though he may be the first to argue it in this particular context. If a defendant is convicted of armed robbery, however, and claims the gun that witnesses saw was merely a convincing fake, reasonable jurors may infer—at least when corroborated by images or the testimony of a witness with law-enforcement experience— that the gun was real.
The court acknowledges the comparison isn't entirely fair. The guns weren't used to serve as a threat in the commission of a violent crime. They were merely pictures on a Facebook profile. But they were particularly detailed photos which aided the prosecution in its quest to prove they were the real thing.
In any event, however, the replica theory falters on the facts, because this is not a case in which a jury was asked to draw a conclusion from a few grainy or ill-lit photos, or asked to guess at an object out of focus or in the distance. Rather, the jury in Farrad’s case saw seven different photos, all from different angles, some remarkably close-up and of seemingly high resolution. And it heard exceedingly meticulous testimony from Hinkle— pointing to, among other things, markings and serrations on the slide, a lever and ridges on the trigger guard, and the shape and position of the firing pin—that both (a) convincingly likened the item in the close-up photographs to a real Springfield XD .45, and (b) discredited the closest non-gun comparator that Hinkle could find.
That the guns were real doesn't necessarily impute ownership. This was cobbled together from the array of info pulled from Facebook and this point mostly went unaddressed by the lower court and the appeals court. There may have been more to say on the subject but this question was addressed obliquely by Farrad and his lawyer, which leads to the court affirming the lower court's decision.This is unfortunate for Farrad since the Appeals Court says it does have a problem with the testimony offered by law enforcement on this particular point. The government's expert on social media surveillance testified that he believed criminals were day-and-date when celebrating illegal acts on social media. He declared more often than not criminals upload photos, etc. to social media sites soon after acts have been committed or ill-gotten goods obtained. When pressed by the defense, he could not state specifically -- or even generally -- how often immediate posts happen compared to delayed posts of photos taken week, months, or years ago.The Appeals Court says this supposed testimony -- and the trial court's overruling of the defense's objections -- was not a harmless error. Unfortunately, Farrad's counsel abandoned the "date" theory during the trial, in essence making the error harmless by not challenging it prior to jury deliberations. This theory was (again) disavowed by Farrad's lawyer in briefs to the Sixth Circuit, leaving it little choice but to uphold the conviction and sentence. It doesn't like the outcome, but it can only work with what it's given.
The bottom line in this case—that Farrad has been sentenced to serve 188 months in prison because the Government found Facebook photos of him with what appears to be a gun— may well raise a lay reader’s hackles. There are likewise aspects of Farrad’s trial and conviction—the date issue, Officer Garrison’s testimony—that are at least debatably troubling from a legal perspective. Nevertheless, we are not empowered to grant relief based on arguments not made or where errors were harmless.
There are many troubling aspects to this case. With very little effort expended, law enforcement agencies are building cases involving nothing but social media posts. A possession charge used to mean someone being physically caught with the actual, physical contraband in their possession. Now, it's apparently enough to just submit a bunch of Facebook posts as evidence and hope the defense fails to pick the right argument to pursue. What used to be supporting evidence is now the main event, and it all starts with risky clicks by social media users.

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This Week In Techdirt History: July 15th - 21st

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Five Years AgoThis week in 2013, as new leaks made it clear that NSA surveillance went even further than everyone thought, we got disturbing comments from NSA boss Keith Alexander about the need to "collect it all" (which also happens to be the name of our CIA card game which you can still preorder...) and from a former top agency lawyer who blamed the 9/11 attacks on civil libertarians. But the backlash grew too, with the EFF filing a massive lawsuit along with several other groups, and one congressional rep trying to strip the NSA's funding while another aimed to repeal the Patriot Act and the FISA Amendments Act.Ten Years AgoThis week in 2008, a closer look at the Viacom/YouTube lawsuit revealed Viacom's focus on finding out what Google employees uploaded as a sneaky way to hopefully eliminate some DMCA protections. Apple launched its much expected lawsuit against Mac clone maker Psystar, and a UK law firm went big on the pre-settlement shakedown game with over 100 lawsuits against file sharers. A court ruling about bots in World of Warcraft set a dangerous copyright precedent, and we saw some amusing DRM irony when Ubisoft broke its own game then fixed it by issuing a third-party DRM cracking tool as an official patch. And, sadly, despite an earlier rejection, the EU brought up copyright extension again and voted to bump the term of performance rights up from 50 to 95 years.Fifteen Years AgoThis week in 2003, while the MPAA was fighting a bill just to spite the EFF, the RIAA was going nuts with its subpoenas to identify file sharers at a rate of about 75 per day. Two Catholic Universities quickly caved and turned students over to the RIAA, and while some studies suggested that file sharing was diminishing, there were also a lot of people passionately defending it.

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Cop Costs Taxpayers $60,000 And One (1) Drug Bust After Lying About Almost Everything Related To The Traffic Stop

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Oh my. What fun it must have been for this officer to find out his lies were contradicted by his partner's body camera footage. Thanks to these lies, Officer Joshua Bates of the San Jose Police Department is now former officer Josh Bates, target of a federal civil rights lawsuit. But his troubles began during the traffic stop, culminating in this (first) judicial vindication of Cosme Grijalva.

Saying he was “troubled” by the testimony, Superior Court Judge Eric Geffon threw out the drug case in October against former suspect Cosme Grijalva, after the prosecution dismissed the charges. The City Council on Tuesday agreed to settle a civil-rights lawsuit filed by attorney Jaime Leaños on Gijalva’s behalf for $59,900.
No charges and a cash settlement. That's the way things break when officers lie. And lie Bates did. Several timesFirst, he trapped himself in a lie during cross examination. While seeking to obtain consent to search Grijalva's car, Bates used his phone to contact a translator to help bridge the language gap. Pushed for details on this mysterious translator -- one that had changed sexes during the course of his testimony -- Bates finally settled on calling the translator "she." Then he admitted it wasn't a department translator, but rather someone named Lilia... who just happened to be Bates' wife.
Body-camera video recorded by Bates’ partner, Ian Hawkley, who is also named in the suit, shows Bates telling his wife over the phone: “So what you’re going to do is you’re going to tell this person that I know there is methamphetamine in the car — crystal, and you are going to tell him that I’m going to get a dog who’s going to come over and is going to sniff and tear their car apart.”
Hawkley's video came as a surprise to Bates. Not a complete surprise, though. At one point in the recording, Hawkley let Bates know he was "in the red" (recording) and had been "for awhile." By that point, too much damage had been done. Bates had already called his wife to translate his threat for Grijalva and was engaged in a warrantless search of Grijalva's van without his consent. Bates did not activate his camera, violating PD policy. He also admitted to trying to get Hawkley to deactivate his body cam.Bates apparently had an ongoing aversion to complying with the Constitution and PD policies.
There is evidence suggesting this might not have been a one-time instance for Bates. According to court documents filed by Singh, the week before Bates’ encounter with Grijalva, he and another officer stopped and arrested a bicyclist on suspicion of alleged marijuana possession. Body-worn camera footage reportedly showed that Bates omitted mentioning a pat-down search in his police report on the incident.Other video from that case also shows Bates having a conversation with another officer about how to come up with probable cause to make an enforcement stop when there is nothing readily apparent.
Bates also fudged the paperwork in this case. He tried to align his testimony with his bogus police reports but got tripped up by his own faulty memory and his partner's recording of the incident. And that has netted him two lawsuits and an early exit from his law enforcement career. Bates resigned shortly after this disastrous courtroom performance. With any luck, he'll be employed by another law enforcement agency before too long. You know how it is with bad hombres like this. They get sprung on technicalities and are back on the streets (in uniform) within days or weeks of an unceremonious sacking/resignation-tendering.The only thing in this story that makes it an anomaly is the resignation. Other than that, it's par for the course. Cops lie. And the reason they do it so frequently is that they almost always get away with it. Cameras are changing that… slowly. But they're only slightly better than nothing at all at this point. The sad thing is, we'll just have to take what we can get because law enforcement agencies clearly aren't interested in upsetting the apple cart and letting all these "bad apples" roll into the nearest gutter. Change comes from within and law enforcement has proven itself highly resistant to change.

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Wondering How Suburban Express Is Doing In Lawsuit Brought By Illinois Attorney General? Really Fucking Bad!

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Back in May, we wrote about Suburban Express, the comically awful bussing company that works the University of Illinois-Champaign to Chicago circuit and is owned by Dennis Toeppen, being sued by Illinois Attorney General Lisa Madigan. Why it was sued by the state will require you going through the backlinks above, but can more succinctly be expressed in the following math equation:

(legal threats against a redditor for negative reviews) x 2 +(doxxing complaining customers) + (lawsuits filed against customers for complaining) - (rescinding those lawsuits) + (refiling those same lawsuits again) + (Toeppen being arrested for harassing his critics) + (filing more lawsuits) x (sending out a racist email advertisement promising that you won't see Chinese people on its busses) = well, hello there, federal court
Okay, fine, so the equation wasn't all that succinct. Still, the answer to why Madigan sued is essentially because Surburban Express likely violated all kinds of laws in doing the above. Madigan's suit alleged a dizzying array of violations of civil rights and consumer protection laws, as well as Illinois law on civil rights. Toeppen stands accused of harassment of customers for leaving the company negative reviews, arbitrary refusal of service based on not liking customers for a variety of reasons including racial reasons, and having internal and external communications, such as the advertisement that ridicules Asians and Jews, because every bigot entree basically just comes with a Jewish piece of parsley. In all, Madigan included 182 pages of exhibits backing up her accusations.So, how's it going?Well, pretty fucking bad for Toeppen and Suburban Express, it turns out. Ken White lays out a summary of what's occurred with the suit thus far.
It's not looking promising for Toeppen or Suburban Express in court. They agreed to a Temporary Restraining Order barring them from publishing the personal identifying information of customers, required them to take down the personal identifying information they already published, revise their lawsuits to redact gratuitously filed personal identifying information, and stop retaliating against customers for online reviews. Toeppen and Suburban Express agreed to have that order extended a few times, and now the AG wants to make it into a more long-term injunction. Meanwhile the attorney for Suburban Express and Toeppen wants to quit, citing strategic disputes and non-payment. Toeppen is falling back on the game-winning strategy of semi-coherent attacks on the media.
That last bit takes the form of a bizarre attack on The News Gazette. After reporting on the case, the News Gazette received a brief and vague bit of pushback directly from Toeppen as to its reporting about Toeppen's lawyer looking to exit the case. As per usual with Toeppen, the interaction was long on bombast and short on anything worthwhile.
After this article was published, Toeppen emailed The News-Gazette to criticize its reporting."Don't try to report on things you do not understand and are unwilling to research," he wrote. "Your reporting on this matter has been idiotic in the extreme."A News-Gazette email asking for clarification bounced back with an error saying the sender's email address had been rejected.
"You're wrong, but I won't explain how, and I'll block your email address right after I send this!" is about as useless an interaction as I can think of. None of that changes the News Gazette's reporting about Toeppen's attorney seeking to no longer represent Suburban Express over both strategic issues and a lack of payment from Toeppen, not to mention that Suburban Express' insurance company is asking the court to declare that it doesn't have to pay for the lawsuit, essentially because the policy doesn't cover Toeppen being an asshole.
The Hartford has denied coverage, Long said, and Manufacturers Alliance Insurance Company denied coverage and filed a lawsuit against Toeppen and Allerton Charter Coach, which operates as a contractor for Suburban Express.It's seeking a decision from the court on whether it correctly denied coverage, arguing that policies Allerton and Toeppen have exclude coverage when the damages result from intentional misconduct, as Madigan's lawsuit alleges.
Now, look, I know it might seem like I'm actively rooting against Toeppen and Suburban Express and for Madigan to at the very least make an example of them, but it only looks that way because it's absolutely true and I have no interest in pretending otherwise. The level of harassment and vitriol Toeppen has displayed, all because people don't want him to run his business as though this was Montgomery circa 1955.

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Miami Cops Forced To Give $20,000 Back To Person They Stole It From After Screwing Up Their Supposed Drug Bust

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The schadenfreude dripping from this case is positively delicious.

This story of the spectacularly swift rise and fall of a profitable drugs-and-guns bust comes to us via C.J. Ciarmella at Reason, who has his own particularly sumptuous line summing up the debacle.
[F]or police, what looked like a delicious nougat of a drug bust turned out to be the coconut cream of disappointment.
Let's head back to May 18, 2018, when a local media outlet breathlessly acted as law enforcement stenographers to "inform" their viewers about dangerous individuals being taken down by their fearless blue protectors.
A traffic stop by Miami-Dade Police lead to a stunning discovery this week: a car filled with a half dozen assault rifles and pistols, $20,000 in cash and more than 10 bottles with liquids that you normally need prescriptions for including promethazine with cocaine.“It’s amazing how something as simple as a traffic stop can lead us to crack a lot of cases,” said Miami-Dade Police Detective Alvaro Zabaleta. “A lot of serial killers are behind bars because of traffic stops. These traffic stops lead to so many things in the criminal world and they are never routine. We warn our officers that there is no such thing as a routine traffic stop. You never know what you are going to get.”
First off, it was "promethazine with" codeine, not "cocaine." Second, this is all speculation because the seized bottles weren't tested -- not even with a shit $2 field drug test more prone to producing false positives than a drug dog. Third, the weapons were all legal, and the person who owned them had a permit to conceal them. Fourth, the other person in the car was a stripper.Why is number four relevant? Well, it has a lot to do with this case falling apart. And that makes this sentence from CBS Miami's obsequious coverage particularly hilarious.
The Miami-Dade Police narcotics bureau is taking a close look at this case and Zabaleta said it is one that shows how risky such traffic stops can be.
The closer look isn't going to help. Because a closer look has already revealed a number of problems with this daring roadside drug/gun bust.
Miami-Dade police is on the hook for legal bills after cops illegally seized a cache of guns — and nearly $20,000 in stripper cash.The department has agreed to pay more than $3,000 to defense lawyers hired by Ras Cates, 33, and his wife, Lizmixell Batista, a 20-year-old stripper at Cheetah Gentleman's Club in Hallandale Beach.
Up at the top of the list of things that made this all fall apart under closer inspection is officers' decision to bypass the Fourth Amendment on their way to turning a moving violation (police claimed the driver cut them off when entering the road) into splashy drug/gun headlines (with bonus stripper!). That ended the prosecutor's case before it could even get started.
[B]ody-camera footage showed that an officer, while friendly with Cates, never got permission to search the trunk but instead "commanded defendant to pop the trunk," prosecutors wrote."Search of the trunk was illegal," prosecutor Johnathan Nobile said in a memo explaining why the state declined to press charges.
Then there was this, which produced an immediate and plausible explanation for the cash:
As for the money, the bills were discovered in Batista's purse. Body-camera footage obtained by the Miami Herald showed she immediately told cops about her cash-only job.
Goodbye, case. Goodbye alleged drug bust. Goodbye $20,000. Goodbye $3,000 in taxpayer funds. Goodbye self-congratulatory statements that probably would have aided the defense had this gone to trial.But wait! Convictions are never much of an obstacle to legalized theft via civil asset forfeiture, right? Normally, no. But in this case, it appears the county would like to distance itself as quickly as possible from this embarrassment. Plus, there's a really good reason someone might have a ton of cash in small, unmarked bills just laying around. The lawyer for the violated couple says it best:
“I felt that the glitter on the seized cash was compelling evidence, but apparently the police department disagreed," said defense lawyer [Jude] Faccidomo.
The judge saw enough compelling evidence to block the illegal seizure. Another stripper testified on Batista's behalf and the body cam footage apparently did the rest. In less than sixty days, this drug bust has gone from a local triumph (as seen exclusively on CBS Miami!) to the city being $3,000 poorer than it was prior to this officer deciding he could turn a traffic stop into headlines and a cash payout.

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posted at: 12:18am on 20-Jul-2018
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Texas A&M Wins Trademark Suit Against Soap Company In Washington State By Playing Six Degrees Of Trademark Licensing

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Readers here will likely be aware of the tortured history of Texas A&M's "12th Man" trademark. If you're not, the term describes the fans of the team and their tendency to make so much noise to effect on-field play during games. A&M, which holds a trademark for the term, has made a name for itself as a trademark bully, going around and threatening basically anyone that uses anything remotely like that term, even as it has in the past infringed on the IP of others. The school has been so successful in locking down this term for use in anything sports related that the Seattle Seahawks, the NFL team that also refers to its fans as its "12th Man", pay a licensing fee to the school to do so.And now that licensing arrangement appears to be part of the reasoning A&M's legal team used to sue a soap company based in Washington State for using the "12th Man" term as well. In the school's filing, embedded below, it argues that because the soap company resides in the same state as the Seahawks, and because the company's soap product "12th Man Hands" includes an image of a football on the packaging, this makes it an infringement on its trademark, despite soap and athletics not being in related marketplaces. The USPTO somehow actually bought this six-degrees-of-licensing-separation argument.

According to the trademark board, the soap company was trying to call to mind the Seahawks’ 12th Man thing when designing the soap. There’s even a football on the “12th Man Hands” soap bar, and the company acknowledged it was trying to reach Seahawks fans, which makes sense because it’s a Washington-based company.  But according to the board, the soap-makers didn’t clear their use of the 12th Man mark with A&M specifically. That appears to have hurt their case.
And the board ruled against the soap company. That's ridiculous for several reasons. First, no linkage in geography, nor the company's desire to reach Seahawks fans, creates confusion on its own in the public. Other than the image of a football, there is no other linkage to the Seahawks at all. It's just a puck of soap with something of a stock image of a football being held by a hand. Nobody is going to look at that and think it was soap branded by the Seahawks.Secondly, even if the above weren't true, the confusion would be between the soap company and Seahawks, not Texas A&M. Whatever the licensing agreement between the Seahawks and the school, there is absolutely zero chance for anyone in the public thinking that Texas A&M has anything to do with this soap company. That, I'm confident saying, is completely inarguable. If anyone should have sued here, it should have been the Seahawks, and even that suit would have been ridiculous. A&M included information about past licensing deals for soap with other companies, but none of them were for "The 12th Man" use, and all of them were instead for university-specific terms and imagery, such as its logo.How in the world the Trademark Board ever bought into this is beyond me.

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Some Thoughts On The EU's Latest $5 Billion Google Antitrust Fine

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As was widely expected, earlier today, the EU Commission brought down its latest antitrust fine against Google, this time for an eye-popping $5 billion. The number gets the attention, but it's worth looking at the underlying details here. This was the result of a two year investigation, specifically into certain bundling practices that Google used concerning Android and some of its apps. When Competition Commissioner Margrethe Vestager first announced the investigation in April of 2016, she more or less explained where they were headed:

The Commission's preliminary view is that Google has implemented a strategy on mobile devices to preserve and strengthen its dominance in general internet search. First, the practices mean that Google Search is pre-installed and set as the default, or exclusive, search service on most Android devices sold in Europe. Second, the practices appear to close off ways for rival search engines to access the market, via competing mobile browsers and operating systems. In addition, they also seem to harm consumers by stifling competition and restricting innovation in the wider mobile space.
And... that's more or less exactly what the Commission found in today's announcement.
Commissioner Margrethe Vestager, in charge of competition policy, said: "Today, mobile internet makes up more than half of global internet traffic. It has changed the lives of millions of Europeans. Our case is about three types of restrictions that Google has imposed on Android device manufacturers and network operators to ensure that traffic on Android devices goes to the Google search engine. In this way, Google has used Android as a vehicle to cement the dominance of its search engine. These practices have denied rivals the chance to innovate and compete on the merits. They have denied European consumers the benefits of effective competition in the important mobile sphere. This is illegal under EU antitrust rules."In particular, Google:
  • has required manufacturers to pre-install the Google Search app and browser app (Chrome), as a condition for licensing Google's app store (the Play Store);
  • made payments to certain large manufacturers and mobile network operators on condition that they exclusively pre-installed the Google Search app on their devices; and
  • has prevented manufacturers wishing to pre-install Google apps from selling even a single smart mobile device running on alternative versions of Android that were not approved by Google (so-called "Android forks").
I've been critical of some antitrust activity and supportive of others over the years, and I think it's important to take a step back and look at whether or not this actually will likely lead to greater innovation -- no matter what the reasoning is (and, it should be noted, many European officials have made it clear they think EU antitrust activities should be used to harm American companies because they're big and American, rather than for any principled reason concerning competition or innovation). And, of course, there are some people who simply hate big tech companies and will cheer on any attack on them whether it's for good or bad reasons.Just to set some signposts for the discussion: I believe, and have argued strongly over the years, that competition is the key to innovation and innovation is an important component of making everyone's lives better. You are free to disagree with those claims, but then we're having a very different discussion. This is the lens through which I view this entire discussion. Based on that, antitrust activities are useful when they are used to stop truly harmful monopolistic practices that hold back competition and innovation. But, antitrust activities for other reasons, or which don't seem likely to result in greater competition and innovation tend to be wasteful and silly. So... where does this latest fine from the EU come down?As I noted when the investigation was first announced, it seemed that only one of the three "prongs" of the investigation really seemed like a big issue: the preventing manufacturers from selling phones with alternative versions of Android. There is a non-nefarious reason why Google might want this -- because if those non-Google Android versions are poorly done, it could confuse people and reflect poorly on Google... but this condition could clearly be used to stifle competition and innovation in the space. There's a reasonable argument that this was always a step too far, and Google never should have gone down that path in the first place.The other reasons given for the fine remain... a lot less compelling. First, there's the issue of tying Google search and Chrome to offering Google Play as a pre-installed app. First off, the EU admits (oddly) that this is unfair because everyone expects the Google Play store to be pre-installed:
As part of the Commission investigation, device manufacturers confirmed that the Play Store is a "must-have" app, as users expect to find it pre-installed on their devices (not least because they cannot lawfully download it themselves).
Okay, fair enough. But you know what that very same Play Store lets you do? Download other browsers and search apps. I don't use Chrome on my phone (I use Firefox, Firefox Focus -- which is fantastic, or Brave). I've even used alternative app stores in the past, but eventually shifted back to the Play Store, mainly because Google seemed to do a much better job of stopping dangerous or crappy apps from getting on my phone. And, as Google has suggested, part of the reason for requiring Chrome to be installed is that tons of other apps actually use Chrome components as part of how they work. So not installing Chrome with the Play Store would actually lead to a lot of apps not working properly.The other issue for which Google was dinged was the payments to device manufacturers to make Google search the "exclusive" pre-installed search on those devices. Now, I could totally see a valid antitrust complaint on this point if Google were forcing manufacturers into this agreement against their will, and were able to force them to do so. But... here it's about Google doing a business deal to pay manufacturers to be the exclusive. As we pointed out at the beginning of the investigation, how is that different than when Google paid Mozilla to be the default search engine in Firefox? Then Microsoft outbid Google and Bing became the default.Either way, on this issue, Google stopped doing this practice entirely in 2014.Google says it's going to appeal this decision, and Google CEO Sundar Pichai is hinting that if the ruling is upheld, Google may no longer be able to offer Android for free in the EU. Google also argues that the way its designed its Android business has created a tremendous amount of choice -- including providing smart phone / tablet / other devices that are available at price points and in markets where Google's main competitor in this space, Apple, refuses to make any real offerings. And that's a fairly compelling point.The bigger question, again, though is what will be the real impact on innovation for end users of all of this. I'm not convinced (should this hold up) that it will have much of an impact either way. I doubt making any of the required changes will really harm Google that much (as noted, in at least one case, it already gave up the practice four years ago). But I also don't see how any of the required changes really helps competitors or app developers in any significant way. It doesn't make any of them more likely to get more users, or provide a better way for them to get their services out there.One of the issues with anything having to do with innovation is that it's impossible to envision the "innovation that would have occurred" in the counterfactual scenario in which the supposed antitrust violations never occurred. But looking over these issues, I'm hard pressed to think of how anything would have developed all that differently if Google hadn't done these things in the first place. Perhaps Amazon's Fire devices would have a larger market? Perhaps we'd have seen more innovation with other third parties building out their own versions of Android with their own playstores. But it seems unlikely that it would have materially changed how the search market and browser market developed.Of course, it should be noted that there is some amount of karma here. Back during the Microsoft antitrust fight, Google stepped up in 2006 to complain to the EU Commission about Microsoft's bundling and default practices. Specifically, Microsoft's browser at the time included a built in search box that defaulted to Microsoft's own search (at the time, called MSN search). And Google didn't like that.
"The market favors open choice for search, and companies should compete for users based on the quality of their search services," said Marissa Mayer, the vice president for search products at Google. "We don't think it's right for Microsoft to just set the default to MSN. We believe users should choose."
And, amusingly, Microsoft's own response to that criticism was nearly identical to Google's today, saying that "the user is in control" and it's easy to change the defaults. So there's absolutely some hypocrisy in how Google has acted through this whole thing.However, in the end, I'm still hard pressed to see how today's fine will actually change anything in a way that improves innovation and what the public gets to do. Google is competing with lots of companies on a variety of different fronts these days. Earlier this year we had a podcast exploring how companies might disrupt Google, and I don't see how these moves make any of what we discussed any easier at all. Instead, it seems to be fighting the last fight, over mobile UI, rather than the next real competitive and innovative fights on different kinds of services.

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EPIC Bravely Defeats 14 Year Old's Mom In Court To Continue Lawsuit Against Her Son For Cheating In Fortnite

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Earlier this year, we wrote about EPIC, makers of the popular Fortnite game, picking up the baton from Blizzard to pretzel copyright law such that it believes it can sue those that cheat in its game for copyright infringement. This belief centers on the claim that these cheaters break the EULA, despite the fact that no actual copying occurs when breaking a EULA. To make PR matters worse for EPIC, the company managed to sweep up a fourteen year old in its lawsuit-blitz. Despite the teenager supposedly being quite brazen in his use of cheats, and in his communications to others about how to cheat in Fortnite, I had assumed that EPIC would find a way to quietly back away from this particular suit, given how shitty the optics would be. It did the opposite, pursuing the case and seeking a summary judgement after the teenager failed to respond. The court refused, however, citing a letter to the court from the teen's mother, who argued that the suit against her son was overkill and, critically, that the argument over the EULA was null because her minor son couldn't legally enter into such an agreement without her input.Rather than again trying to salvage some PR positivity from any of this, EPIC then decided instead to take on the mother's letter as a legal matter, with its lawyers countering it as a legal argument. EPIC argued that caselaw is clear that such contracts aren't void, even if one party is a minor, so long as that minor enjoyed the benefits of the contract. Unfortunately, the judge in the case has decided that he will not dismiss and will allow this lawsuit to move forward.

“As detailed in plaintiff’s response memorandum, defendant has not shown that the complaint fails to allege sufficient facts to state a claim for relief that is plausible on its face,”“[T]herefore, in the light most favorable to the plaintiff, plaintiff has stated a plausible claim, and the motion to dismiss must be denied.”
Now, in fairness to the judge, the court is required to adjudicate motions to dismiss with an eye towards favoring the plaintiff. Frankly, it was somewhat of a commitment to fairness that the court even allowed the mother's letter to serve as a motion to dismiss in the first place. On the other hand, it's useful to frame this ruling as one that comes from a judge steeped in the law, favoring a large company with a legal team likewise steeped in legal knowledge, and against the mother of a fourteen year old who cheated in an online game. When seen in that light, this whole thing is plainly ridiculous.And dangerous, too, particularly as part of a trend in gaming companies misusing copyright law in this way to go after cheaters in online games. Yes, those cheaters are annoying. Yes, this teenager appeared to be a fairly bad actor. And, yes, EPIC has gone out of its way to suggest it wouldn't be trying to bankrupt this family and mostly just wants the cheating to cease. All of that can be true while it also being true that abusing copyright law in this way is both bad and opening a litigious door that we should want to remain shut.

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If You Value The Reputation Of Your Restaurant, Maybe You Should Stop Serving Cops

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Cops lie. This is a fact. As a business owner, it is in your best interest to oust known liars from your premises, if only for liability reasons. Sure, this will result in backlash from cop supporters, but so will the alternative.Cops have placed themselves on a plateau of humanity far above their fellow citizens. Any perceived slight becomes a reason to drape themselves in an appropriated American flag and decry the masses for failing to show them the respect they feel they have no duty to earn.There have been several reports of low-wage fast food employees saying and/or doing mean things to cops in their restaurants. Sometimes, these things have actually happened. What officers fail to understand is that most employees of restaurants have zero respect for a majority of their customers. Add a blue uniform and an air of sanctimoniousness, and cops can easily fly up the ranks of the disrespected.But cops don't help their own case by lying about things that happened. And even if they're not outright lies, they're severe miscontruals of the actual events. In April of 2016, an officer claimed he was drugged by a Subway employee who supposedly spiked his soda as he went through the drive-thru. Drug tests of the drink and the cop cleared Subway and its employee of any wrongdoing. It also netted the accused teen -- who was arrested and charged -- a $50,000 payout from the city of Layton, Utah.Roughly a year after that, a Raleigh (NC) police union's Facebook post -- accusing a local restaurant of serenading officers with N.W.A.'s "Fuck tha Police" -- went viral. A review of the restaurant's CCTV footage showed this never happened. An employee apparently mouthed the words at an officer from 25 feet away. That employee quit when the investigation began. The backlash only halted when the police department itself stepped up to say the union's post was full of shit.

Raleigh Police Department Chief Cassandra Deck-Brown [...] released a statement Wednesday concurring with the owner, David Harris, and his attorney Mark O’Mara.[...]On Wednesday, Deck-Brown said two officers saw one employee make eye contact with them and mouth the words “F--- the Police.”“There was no singing. There were no other employees involved,” Deck-Brown said. “Because of the subtle nature of this act, it was not witnessed by anyone else in the store.”After looking at video, Harris and O’Mara and others could find no evidence that employees were singing at the police or even speaking with them during the nearly half-hour they were in the restaurant.
The restaurant suffered severe reputational damage. Meanwhile, the police union refused to apologize for the lies it had posted to Facebook. The restaurant may have been cleared by the Chief of Police, but the union representing the lying cops who had fabricated a story about a cop-hating restaurant downplayed its own involvement in this debacle, stating only that not "all" of the info in its original post had been "accurate."Now, there's this: a police officer who's apparently never consumed any spices and/or a burger grilled on a grill raised social media hell because he thought some cop-hating fast food worker screwed with his food.
A police officer's complaint that a fast food burger he ordered came sprinkled with dirt created a flame-broiled Facebook sensation Wednesday before an investigation found that a seasoning mix was the likely culprit.Fort Myers police Officer Tim McCormick posted on Facebook about a meal he was recently served at the Burger King on Cleveland Avenue at Winkler Avenue. He said that the burger looked like it had dirt on it but didn't notice it until he was down to the last bite. He then tossed the sandwich.
18,000 Facebook shares later, Officer McCormick has deleted his post. But he has yet to offer his apology for being unable to identify substances present on almost all Burger King burgers.Given the damage officers can do when they act before all the facts are in, why would any restaurant want their business? When officers are fabricating stories and misidentifying rare substances like, um... black pepper, why would any business owner want to serve such supremely risky customers?Sure, not every cop is going to lodge a bullshit complaint because he didn't like how a restaurant employee eyeballed him during service, but why roll the dice? Officers and their unions can do an incredible amount of damage to small businesses in a short period of time. When the facts do come out, they simply delete posts and walk away from wreckage they've left behind without so much as an apology. And if they do find themselves on the receiving end of a lawsuit for their actions, it's the taxpayers left footing the bill -- a group of unwilling lenders that includes the same small business owners victimized by the officers' lies and exaggerations.Play it safe, restaurant owners. Invite officers to start making their own meals at home where the only parties likely to receive collateral damage for food and service-based complaints will be officers' spouses and children. It just makes financial sense.

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Shipyard Brewing Loses Its Lawsuit Over Ships and The Word 'Head'

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Roughly a year ago, Shipyard Brewing Co. launched its bid for title holder of the single dumbest trademark lawsuit in the beer industry. The lawsuit against Logboat Brewing came as a result of two concerns. First, both breweries have the word "ship" on some packaging and include images of ships on that packaging as well. Lost on Shipyard appeared to be Logboat's use on its Shiphead brand was that of a woman with hair that somehow was a ship, whereas Shipyard merely had ships in water. That made the trade dress and trademarks fairly distinct. That may be the reason Shipyard coupled that concern with a second, namely that both breweries used the word "head" in their respective brands, with Shipyard having trademarks on brews such as "pumpkinhead" and "applehead." The theory, I guess, was that these two factors that on their own were not valid trademark complaints combined to form one that was.This is where the narrator would jump in and say: "That theory was wrong." The judge presiding over the dispute didn't buy into Shipyard's claims and completely rejected Shipyard's claims in a very thorough ruling. Let's start with the trade dress issue. Do you think these cans look similar?

The answer is "of course not" and that's exactly what the ruling says:
In fact, the cans look very different from each other. Shipyard's can is beige with a redbar at the top and bottom. Logboat's can is white, with a black band towards the top and towardsthe bottom. SHIPYARD appears in an arc of blue letters of fairly uniform size, in a clean,straight font, outlined in white with a dark shadow. SHIPHEAD appears in wavy black lettersoutlined in white, with the first and last letters significantly larger than the rest, and the last threeletters in the words SHIP and HEAD sloping downward in keeping with the triangular spacebetween the sails of the pictured hairdo. The S in Shiphead has the tail of a marine animal. Prominent on the Shipyard can is an image of a ship in water. Prominent on Logboat's can is animage of a woman carrying three cans of beer in one hand, with fish to one side, and with herdark hair styled in the form of a ship. No reasonable person viewing either can could confuseone for the other.
Okay, okay, but Shiphead said it's not just about the trade dress of the design, but also the names! The names are so similar, no? No.
Shipyard argues that its SHIPYARD mark and Logboat's SHIPHEAD GINGERWHEAT mark look and sound alike because they share six out of eight letters. But noreasonable juror could conclude that the terms yard and head independently are similar inlook or sound, outside of the negligible fact that they both end with the letter d. The only realsimilarity between SHIPYARD and SHIPHEAD GINGER WHEAT is the term ship, andShipyard has admitted that ship is a generic term, not subject to trademark protection....Shipyard refers to a place where ships were built and repaired, a physical space. Theterm has been used in the English language since at least 1647. See Merriam-Websterdictionary, https://www.merriam-webster.com/dictionary/shipyard (last accessed April 26,2018). The term Shiphead, on the other hand, is not part of the English language. SeeMerriam-Webster dictionary, https://www.merriam-webster.com/dictionarysShiphead. The termwas invented by an artist, a friend of the Logboat founders, to describe a fanciful vision of awoman with hair coiffed in the shape of a ship.
You know you're in trouble when the judge is mocking your claims by breaking out the non-existent Merriam-Webster's definition of a word you claim infringes on your trademark.Judge Nanette K. Laughrey went on to note that the beers are primarily sold in completely different markets and there's little evidence of competition (or even that Logboat had ever heard of Shipyard beer). The ruling is filled with various quips that suggests Judge Laughrey is perplexed as to how anyone could have though this was a worthwhile lawsuit to file. It dismantles Shipyard's argument piece by piece. For example, Shipyard claimed that there was a likelihood of confusion because of the "public recognition and renown" of its brand, and the Judge basically snorts "what renown?" and points out that the company failed to present any such evidence:
Shipyard submitsdeposition testimony indicating that it has expended more than $1 million in advertising inyears past. ... However, Shipyard claims to have been usingthe SHIPYARD mark since 1992.... Yet, Shipyard does not direct the Court to any evidence indicating when, during the26 years it purports to have been doing business, it spent dollars on advertising....Nor does Shipyard explain what the nature of the advertising was, or where it was directed.There is no evidence in the record indicating that Shipyard directed any advertising efforts atMissouri consumers.
Not enough? If the beer is so renown in Missouri (where Logboat sells its beer), surely there must be lots of sales there? Except... no.
Yet, although Shipyardinitiated this action in May 2017, Shipyard has supplied evidence of sales from only 2016 and2017.... (Shipyard has sold thousands of cases of beer in Missouri.)(... which state that Shipyard sold 1,247 cases of beer in Missouri in 2016,and fewer than 1,000 cases of beer in Missouri in 2017); ...(ZEROREZ's market share has increased from 3% in 2006 to roughly 20% at the time theComplaint was filed.). Thus, even assuming that Shipyard made all of the referenced 2017sales before it brought this action, the record at best shows that Shipyard has sold fewer than2,250 cases of beer in Missouri. Shipyard has not provided any evidence suggesting that this is asizable number. Furthermore, Shipyard has supplied no evidence of sales from outside ofMissouri.
Yes, that's the judge mocking the size of Shipyard's Missouri sales.Shipyard's attempt to claim that the smoking gun was the fact that Logboat briefly called the yard in front of its taproom "The Shipyard" also gets a pretty decent benchslapping:
The fact that, by July 2015 (when Shipyard apprised Logboat of its infringementsuspicions), Logboat was referring to the grassy area in front of its taproom as The Shipyard,and the fact that the founders thought the name fit with the theme of [their] brewery does notamount to evidence of intent to confuse customers looking to purchase SHIPYARD beer. Thefact that, for a limited time, a grassy area in front of the taproom was described as a yard isunremarkable, and the fact that a brewery named Logboat called an adjacent patch of grass theShipyard is not evidencedirect or indirectof intent to confuse customers of Shipyard beerinto purchasing Logboat beer instead. Indeed, Logboat had ceased describing the yard as theShipyard by January 2016, and thereafter called it The Park insteadwhich evidences adesire to avoid confusion. As discussed above, shipyard is a word in the English language,and the use of the term in reference to a space adjacent to a taproom, rather than in relation toany product purportedly competing with Shipyard, does not constitute even indirect evidence ofintent to confuse.
The Judge also points out that that Shipyard's claim isn't just silly, it's a massive overreach in an attempt to prevent Logboat from even experimenting with different flavored beers:
Finally, Shipyard's contention that Logboat's limited sales of Raspberry Shiphead GingerWheat beer and Jasmine Shiphead Ginger Wheat beer are in direct competition and overlapwith Shipyard's HEAD flavored beers, thereby knowingly expanding its use and intentionallyamplifying the likelihood of confusion, is unconvincing. Logboat did not co-opt Shipyard'sHEAD branding style. It did not call the beers Rasberryhead or Jasminehead. Instead,Logboat added a descriptive element to its own properly registered mark to reflect what Shipyarditself describes as a unique flavor profile . . . . . Accepting Shipyard's argumentwould require precluding Logboat either from adding any new flavors to its ginger wheat beer, orfrom accurately describing any new flavors it adds to its ginger wheat beer. In other words,Shipyard's proposed prohibition against adding any terms descriptive of flavor or aroma to theShiphead Ginger Wheat beer would prevent Logboat from experimenting and innovating withthe beer itselfan unreasonable and untenable result for an action to protect a trademark.
Somewhat strangely, the folks at Shipyard both haven't taken to the judge's lesson on trademark law and still seem to want to exert some control over Logboat's product packaging.
“We still feel it’s an infringement and the judge didn’t,” said Fred Forsley, the founder and president of Shipyard Brewing. He said he plans to call the owners of Longboat Brewing to see if the two companies can work out an arrangement to avoid any confusion in the future.
That sounds like activity that would have been appropriate a year and a half ago, before the lawsuit was ever filed. After all, there has been a longstanding tradition of congeniality within the craft brewing business. But after it attempted to bully them with a stupid trademark lawsuit, why in the world would Logboat bother returning Shipyard's calls?

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Progress Isn't Linear: YouTube TV's World Cup Flub Threatens Public's Trust For Sports Streaming

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As we've pointed out any number of times over the past few years, cord-cutting is a very real thing and represents a threat to the cable television industry as it exists today. One of the last threads from which that industry largely hangs is professional sports broadcasts, with cable network providers having traditionally locked up pro and college sports broadcast rights in long-term exclusive deals. That has slowly begun to change, as the leagues of the world have finally gotten on board with streaming providers big and small, connected to the cable industry or not. If this is adopted en masse, it puts disruptive change for cable on the horizon.But progress isn't linear and one of the threats to keeping this train on its tracks is the quality of the experience for users that dive into these sports streaming options. Especially early on in this kind of change, providers getting things right is extremely important, as reputations and public perception of the viability of sports streaming are more than somewhat on the line. And YouTube recently botched its broadcast of the World Cup match between England and Croatia.

In the middle of Wednesday's World Cup semifinal match between England and Croatia, YouTube's live TV service suffered an unfortunately-timed outage (not unlike ones we've seen from Sling or Hulu). Naturally, it enraged YouTube TV subscribers who had picked up the service specifically to catch live broadcasts like that game, and now it's offering an apology in the form of a credit.
There are several unfortunate factors at play for why this specific screw-up is worse for the reputation of sports streaming than it might have been otherwise. We can start with the most obvious factor: this is YouTube we're talking about. Look, there are plenty of good streaming service providers out there, but YouTube is the king of them, by reputation if not by fact. Having that name tied to this screw up is likely to register with the public as an indication that streaming for sports may not be ready for prime time.The second factor: this was the World Cup we're talking about. The popularity of this event, and its related viewership, is immense. The public knows that. Any streaming service for World Cup broadcasts has to know that its service is going to be heavily trafficked and ought to have its shit in order to accommodate the event's popularity. Heavy viewerships shouldn't be a surprise and, whatever the actual cause of YouTube's interruption, it will be assumed by most that viewership load played a factor.Now, as the post notes, streaming interruptions have happened before and they will happen again. Much of the reaction to what I outlined above will be at least in part unfair. But if you're rooting for sports streaming to erupt in popularity, or if you're a streaming provider trying to get more leagues on board, this kind of a screw up was about as bad in terms of timing as it gets.

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On Speech And Subpoenas, New York Giveth And Taketh (Now, The Bad News On Journalist Protection)

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Having just written about a good New York ruling concerning third-party subpoenas and the ability to protect free speech, now we have to write about some less good news: the recent decision by New York's highest court undermining the protection afforded by the state's shield law.Shield laws are critical to preserving a free and independent press because they enable journalists to resist testifying about the non-public aspects of their reporting, or having to turn over their notes and related work product. This ability to resist is what empowers them to promise anonymity to sources, which often can be the only way for news the public needs to know about to come to light. If journalists couldn't resist, or had to risk going to jail in order to try, it would inhibit their reporting and leave the public less able to learn about matters of public concern. Yet unfortunately this decision by the New York Court of Appeals invites just such a result by interfering with journalists' ability to avail themselves of the protection ostensibly afforded by the state shield law. (Note: New York confusingly labels its lowest court the Supreme Court. The highest court is instead known as the Court of Appeals. The Appellate Division is in the middle.)As frequently happens with tough cases involving important First Amendment interests, the underlying facts of this case are awful: Conrado Juarez has been charged with the gruesome 1991 murder of his four year-old niece. The case remained unsolved until DNA evidence made him a suspect. After fourteen hours of interrogation, he purportedly confessed. He now claims that the confession was coerced, and prosecutors want to use the notes and testimony of New York Times reporter Frances Robles, who had interviewed him, to challenge his claims. The trial court originally refused her motion to quash the subpoena demanding she provide the notes and testimony, but the Appellate Division overruled that decision and quashed it. Only now the Court of Appeals has overturned the Appellate Division's ruling, thus making the subpoena once again enforceable.In overturning the Appellate Division's decision the Court of Appeals found that the reporter had no right to appeal the original denial of her motion to quash the subpoena by the trial court. If she had no right to appeal the trial court's decision, then the Appellate Division had no ability to reverse it. [p. 2] But even if this Court of Appeals finding that she had no right of appeal were truly consistent with chapter and verse of New York appellate procedure (the dissent believes it isn't [Rivera dissent p. 8-9]), it's still a remarkably formalistic conclusion that gives short shrift to the significant substantive rights at stake.Formalism isn't of course inherently bad; careful adherence to procedural rules can sometimes help protect substantive rights better than ad hoc short cuts can. These rules exist in order to further the administration of justice, and the Court of Appeals itself fairly makes this point: by limiting the ability to appeal in criminal matters, it keeps the administration of justice from being bogged down unfairly through appellate gamesmanship. [p. 2]But justice isn't furthered by being a slave to interpretations of procedural rules so at odds with why we have the rules in the first place. Or, as in this case, so indifferent to the rights of those these rules were never intended to govern - namely, the third parties affected here and whose interests the Court of Appeals seems so hostile to [p. 4-5]. Or so arbitrary in their application and effect.That arbitrariness is well on display here. First, the no-appeal rule the Court cites only applies to criminal cases, not civil ones, [p. 2], which suggests that if this case had not involved a prosecution, the reporter apparently could still have appealed a lower court's refusal to quash a subpoena without problem. Next, the rule limiting appeals does not apply to subpoenas issued as part of investigations of criminal matters. [p. 3] So, if they hadn't already begun to prosecute the defendant, the reporter also likely could have appealed a refusal to quash a subpoena.In addition, if this case had originally broken the other way, and the trial court had originally quashed the subpoena, then per this rule, if applied consistently, it would have been the government who could not have been able to appeal that ruling. Obviously this particular result would be protective of journalists, but for the no-appeal rule to be applied this way it still makes journalists' protection entirely contingent on the judgment of trial courts. And that's a problem, because trial courts are not infallible. If they were, then there would be no need to have any appeals courts at all. We have these courts because sometimes lower courts get things wrong, as this one did here, and there needs to be some way to set things right when they do. But what the Court of Appeals is saying in this case is that when it comes to subpoenaing journalists (something that the NY legislature passed the shield law in order to prevent), if this subpoenaing happens as part of a criminal trial, then journalists will be entirely dependent on that trial court getting the decision whether to quash it perfectly correct in the first instance, because its decision on the matter will not be one that can ever be reviewed.For shield law protection to be meaningful it needs to have adequate rights of appeal baked into it, in all situations where journalists may need to assert it. True, in the context of criminal trials journalists might be able to recover the right to appeal as part of their challenge of a contempt order seeking to punish their refusal to comply with a subpoena. But if journalists are forced to risk jail to assert their shield law protection effectively, then the protection the shield law affords is hardly effective.The Court of Appeals seems to think that a legislative fix is the way to go to make it explicit that there is always a right of appeal. [p. 5] And there may also be the possibility of challenging a subpoena as part of an "Article 78" civil proceeding, although, as the dissent notes, forcing journalists to go this route does nothing to advance the speedy-trial interests the majority's "no appeal" rule is supposed to advance (nor is it clear that an Article 78 proceeding would necessarily be an effective option).

In any case, the alternatives available to a nonparty seeking some type of appellate review of the denial of a motion to quash will likely result in even greater delay of the criminal proceeding than would a direct appeal of a quashal motion. The two avenues left open to a nonparty to contest a denial would be a CPLR Article 78 action in the nature of prohibition or for the nonparty to simply fail to comply with the subpoena and seek appellate review of the subsequent order of contempt. In either case, if the prosecutor or defendant needed the nonparty's evidence, they would wait until the resolution of the collateral proceedings. [Rivera dissent p. 11]
But the problem is that journalists should not be in the situation where their right and ability to resist subpoenas the shield law is supposed to protect them from are so uncertain. In order to be consistent with the First Amendment and similar principles enshrined in the New York Constitution, principles that the shield law seeks to vindicate, the right to appeal any trial court denial should be implicit, since the effect of barring these appeals so significantly impinges on the free press the public needs.Sadly, however, this sort of decision - procedural formalism over the effective preservation of substantive speech rights - may be par for the course for the New York Court of Appeals these days. This case is not the first one where the Court of Appeals has reached a conclusion that puts substantive speech rights at risk because of the way it has limited the appellate rights of third parties. In fact, it justified this shield law decision by citing another case it decided last year where Facebook, as a third party, had tried to quash 381 Stored Communications Act "warrants" seeking information about its speakers. In that case, Facebook had been similarly denied a right to appeal the denial of its motion to quash, and for generally similar reasons as those cited in this case now.We've written before about troubling effects that arise when shield law jurisprudence collides with attempts by platforms to protect the anonymity of their users. The questions of whether journalists can resist subpoenas and whether platforms also can are separate and distinct, and, as such, are often best resolved according to separate and distinct reasoning. After all, the right to a free press and the right to speak anonymously often affect liberty interests in different ways. Plus, as we saw in the Glassdoor case, when both the district court and the Ninth Circuit unhelpfully conflated the two sets of questions and used the reasoning for journalist subpoenas to drive its analysis of platform subpoenas, it used the weak reasoning in the former context to undermine the constitutional protection of anonymous speech in the latter. And in this case now we see further problems with conflating these issues, only this time in reverse, with the earlier Facebook case about platform subpoenas and anonymous speech now negatively shaping this case about journalist subpoenas and the right to a free press.On the other hand, both anonymous speech and free press cases affect the interests of third parties and both vindicate important First Amendment rights upon which public discourse depends. Both therefore deserve to have had these critical rights treated with more care than the New York high court lately has afforded them.

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This Week In Techdirt History: June 8th - 14th

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Five Years AgoThis week in 2013, as dissection of the NSA leaks continued, we began to take a closer look at the secret FISA courts — which the DOJ didn't want anyone knowing about, even as a former FISC judge explained that he quit the court because it was out of control. We began to understand more about just how much the agency could learn from metadata, and saw the emergence of the silly argument that Facebook usage means people don't care about privacy. The NSA faced cultural backlash, with recruiters smacked down by university students and a disinvitation from the DEF CON conference. Then, the leaks revealed the NSA's cozy relationship with telcos and Microsoft — collaboration the agency cutely referred to as "team sports".Ten Years AgoThis week in 2008, it became more and more clear how the entertainment industry was trying to use ACTA to sneak through copyright extension, and we balked at the capitulation of some computer makers to the RIAA's demands by disabling sound recording capabilities. We saw a mixed ruling in a case over limitations on the DMCA's anti-circumvention clause, a ruling from a German court saying that open WiFi owners are not responsible for file sharing done by users, and a massive backlash against Sweden's internet spying bill.Fifteen Years AgoThis week in 2003, we saw an important ruling in favor of displaying thumbnails of copyrighted images. The RIAA launched an expected lawsuit against a Spanish site that claimed to offer legal downloads, a group of webcasters was threatening to sue the RIAA if they won't renegotiate royalty rates, and Kazaa failed with its wild swing at an antitrust lawsuit against the entertainment industry, while we took a look at the growing industry of folks getting rich by selling anti-filesharing services.

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Rogue CBP Agent Decided To 'Drain The Swamp' By Tracking Down A Journalist To Sniff Out Her Sources

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The DOJ has decided it can safely threaten First Amendment protections, so long as it's done in the pursuit of leakers. The Trump Administration has leaked like no other, prompting AG Jeff Sessions to triple-up on former president Obama's war on whistleblowers. Omelets/eggs broken, I suppose, if the end goal is dialing back leaks to only the ones the administration approves of.

It's cool to target journalists' communications again. That's the general mood of the DOJ, which slapped itself on the wrist during Eric Holder's tenure for hoovering up AP journalists' communications, only to reverse course when the desire to prosecute leakers surpassed its desire to not look like a thuggish force of government oppression.

The indictment of Senate Intelligence Committee advisor James Wolfe contained a lot of journalists' communications and metadata obtained from several sources, including service providers these journalists used. This was disturbing enough, suggesting the new normal for leak investigations is targeting members of the press to work backwards to their anonymous sources.

But there's even more shadiness going on than is observable from that single indictment. A self-appointed freedom fighter with the unbelievable last name of Rambo was apparently trying to suss out journalist Emily Watkins' sources. (Watkins' email and communications data were subpoenaed during the Wolfe investigation.) The first hints that something weird and disturbing was going on behind the scenes was published by The Washington Post. It detailed the apparently rogue (and illegal) actions of a government employee prior to the delivery of the Wolfe indictment.

The actions of a Customs and Border Protection agent who confronted a reporter covering national security issues about her confidential sources are being examined by the CBP’s Office of Professional Responsibility, the agency said in a statement Tuesday.

The agent, Jeffrey A. Rambo, contacted journalist Ali Watkins last June as the Trump administration was ramping up its investigations of unauthorized leaks to reporters, and he identified himself as a government agent.

Rambo met with Watkins at a restaurant in Washington after initially contacting her by email. A reporter taking such a meeting with a potential source would not be unusual.

But after he arrived, Rambo said the administration was eager to investigate journalists and learn the identity of their confidential sources to stanch leaks of classified information. He questioned Watkins broadly about her reporting and how she developed information, according to the people familiar with the incident, who spoke on the condition of anonymity to discuss a sensitive matter.

The "examination" is now an official investigation, the New York Times reports. More details about Rambo's actions have surfaced, suggesting flagrant abuse of sensitive government databases for the purpose of tracking down Watkins and pressuring her to divulge her sources.

The agent, Jeffrey A. Rambo, who usually worked in the San Diego area, was temporarily assigned at the time to the National Targeting Center, a facility in Sterling, Va., operated by Customs and Border Protection that stores data on the travel of millions of Americans and foreigners. Such information is supposed to be used only under strict rules by immigration and law enforcement officials.

Now the Department of Homeland Security’s inspector general and investigators from the border agency are examining whether Mr. Rambo used the travel data improperly or illegally and whether anyone else was involved.

It doesn't appear anyone directed Rambo to meet with Watkins and attempt to discover the identities of her sources. From the statements given to the New York Times, it appears Rambo was simply a self-starter bursting with misdirected gumption.

It remains unclear whether Mr. Rambo handled or heard about an official F.B.I. request to the center for Mr. Wolfe’s travel records, and, if so, whether that led to the discovery that Ms. Watkins was his traveling companion. According to Ms. Watkins’s accounts, Mr. Rambo spoke with enthusiasm to her about Mr. Trump’s crackdown on leaks, telling her that “we’re finally going to be able to drain the swamp,” raising the possibility that he had searched the database for her records on his own initiative.

It really doesn't matter whether Rambo felt draining the swamp was his own personal mission or someone on the inside suggested he check the situation out. Either way, it's an abuse of Rambo's position and access. The DOJ started screwing the pooch with its demand for journalists' records and communications and Rambo came along to botch the job and clumsily bury the canine after performing a hit-and-run on his own career. This is scary stuff and it's not being helped by the anti-journalist attitude being fostered by the man at the top of the governmental food chain.

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Guy Gets Tossed In Jail For Contempt Charges Because Cops Say They Need To Unlock His Phones To Get Evidence Of Drug Possession

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There's a Fifth Amendment case developing in Tampa, Florida revolving around cellphones, passcodes, and contempt charges. (h/t Dissent Doe)William Montanez has just been jailed for 180 by a Florida judge for refusing to unlock two phones seized from him by police. This happened in an extremely unorthodox fashion. In court, the judge said "Unlock them," and Montanez was handed both phones. He claimed he couldn't remember the passcodes, saying they both had been recently purchased. No passcode, no freedom, the judge instantly ruled.The police have a warrant and claim that's all they need to demand access to the phones' contents. But that's predicated on a string of events that seem constitutionally-dubious, to say the least.An emergency petition [PDF] (via Florida You Judge) to challenge the judge's contempt ruling (and the warrant itself) has been filed by Montanez's attorney, Patrick Leduc. The petition details the traffic stop and arrest of Montanez, which appears to contain a handful of constitutional violations.Montanez was pulled over for failure to yield. During this stop, a K-9 unit was brought to the scene to sniff Montanez's car after he refused to consent to a search. This is already questionable. The Supreme Court's ruling in Rodriguez makes it clear regular traffic stops aren't supposed to be fishing expeditions. If no reasonable suspicion presents itself (and refusing consent isn't suspicious activity), officers aren't allowed to extend stops to further badger drivers into relinquishing consent or bring a dog to scene to ask its permission for a search.At this point, it's unknown how much time elapsed between the initiation of the traffic stop and the drug dog's arrival. All that's clear from the petition is that the dog wasn't there when the traffic stop began. Whatever the case, Montanez was never issued a citation for the infraction supposedly triggering the stop.After the dog told the cops it was ok to perform a warrantless search, officers found a misdemeanor amount of marijuana, supposed THC oil (tested only with a drug field test, so…), and a handgun. The passenger of the car was a felon, so it was illegal for him to have it. The same can't be said for Montanez. Again, this may have been mooted by Montanez's mother claiming to own the handgun -- something the state has yet to disprove or even offer an opinion about.Montanez did claim possession of the marijuana and alleged byproducts. Open-shut misdemeanor offense… except that officers seized his two cellphones and obtained a search warrant for them. This was predicated on one thing: a text message saying "omg did they find it" being received on one of the cellphones during the traffic stop.Whatever "it" is, the officers appear to have found it. Since all the evidence needed to support the misdemeanor possession charges was already in the hands of law enforcement, why the compelling need to search the seized phones? According to the search warrant affidavit [PDF], the phones will apparently contain evidence of the crimes Montanez is charged with, which would seemingly be entirely supported by the marijuana and (alleged) THC oil already in their possession.

[T]here is now being stored on said Cellular iPhone certain evidence, to-wit: images, text messages, files, telephone numbers, call logs, graphic files, digital media and/or digital files, and any other media that can store digital files and/or digital media. Phone records, records of Internet Service Providers, E-mails and other electronic data, including but not limited to passwords telephone numbers, Emails, Instant messages or text message storage, computer images, computer programs and system documentation; documents files or any other computer data relating to passwords.Which can provide evidentiary value in proving a violation of the Laws of the State of Florida, to-wit:
the Laws prohibiting: Possession of Cannabis Less Than 20 grams, Possession of Drug Paraphernalia and Possession of a Firearm During the Commission of a Felony
The felony listed here would be carrying the possession of a firearm by a felon. The only felon in the vehicle was the passenger, but it looks like prosecutors want to hang this on Montanez, despite the only other possible felony available being drug trafficking -- and the evidence on hand simply doesn't support that charge.In any event, there's zero chance Montanez's phones will carry additional evidence of the charged criminal acts, which are all predicated on evidence the police have already obtained. The warrant appears to be a fishing expedition to try to prove Montanez is actually a drug dealer so the felony charge sticks. The two misdemeanor charges already have all the evidence prosecutors need, so police are pressing forward with zero probable cause to nail Montanez with a felony. The problem is, the probable cause has to come before the search, not after it, and that's why his lawyer is challenging the warrant.The prosecution's request for contempt of court charges cites another state case as support for compelled passcode production. But the case cited here couldn't be more different than this one. While it does deal with compelled password production and contempt charges, it also deals with charges of voyeurism and an unchallenged warrant.First off, there's a significantly better chance evidence of voyeurism might be contained in a seized cellphone. Second, the warrant in this case is being challenged, which makes it an entirely different judicial animal than the case cited.As it stands now, Montanez is going to spend six months in jail for preventing police from rooting around in seized cellphones for evidence they don't need and which would likely be highly irrelevant to these criminal proceedings. The police can't show probable cause for this search because none exists. And yet, the judge trying the case demanded Montanez unlock the phones in court and when he failed to do so (Montanez claimed he could not remember the passcodes), the judge tossed him in jail to, I guess, jog his memory.This case stinks all over. Nothing should move forward until the cops give a better accounting of their actions during the stop and come up with something better than "we just really want to look at his phones" under the heading "input probable cause." But chances are this will all end in Montanez spending an indefinite amount of time in jail without ever having been convicted of a crime.

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How A US Burger Chain Brought 'Ruby Tuesday' Full Circle Through Trademark Bullying

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Circles are so zen. So jedi. So the force. "The circle is now complete," Darth Vader says in A New Hope. Well, it turns out that the universe has a way of pulling this sort of dynamic out of the realm of the mystical and into the far more mundane realm of trademark bullying. You may be aware of the American burger chain Ruby Tuesday. The chain has locations all over the United States and internationally. Notably, the company's website lists no locations in Australia. This is notable because the American chain has for some reason decided to try to bully an Australian rock band, Ruby Tuesdays, into changing its name over trademark concerns.

Ruby Tuesday the restaurant has served Ruby Tuesdays the band with a letter outlining their intent to sue. It reads: “While many artists pay tribute to other artists through imitation, when it comes to imitating famous trademarks, only Ruby Tuesday is entitled to the goodwill of its mark.”The letter continues: “In fact, the knowing adoption of a mark intending to play off a well-established mark is among the most egregious of trademark violations, warranting courts to apply the harshest of consequences.”The corporation has demanded that the group change its name, close down its website, destroy all of its merch and pass on all of its profits as compensation.
So, a number of things should be immediately obvious here. First, these two organizations are not remotely in the same marketplace. Burgers and music acts offer no avenue for public confusion as to what the source of the prodct is. Second, for that and a myriad of other reasons, there is no potential for confusion here. The entire point of trademark law is to keep consumers informed as to the source and affiliations of a product. That is simply not in issue here. All of that is particularly so when you consider that Ruby Tuesday does not have any storefront locations in the entire country in which the band exists. We can just add here for context that this is a penniless hobby band that has very little notoriety, even in Australia.But back to the concept of this representing a circle. Our younger readers may not realize this, but the Ruby Tuesday restaurant chain has an ironic source for its name.
The restaurant's name was derived from The Rolling Stones song, "Ruby Tuesday", which was popular during the time of the first restaurant's inception. The name was suggested to founder Sandy Beall by Bob Hope.
"The circle is now complete." Yes, the restaurant yoinked the title of one of the most popular songs from one of the most popular rock bands ever for its name in the 1960s and then turned around and attempted to bully a little-known rock band out of that same name in the present. I'll give Ruby Tuesday credit here for the pure audacious irony of its tone-deaf attempt at legal asshatery.Zero credit is awarded, however, for having anything resembling a valid trademark claim.

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State Appeals Court Tosses Defamation Suit Against Lawyer Who Wrote About Teen Driver Who Injured His Client

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An interesting sidebar to a case we've written about previously has surfaced via the ever-attentive Eric Goldman. Last month we covered a lawsuit against Snapchat brought by the victims of an car accident. The victims claim Snapchat is at least partially responsible for the injuries inflicted on Karen Maynard. The driver of the other vehicle, Christal McGee, was allegedly driving at over 100 mph when she hit Maynard's vehicle. The suit also alleged -- based on passenger statements, accident reconstruction, and police reports -- McGee was using Snapchat's "Speed" filter when the accident occurred.The Georgia state appeals court allowed the case to proceed, but not on Section 230 grounds. It was remanded to the lower court to allow for more exploration of the issues at hand, noting that Section 230 likely does not apply to software created by Snapchat itself. Of course, dismissal may still be the outcome as it's going to be tough to prove Snapchat's creation of a filter was either negligence or contributory to the accident caused by McGee's unsafe driving.The sidebar is this: Christal McGee has racked up a loss in Georgia Appeals Court in a case tied to the accident she caused. McGee sued Michael Neff -- the Maynards' legal rep in the lawsuit against Snapchat -- for defamation. According to McGee, Neff's blog post detailing the Snapchat lawsuit was defamatory. The lower court allowed the case to proceed, slapping aside Neff's anti-SLAPP motion.The appeals court, however, finds [PDF] there was no defamation and certainly nothing written with actual malice. (Emphasis in the original.)

Neff argues that he acted in good faith at the time he published the article to his law firm’s website because he relied upon the police report, the report from the accident reconstructionist and the verified affidavit of Heather McCarty. This evidence was known to Neff prior to the publication of his article on April 26, 2016. In its ruling that “[t]here is evidence from which a jury could find that some of [the statements in the article] were false,” the trial court cited to affidavits signed after the publication of the article. This, and other evidence cited to by McGee that was not known to Neff until after the publication of the article, do not factor into his good faith at the time of publication.
McGee argued Neff's statements were malicious because the affidavits he used to write his article weren't signed at the point the post went live. The appeals court finds this does not make his use of the affidavits' contents malicious, especially since some of this testimony was already included in available police reports.
The only other evidence Neff had at the time he published his article were statements obtained by the police from the other passengers in McGee’s car. The statements in the police report by two of the passengers in McGee’s car did not deny McGee’s use of Snapchat. One of these statements was silent as to McGee’s speed, and the other stated that she had been traveling at 60-65 m.p.h. A third statement, by Heather McCarty, was signed and stated that McGee was going “a little over 110 m.p.h.” at the time of the accident.
The statements made by Neff about teens' use of Snapchat while driving (and, in particular, McGee's alleged use of Snapchat) were supported by outside statements. The lower court should not have declared these blog post assertions should be subjected to additional courtroom scrutiny before allowing a motion to dismiss.The court also notes the content of the blog post was of public interest. It dealt with teen driving, Snapchat use while driving, a just-filed lawsuit against the company, and, generally, the dangers of distracted driving. The mention of McGee's alleged careless driving was relevant to the lawsuit and the issues at hand. There was nothing defamatory about Neff's public discussion of these allegation, especially when supported by passenger statements to police and as-yet-unsigned affidavits.Adding it all up, the appeals court says there's no way McGee is likely to prevail on the merits of her allegations. The lawsuit is dismissed under Georgia's anti-SLAPP law, which means McGee will now likely to be on the hook for Neff's legal costs.

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European Parliament Turns Up The Pressure On US-EU Privacy Shield Data Transfer Deal A Little More

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Many stories on Techdirt seem to grind on forever, with new twists and turns constantly appearing, including unexpected developments -- or small, incremental changes. The transatlantic data transfer saga has seen a bit of both. Back in 2015, the EU's top court ruled that the existing legal framework for moving data across the Atlantic, Safe Harbor, was "invalid". That sounds mild, but it isn't. Safe Harbor was necessary in order for data transfers across the Atlantic to comply with EU data protection laws. A declaration that it was "invalid" meant that it could no longer be used to provide legal cover for huge numbers of commercial data flows that keep the Internet and e-commerce ticking over. The solution was to come up with a replacement, Privacy Shield, that supposedly addressed the shortcomings cited by the EU court.The problem is that a growing number of influential voices don't believe that Privacy Shield does, in fact, solve the problems of the Safe Harbor deal. For example, in March last year, two leading civil liberties groups -- the American Civil Liberties Union and Human Rights Watch -- sent a joint letter to the EU's Commissioner for Justice, Consumers and Gender Equality, and other leading members of the European Commission and Parliament, urging the EU to re-examine the Privacy Shield agreement. In December, an obscure but influential advisory group of EU data protection officials asked the US to fix problems of Privacy Shield or expect the EU's top court to be asked to rule on its validity. In April of this year, the Irish High Court made just such a referral as a result of a complaint by the Austrian privacy expert Max Schrems. Since he was instrumental in getting Safe Harbor struck down, that's not something to be taken lightly.Lastly, one of the European Parliament's powerful committees, which helps determine policy related to civil liberties, added its voice to the discussion. It called on the European Commission to suspend the Privacy Shield agreement unless the US fixed the problems that the committee discerned in its current implementation. At that point, it was just a committee making the call. However, in a recent plenary session, the European Parliament itself voted to back the idea, and by a healthy margin:

MEPs call on the EU Commission to suspend the EU-US Privacy Shield as it fails to provide enough data protection for EU citizens.The data exchange deal should be suspended unless the US complies with EU data protection rules by 1 September 2018, say MEPs in a resolution passed on Thursday by 303 votes to 223, with 29 abstentions. MEPs add that the deal should remain suspended until the US authorities comply with its terms in full.
It's important to note that this vote is largely symbolic: if the US refuses to improve the data protection of EU citizens, there's nothing to force the European Commission to comply with the demand of the European Parliament. That said, the call by arguably the most democratic part of the EU -- MEPs are directly elected by European citizens -- piles more pressure on the European Commission, which is appointed by EU governments, not elected. If nothing else, this latest move adds to the general impression that Privacy Shield is not likely to survive in its present form much longer.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Latest Denuvo Version Cracked Again By One Solo Hacker On A Personal Mission

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Denuvo is... look, just go read this trove of backlinks, because I've written far too many of these intros to be able to come up with one that is even remotely original. Rather than plagiarize myself, let me just assume that most of you know that Denuvo is a DRM that was once thought to be invincible but has since been broken in every iteration developed, with cracking times often now down to days and hours rather than weeks or months. Key in this post is that much if not most of the work cracking Denuvo has been done by a single person going by the handle Voksi. Voksi is notable not only for their nearly singlehandedly torpedoing the once-daunting Denuvo DRM, but also for their devotion to the gaming industry and developers that do things the right way, even going so far as to help them succeed.Well, Voksi is back in the news again, having once again defeated the latest build of Denuvo DRM.

This week, Voksi announced the passing of yet another milestone, one that’s bound to disappoint the people at Denuvo. After sinking endless hours into what he openly admits is a personal grudge against the company’s technology, Voksi revealed that its latest v4.9++ protection had fallen. Speaking with TorrentFreak, Voksi says that after tackling previous versions, a little while back he began dissecting the newer 4.7/4.8 builds (not official Denuvo versions but a numbering system used by the cracking scene).“Man, it seemed impossible back then. The obfuscation was insane, I had no idea what to do. So, over the next two months, with little breaks from time to time, I was analyzing exactly how [Denuvo] does those hardware checks,” he notes. “Then I tried my tricks for 4.7 on 4.8, but something wasn’t quite right. It was way more obfusticated and had some strange patterns and I couldn’t figure out why it was like that. Soon enough though in June things started to change.”
Now, while we generally dislike DRM here at Techdirt, we're not in the business of cheering on a crack-artist defeating any particular DRM. What is right in our wheelhouse, however, is discussing the overall impact of DRM and its effectiveness. We've spent hundreds of words already pointing out that this is an arms race every DRM maker loses, with Denuvo in particular falling at a rapid pace. With that in mind, we've wondered aloud why game companies even bother with any of this DRM nonsense, when they instead could be connecting with their customers and giving them real reasons to buy with innovative business models and engagement.But this point must be most evident when it's noted that Voksi, a single individual, has nearly brought Denuvo to its knees as some insane sort of solo project.
What comes next for 21-year-old Voksi remains to be seen but given his determination, other games are probably being worked on right how. He says that several other titles use 4.9 or 4.9++ protection so it’s possible he’ll have more surprises in the days and weeks to come.“In the end, it might take some more testing and test cracks, but I’m very happy to announce that I won’t stop until we are Denuvo Cancer Free from all games,” he concludes.
Whatever you might think of Voksi as an individual or DRM and game-cracking in general, what should be immediately apparent is that relying on DRM that is vulnerable to one 21 year old with enough motivation to kill it over and over again is a fairly shitty business practice in which to be engaged. And, yet, game companies still work with Denuvo and other DRM makers for reasons I cannot possibly fathom.When one person negates that work, it's probably time to come up with a new plan.

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ESPN Latest To Nix User Comments, Abdicate Its Responsibility For Fostering A Good Community

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Readers of this site will be aware of the trend over the past several years for news and media sites across the internet deciding to nix their respective comments sections. This wave of muzzles on the communities that previously participated in these sites has come with a variety of reasons or excuses, depending on your perspective. Some sites have noted that comments sections devolve into the worst humanity has to offer, with vile speech and spam-bots sucking up all of the digital oxygen. Other sites have suggested that some sort of liability comes along with any proper moderation of their comments sections. Still others have pointed towards social media platforms that can better take over the duties as some sort of 3rd party community gathering place, be it on Facebook or Twitter. All of these reasons are silly and false, or they simply abdicate the site's responsibility for fostering a well-functioning community of commenters. Here at Techdirt, we love our own community and value the ever-living hell out of our comments, be they supporters of our positions or well-meaning dissenters. Trolls come along for the ride, of course, but we trust our own community to act as a moderating force against them.And, yet, the trend continues. The latest site to shutter its comment section is ESPN, to much unfortunate fanfare at Deadspin.

No longer will you be able to read an ESPN.com article and then underneath receive the dumbest possible reactions to it. The Worldwide Leader has phased out its Facebook-hybrid comment sections, as confirmed by a company spokesperson this week. None of the keyboard mashing will be archived—they will be lost in time, like tears in rain.Here's the official statement:"Fans currently have more touchpoints than ever to voice their comments. We value their opinions, and feel that we are better able to serve them through our customer care team and our social platforms. In fact, we have and are continuing to create content for social that embraces these conversations and interacts with fans."This is an abomination. Chintzy Instagram memes are no substitute for jokes that were plagiarized from somewhere else, or completely indecipherable opinions on Colin Kaepernick.
Readers at Deadspin will recognize this as classic Deadspin snark. The site's writers, despite having its own vibrant commenting community, have always taken a dim view of user contributions to the discussion. Somewhat amazingly, Deadspin in particular has a fairly good commenting community of its own, only deepening the mystery for the stance it takes here.Well, perhaps not so mysterious. Simplistic might be the better word. Deadspin's objections, and likely ESPN's reasoning as well, is that ESPN comment sections tend to be the very kind of vile, idiotic contributions that we discussed in the intro. Deadspin, and likely ESPN, seem to stop the thought process right after making that determination and use it as its reason to muzzle the ESPN community entirely. What's lost in that kind of thinking is that the onus for fostering a good commenting community at ESPN is on... ESPN.It's always been this way. There is so much benefit to be derived from a vibrant comments section, from increased reader engagement, to diverse thoughts that can shape discussion and the future work of the writers of posts, to a treasure trove of useful information and tips that journalists and commentators ought to be salivating over. The real story here is that ESPN has decided to toss all of those benefits out the window because it doesn't want to do any heavy-lifting to create a comments section that produces that kind of benefit.It's the easy way out and no amount of snark or accurate portrayal of the current comments section as a cesspool will change that. Sites, if your comment section sucks, it's your fault. Taking your ball and going home, even if you're ESPN, is not the best option. It's not even a good option.

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posted at: 12:16am on 11-Jul-2018
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Fake News Is A Meaningless Term, And Our Obsession Over It Continues To Harm Actual News

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Many people forget now, but in the wake of the 2016 election, it was mainly those opposed to Donald Trump who were screaming about "fake news." They wanted an explanation for what they believed was impossible -- and one thing that many, especially in the journalism field focused on, were the made up stories that got shared wildly on Facebook. At the time, we warned that nothing good would come from so many people blaming "fake news" for the election, and I think it's fair to say we were correct on that. President Trump quickly co-opted the phrase and turned it into a mantra directed at any news story about him or his administration that he didn't like.And, of course, the term was always meaningless. It encompassed such a broad spectrum of things -- from completely made up stories, to stories with bad sourcing or an error, to stories that were spun in a way people didn't like or found misleading, to stories with a minor mistake, to just stories someone didn't like. But each of those is very, very different, and the way that different news organizations respond to these issues can be very different as well. For example, professional publications that make mistakes will publish corrections when they discover they've made an error. Sometimes they don't do so well, and they don't always do a very good job of publicizing the correction -- but they do strive to get things right. That's different than publications that simply put up purely fake stuff, just for the hell of it. And there really aren't that many such sites. But by lumping them all in as fake news, people start to blur the distinctions, and think that basically everyone is just making shit up all the time.That culminates in a new report claiming (though I question the methodology on this...) that 72% of Americans surveyed believe that traditional news sources "report news they know to be fake, false, or purposely misleading." The breakdown by political affiliation is that 53% of Democrats think this happens "a lot" or "sometimes," 79% of Independents, and 92% of Republicans. Of course, if you dug into the numbers, I'm guessing that the Democrats would point to Fox News as their proof, while the Republicans would point to MSNBC, CNN and maybe the NY Times/Washington Post.Of course, most of this is silly. Some of it is the fact that the vast majority of news consumers don't know the difference between the hard news divisions of these news organizations and the "commentary" side of these organizations, with the latter being more in the entertainment, bomb throwing side of things, and who stake out ridiculous positions because that's what they're paid to do. The actual news orgs all do actually tend to want to do good reporting. They aren't always good at that -- in fact, they're often bad at it. But that's very, very different than deliberately spreading "fakes, false or purposely misleading" news.However, simply lumping mistakes or a spin you dislike on coverage as "fake news" doesn't help. It just makes things more ridiculous and gets people up in arms more. And, again, just as we predicted, with the push to clamp down on "fake news," the end result is actually suppressing news. Facebook -- which was the main target of the whining from the anti-Trump world on "fake news" -- basically threw up its hands and said it would decrease all the news that people saw. And that means that every publication that was heavily relying on Facebook for traffic (i.e., nearly every publications except for us at Techdirt who ignored Facebook), is now getting slammed.Slate tried to get news orgs to talk about how much their Facebook traffic dropped and no one would talk, so it revealed its own traffic decline from Facebook, dropping from 28 million clicks in January 2017 (about 1/3 of its total traffic) down to less than 4 million in May 2018 (now representing 11% of its traffic) -- a drop of 87%. The site claims Facebook traffic has dropped 55% alone in 2018. Again, we deliberately avoided "playing the Facebook game" over the last decade, so the site has never been a significant source of traffic. However, for comparison purposes, I checked, and Facebook represented 2.7% of our own traffic in January of 2017, and 2.4% of our traffic in May of 2018 -- basically no different, but also close to a rounding error.But really, what this comes down to is that the whole "fake news" claim has always been silly and the calls to "do something" about fake news have really only served to make things worse. Using such a non-descriptive term has given lots and lots of people an excuse to mock or ignore any news or news organizations they dislike. And it's given an excuse to Facebook to step back from the news business altogether. None of that makes the public better news consumers or more media literate. All it does is keep people in their silos getting angry at each other.

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Court Compares Car Crash Data To CSLI, Cellphone Contents; Tells Cops Best Bet Is To Always Get A Warrant

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The Supreme Court's ruling in the Carpenter case came as something of a surprise. The nation's courts seemed unwilling to start paring back the Third Party Doctrine, but the expansion of people's digital footprints following the widespread adoption of smartphones proved to be too big to ignore. The ruling was narrow -- finding only that the acquisition of historical cell site location info (CSLI) was a search under the Fourth Amendment -- but it possibly contains broader applications.The way it stands now, law enforcement needs a warrant to collect CSLI from cell service providers -- the first hole that's been poked in the Third Party Doctrine since its inception almost 40 years ago. If not for the Riley decision -- the one that recognized phones no longer resembled "containers" or "pockets," but rather contained a detailed depiction of a person's entire life -- the Supreme Court may not have arrived at this conclusion. But it was that decision that first conjured up the image of the government happily discovering people were carrying around personal tracking devices loaded with info 24 hours a day. Grabbing large quantities of CSLI -- 127 days in Carpenter's case -- turned cellphones into ad hoc ankle bracelets, allowing the government to reconstruct someone's movements over a period of months using only a subpoena.The lower courts are now starting to apply the Carpenter ruling as defendants use this decision to challenge evidence against them. In this case reviewed by the Georgia Court of Appeals, the warrantless acquisition didn't involve cell site location info, but rather a vehicle's black box. Here are the facts of the case, from the decision [PDF]:

On December 15, 2014, the vehicle driven by Victor Lamont Mobley collided with a vehicle driven by W. M. W. M. and the passenger in his vehicle, C. F., were killed in the collision. Mobley was charged with reckless driving, two counts of homicide by vehicle in the first degree (alleging that he caused the deaths of W. M. and C. F. through the act of reckless driving), and speeding (alleging that he drove a vehicle at a speed of 97 miles per hour in a 45-mile-per-hour zone). Mobley moved to suppress evidence that was obtained from the airbag control module (“ACM”) in the vehicle he was driving, which showed that the vehicle was traveling at a speed of 97 miles per hour five seconds before airbag deployment.
Inevitable discovery was the call, with the trial court finding the ACM would have been removed and its data accessed following the crash, so the one-day delay between the original access and the search warrant was negligible. The appeals court dives a little deeper into the issue, bringing along Carpenter for the ride, but not until the concurring opinion. It first takes a look at the implications of the Supreme Court's Riley decision on the warrantless access to otherwise "hidden" info.
Mobley [...] contends that we should follow the reasoning employed by a Florida appellate court, which held (in a divided opinion) that a search warrant was required to access ACM data in an impounded vehicle. The Worsham court found that ACMs “document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible ‘mechanical’ parts of a vehicle.” Citing Riley, supra and analogizing the ACM to a cell phone, the Worsham court reasoned that because the recorded data is not exposed to the public, and because the data is difficult to retrieve and interpret, there is a reasonable expectation of privacy in the data.
The court finds the access of ACM data does not approach the level of privacy intrusion warrantless access to cellphone's contents would. What a driver does on a public road is observable by others, even if not to the level of detail an ACM provides.
We find that, under the circumstances in this case, Mobley did not have a reasonable expectation of privacy in the data from his vehicle’s ACM. See generally Bowling, supra. While an outside observer cannot ascertain the information regarding the use and functioning of a vehicle with the same level of precision as that captured by the ACM, there are outward manifestations of the functioning of some of the vehicle’s systems when a vehicle is operated on public roads. For example, a member of the public can observe a vehicle’s approximate speed; observe whether a vehicle’s brakes are being employed by seeing the vehicle slow down or stop or the brake lights come on, by hearing the sounds of sudden braking; and observe whether the driver is wearing a seatbelt. There is no reasonable expectation of privacy in such information because an individual knowingly exposes such information to the public.[...]Information regarding the mechanical functioning of the vehicle and its systems is qualitatively different from photographs, financial information, and other such personal data that may be found on a cell phone.
The Carpenter connection would be long-term data collecting by the ACM, which would allow the government to reconstruct a person's movements over a long period of time. But, as far as the court can tell, most -- if not all -- ACMs only record pertinent info at the time the airbag deploys. It is not a tracking device, wittingly or unwittingly.The court signs off on its opinion by warning law enforcement that the best route is to always obtain a warrant, if possible.
We therefore limit our holding to the particular facts of this case, and note that future treatment of this issue will likewise depend on the specific facts of the cases under consideration. As such, we reiterate the strong preference for searches to be conducted pursuant to a warrant, see Jones v. State, 337 Ga. App. 545, 548 (1) (788 SE2d 132) (2016), and caution law enforcement officers faced with an investigative need to obtain data from a vehicle’s ACM to err on the side of caution by obtaining a search warrant before retrieving that information.
The concurring opinion notes a few things. First, some ACMs may collect more data than others, making these much more analogous to the CSLI obtained in the Carpenter case. That alone should prompt officers to seek a warrant before downloading the data -- especially when vehicles have been towed and held for a crash investigation. This removes any exigency and allows the search to continue on the court's time, rather than whenever officers feel like it.It also notes getting a warrant first would be the safer choice as the removal of the ACM may very well qualify as a government trespass onto private property. The automobile exception may excuse cursory searches and inventory of a car's contents if it removed from the scene of a stop, but it does not permit the government to obtain data from a vehicle's electronics.The opinion reiterates the warning handed out by the majority: Get a warrant.
[L]aw enforcement will find it increasingly tricky to navigate the crossroads of ever-advancing technology and personal privacy as they relate to Fourth Amendment prohibitions. And this difficulty is only exacerbated by the fact that the decisions of the Supreme Court of the United States establish that warrantless searches are typically unreasonable where “a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.” But as the Supreme Court emphasized once again in Carpenter v. United States, there remains a tried and true means of safely traversing these crossroads when law enforcement’s specific obligations under the Fourth Amendment are in doubt—get a warrant. This default position seems especially wise in light of the “equilibrium-adjustment” the Supreme Court of the United States recently made in Carpenter.
As for any arguments that new warrant requirements will harm law enforcement efficiency, the court waves them away by explaining the Fourth Amendment isn't supposed to make things easy for the government.
And while obtaining a warrant may not always lend itself to expediency, our republic’s Fourth Amendment jurisprudence has “historically recognized that the warrant requirement is ‘an important working part of our machinery of government,’ not merely an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.
It also notes that if anyone's losing the Tech Arms Race, it's citizens, not law enforcement. They're at the mercy of a judicial system that isn't known for its turn rate on tech-implicating cases.
I am confident the vast majority of our law enforcement officers will err on the side of caution and liberty, and get a warrant in cases like the one before us. The law always seems to be several steps behind technology, and this approach strikes me as the most prudent course of action going forward.
The main takeaway from Carpenter is this: Get. A. Warrant. Why take a chance a court may find whatever third party data you built a case on to be protected under the Fourth Amendment? A warrant -- even if badly/broadly written -- will generally score law enforcement some points in the "good faith" category, insulating obtained evidence from attempts to have it suppressed.

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Elsevier Will Monitor Open Science In EU Using Measurement System That Favors Its Own Titles

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Back in April, we wrote about a curious decision to give the widely-hated publisher Elsevier the job of monitoring open science in the EU. That would include open access too, an area where the company has major investments. The fact that the European Commission seemed untroubled by that clear conflict of interest stunned supporters of open access. Now one of them -- the paleontologist Jon Tennant -- is calling on the European Commission to remove Elsevier, and to find another company with no conflicts of interest. As Tennant writes in the Guardian:

How is it reasonable for a multi-billion dollar publishing corporation to not only produce metrics that evaluate publishing impact [of scientific articles], but also to use them to monitor Open Science and help to define its future direction? Elsevier will be providing data through the monitor that will be used to help facilitate future policy making in the EU that it inevitably will benefit from. That's like having McDonald's monitor the eating habits of a nation and then using that to guide policy decisions.
Elsevier responded with a blog post challenging what it calls "misinformation" in Tennant's article:
We are one of the leading open access publishers, and we make more articles openly available than any other publisher. We make freely available open science products and services we have developed and acquired to enable scientists to collaborate, post their early findings, store their data and showcase their output.
It added:
We have co-developed CiteScore and Snowball Metrics with the research community -- all of which are open, transparent, and free indicators.
CiteScore may be "open, transparent, and free", but Tennant writes:
Consider Elsevier's CiteScore metric, a measure of the apparent impact of journals that competes with the impact factor based on citation data from Scopus. An independent analysis showed that titles owned by Springer Nature, perhaps Elsevier's biggest competitor, scored 40% lower and Elsevier titles 25% higher when using CiteScore rather than previous journal impact factors.
In other words, one of the core metrics that Elsevier will be applying as part of the Open Science Monitor appears to show bias in favor of Elsevier's own titles. One result of that bias could be that when the Open Science Monitor publishes its results based on Elsevier's metrics, the European Commission and other institutions will start using Elsevier's academic journals in preference to its competitors. The use of CiteScore creates yet another conflict of interest for Elsevier.As well as writing about his concerns, Tennant is also making a formal complaint to the European Commission Ombudsman regarding the relationship between Elsevier and the Open Science Monitor:
The reason we are pursuing this route is due to the fact that the opportunity to raise a formal appeal was denied to us. In the tender award statement, it states that "Within 2 months of the notification of the award decision you may lodge an appeal to the body referred to in VI.4.1.", which is the General Court in Luxembourg. The notification of the award was on January 11, 2018, and it was exactly 2 months and 1 day later when the role of Elsevier as subcontracted was first publicly disclosed. Due to this timing, we were unable to lodge an appeal.
In other words, it was only revealed that Elsevier was the sub-contractor when it was too late to appeal against that choice. A cynic might almost think those behind the move knew people would object, and kept it quiet until it was impossible under the rules to appeal. Open science? Not so muchFollow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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This Week In Techdirt History: July 1st - 7th

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Five Years AgoThis week in 2013, we kicked things off with the latest Snowden leaks revealing that the US had used bugs for surveillance on its allies, and that the PRISM program was huge and complex. George W. Bush stepped up to defend the NSA while President Obama tried to smooth things over with Europe, FISA court judges were upset about the scrutiny, and the Washington Post published a sad editorial calling for the leaks to stop. Then James Clapper shockingly admitted to lying to congress, but was apparently off the hook with nothing more than a staged apology.Ten Years AgoThis week in 2008, while Sony was further fragmenting the movie download market and NBC was once again failing to offer compelling Olympic coverage online, EMI was showing off its promised "new approach" to the internet by suing more platforms over piracy. Bono joined his manager in blaming ISPs for the destruction of music, while we wondered if the recording industry would play by its own proposed three-strikes rule but for faulty DMCA notices. Meanwhile, the RIAA argued in the Jammie Thomas case that evidence of actual distribution shouldn't be necessary to sue for infringement, while Viacom convinced the court that YouTube should hand over logs of the IP addresses and usernames of people who watched videos.Fifteen Years AgoThis week in 2003, the FCC launched its national do-not-call list, which was so popular that the website to sign up quickly went down. Some people quickly started calling for a similar plan for spam, while others questioned how well it would really even work for calls. Speaking of spam, one spammer won in court this week since spamming is not "trespassing", but another submitted a guilty plea in his case because it certainly can be fraud. Spam was, overall, getting worse and costing money, while the world braced for the expected onslaught of text messaging spam.

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posted at: 12:16am on 08-Jul-2018
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In Harris County, Texas, The Death Penalty Is Applied With A Judicial Rubber Stamp

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When life is literally on the line, Texas judges are slouching their way towards another paycheck.

In these cases, Harris County post-conviction prosecutors have authored and proposed 21,275 separate findings of fact and conclusions of law and the Harris County courts have adopted 20,261 of the prosecutors’ proposed findings verbatim: an adoption rate of 95%. In fact, judges in Harris County have adopted all of the prosecutors’ findings verbatim in 183 out of 191 sets of findings, or 96%. In the vast majority (167) of those cases, the judges simply signed the state’s proposed document without changing the heading.
The research conducted by Jordan Stelker, James Marcus, and Thea Posel -- a review of 199 capital post-conviction cases that flowed through Harris County's (TX) massive broken court system -- also notes that eight Harris County courts never rejected the state's conclusions, even when the findings were "plainly contradicted by the record."The full report [PDF] contains details of handful of cases where the rubber stamp was applied by judges with genuine indifference to the people they were sentencing to death. In many of these cases, no consideration was given for convicts' mental health problems, traumatic childhoods, good behavior while incarcerated, or anything else that may have proved mitigating.
[T]he findings of fact and conclusions of law in Dexter Johnson’s case suggest that the problem of one-sided rubber-stamping may be more prevalent than a review of document headings would indicate. Instead of a signed copy of the prosecutor’s proposed findings summarily adopted as the findings and conclusions of the trial judge, the findings of fact and conclusions of law document in Johnson’s case is captioned “The Trial Court’s Findings of Fact and Conclusions of Law and Order of the Court.” However, a line-by-line comparison against the state’s proposed findings and conclusions indicates that the two documents are entirely identical in substance, with the exception that the court’s findings do not bear the prosecutor’s signature block or certificate of service and the spacing has been rearranged to make up for the extra room left at the bottom of the last page by the omission of the signature block. The prosecutor’s proposed findings and the trial court’s adopted findings are written in the same distinctive font and share the same mistake in numbering in the final set of conclusions of law. Both sets are file-stamped on February 24, 2010, and Judge Denise Collins signed the document captioned “The Trial Court’s Findings” on the same day.
Not even a copy-paste job. Just some mild alteration to transpose the judicial approval over the prosecution's signatures. Taking the state's version verbatim meant ignoring all of this:
The issues in Johnson’s case were not boilerplate—he had a history of low IQ scores, schizophrenia, brain damage, and learning difficulties, and the claims raised in his habeas application attack both the voluntariness of his statements to police and the effectiveness of his appellate counsel.
And the date on the rubber-stamped document means something shady happened in that judge's court.
However, circumstances indicate that the trial judge either signed the findings authored by the state the very same day they were filed (changing the heading herself), received an ex parte copy of the state’s proposed findings to consider before they were filed with the court, or was provided with a clean and revised copy of the state’s proposed findings by the prosecutor to further streamline the rubber-stamping process.
As the report points out, several factors have contributed to same-day service from Harris County judges and their rubber stamps. First, an inordinate amount of capital cases are routed through these courts as the result of jurisdiction allocation. A well-intentioned effort to keep capital reviews close to the courts of conviction was supposed to allow judges already familiar with these cases to make decisions on post-conviction habeas corpus reviews. Instead, it has just created a backlog of cases in courts already stymied by the lack of clerks.But the biggest reason for Harris County rubber-stamping is this: zero accountability.
The CCA (Court of Criminal Appeals) is no doubt aware of the ubiquity of rubber-stamping and yet affords deference to such findings in the same manner as those produced after more extensive, independent proceedings (evidentiary hearings followed by independent court-drafted orders). Similarly, federal courts within the Court of Appeals for the Fifth Circuit routinely defer to fact findings contained in rubber-stamped state-proposed orders, insisting such deference is mandated by the federal habeas statute. So long as rubberstamping continues to receive the imprimatur of the CCA and the federal courts, state post-conviction judges have little incentive to abandon the practice.
It's not a justice system. It's a rigged game where the prosecution runs the table nearly 100% of the time. And it's happening in a state that has always taken time to brag about how many criminals it puts to death. The state's courts are complicit in the removal of anything adversarial from a supposedly adversarial process. The system in Harris County appears to be broken at every level, starting with the routine jailing of the presumptively innocent (thanks to absurdly-high bail amounts and an adamant refusal to release arrestees on their own recognizance) and running all the way up to the rubber-stamping of prosecutors' paperwork in death penalty cases.

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posted at: 12:15am on 07-Jul-2018
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Don't Believe Those Who Wish To Diminish Digital Rights By Falsely Implying It's All Big Tech Lobbying

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As we have been covering in the last couple of weeks, a controversial EU Copyright Directive has been under discussion at the European Parliament, and in a surprising turn of events, it voted to reject fast-tracking the tabled proposal by the JURI Committee which contained controversial proposals, particularly in Art 11 and Art 13. The proposed Directive will now get a full discussion and debate in plenary in September.I say surprising because for those of us who have been witnesses (and participants) to the Copyright Wars for the last 20 years, such a defeat of copyright maximalist proposals is practically unprecedented, perhaps with the exception of SOPA/PIPA. For years we've had a familiar pattern in the passing of copyright legislation: a proposal has been made to enhance protection and/or restrict liberties, a small group of ageing millionaire musicians would be paraded supporting the changes in the interest of creators. Only copyright nerds and a few NGOs and digital rights advocates would complain, their opinions would be ignored and the legislation would pass unopposed. Rinse and repeat.But something has changed, and a wide coalition has managed to defeat powerful media lobbies for the first time in Europe, at least for now. How was this possible?The main change is that the media landscape is very different thanks to the Internet. In the past, the creative industries were monolithic in their support for stronger protection, and they included creators, corporations, collecting societies, publishers, and distributors; in other words the gatekeepers and the owners were roughly on the same side. But the Internet brought a number of new players, the tech industry and their online platforms and tools became the new gatekeepers. Moreover, as people do not buy physical copies of their media and the entire industry has moved towards streaming, online distributors have become more powerful. This has created a perceived imbalance, where the formerly dominating industries need to negotiate with the new gatekeepers for access to users. This is why creators complain about a value gap between what they perceive they should be getting, and what they actually receive from the giants.The main result of this change from a political standpoint is that now we have two lobbying sides in the debate, which makes all the difference when it comes to this type of legislation. In the past, policymakers could ignore experts and digital rights advocates because they never had the potential to reach them, letters and articles by academics were not taken into account, or given lip service during some obscure committee discussion just to be hidden away. Tech giants such as Google have provided lobbying access in Brussels, which has at least leveled the playing field when it comes to presenting evidence to legislators.As a veteran of the Copyright Wars, I have to admit that it has been very entertaining reading the reaction from the copyright industry lobby groups and their individual representatives, some almost going apoplectic with rage at Google’s intervention. These tend to be the same people who spent decades lobbying legislators to get their way unopposed, representing large corporate interests unashamedly and passing laws that would benefit only a few, usually to the detriment of users. It seems like lobbying must be decried when you lose.But to see this as a victory for Google and other tech giants completely ignores the large coalition that shares the view that the proposed Articles 11 and 13 are very badly thought-out, and could represent a real danger to existing rights. Some of us have been fighting this fight when Google did not even exist, or it was but a small competitor of AltaVista, Lycos, Excite and Yahoo!At the same time that more restrictive copyright legislation came into place, we also saw the rise of free and open source software, open access, Creative Commons and open data. All of these are legal hacks that allow sharing, remixing and openness. These were created precisely to respond to restrictive copyright practices. I also remember how they were opposed as existential threats by the same copyright industries, and treated with disdain and animosity. But something wonderful happened, eventually open source software started winning (we used to buy operating systems), and Creative Commons became an important part of the Internet’s ecosystem by propping-up valuable common spaces such as Wikipedia.Similarly, the Internet has allowed a great diversity of actors to emerge. Independent creators, small and medium enterprises, online publishers and startups love the Internet because it gives them access to a wider audience, and often they can bypass established gatekeepers. Lost in this idiotic “Google v musicians” rhetoric has been the threat that both Art 11 and 13 represent to small entities. Art 11 proposes a new publishing right that has been proven to affect smaller players in Germany and Spain; while Art 13 would impose potentially crippling economic restrictions to smaller companies as they would have to put in place automated filtering systems AND redress mechanisms against mistakes. In fact, it has been often remarked that Art 13 would benefit existing dominant forces, as they already have filtering in place (think ContentID).Similarly, Internet advocates and luminaries see the proposals as a threat to the Internet, the people who know the Web best think that this is a bad idea. If you can stomach it, read this thread featuring a copyright lobbyist attacking Neil Gaiman, who has been one of the Internet celebrities that have voiced their concerns about the Directive.Even copyright experts who almost never intervene in digital rights affairs the have been vocal in their opposition to the changes.And finally we have political representatives from various parties and backgrounds who have been vocally opposed to the changes. While the leader of the political opposition has been the amazing Julia Reda, she has managed to bring together a variety of voices from other parties and countries. The vitriol launched at her has been unrelenting, but futile. It has been quite a sight to see her opponents both try to dismiss her as just another clueless young Pirate commanded by Google, while at the same time they try to portray her as a powerful enemy in charge of the mindless and uninformed online troll masses ready to do her bidding.All of the above managed to do something wonderful, which was to convey the threat in easy-to-understand terms so that users could contact their representatives and make their voice heard. The level of popular opposition to the Directive has been a great sight to behold.Tech giants did not create this alliance, they just gave various voices access to the table. To dismiss this as Google’s doing completely ignores the very real and rich tapestry of those defending digital rights, and it is quite clearly patronizing and insulting, and precisely the reason why they lost. It was very late until they finally realized that they were losing the debate with the public, and not even the last-minute deployment of musical dinosaurs could save the day.But the fight continues, keep contacting your MEPs and keep applying pressure.Reposted from the TechnoLlama blog.

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Kim Dotcom Loses Latest Round In Extradition Fight, Will Try To Appeal Again

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Kim Dotcom's ongoing legal saga continues. The latest is that the New Zealand Court of Appeal has rejected his appeal of earlier rulings concerning whether or not he can be extradited to the US. Dotcom and his lawyers insist that they will appeal to the Supreme Court, though there seems to be some disagreement about whether or not that will even be possible. The full ruling is worth a read, though much of it is dry and procedural.And, I know that many people's opinion of this case is focused almost exclusively on whether they think Kim Dotcom and Megaupload were "good" or "bad," but if you can get past all of that, there are some really important legal issues at play here, especially concerning the nature of intermediary liability protections in New Zealand, as well as the long-arm reach of US law enforcement around the globe. Unfortunately, for the most part it's appeared that the courts have been much more focused on the whole "but Dotcom is obviously a bad dude..." and then used that to rationalize a ruling against him, even if it doesn't seem to fit what the law says.As Dotcom and his lawyers have noted, this has meant that, while there are now three rulings against him on whether or not he can be extradited, they all come to different conclusions as to why. A key issue, as we've discussed before, is the one of "double criminality." For there to be an extraditable offense, the person (or people) in question need to have done something that is a crime in both the US and New Zealand. As Dotcom has argued over and over again, the "crime" that he is charged with is effectively criminal secondary copyright infringement. And that's a big problem, since there is no such thing as secondary criminal copyright infringement under US law. Since Megaupload was a platform, it should not be held liable for the actions of its users. But the US tries to wipe all of that away by playing up that Dotcom is a bad dude, and boy, a lot of people sure infringed copyright using Megaupload. And all of that may be true, but it doesn't change the fact that they should have to show that he actually broke a law in both countries.Indeed, the lower court basically tossed out the copyright issue in evaluating extradition, but said he could still be extradited over "fraud" claims. Dotcom argued back that without the copyright infringement, there is no fraud, and thus the ruling didn't make any sense.The Court of Appeal comes to the same conclusion, but for somewhat different reasons. It appears that Dotcom's lawyers focused heavily on what some might consider technical nitpicking in reading of the law. Pulling on a tactic that has been tried (not successfully...) in the US, they argued that reading through the text of the copyright shows that it only applies to "tangible" copies -- i.e., content on a physical media -- rather than on digital only files. In the US, at least, the Copyright Act is written in such a way that a plain reading of the law says that copyright also only applies to physical goods, rather than digital files. But, as has happened here, US courts have not been willing to accept that fairly plain language in the statute because it would mess up the way the world views copyright. It's no surprise that the New Zealand court came to the same end result. While it would be better if the law itself were fixed, the courts seem pretty united in saying that they won't accept this plain reading of the statute, because that would really muck things up. Unfortunately, in focusing on that nitpicking, it may have obscured the larger issues for the court.Over and over again in the ruling, the court seems to bend over backwards to effectively say, "look, Dotcom's site was used for lots of infringement, so there's enough evidence that he had ill intent, and therefore we can hand him over to the US." That seems like a painfully weak argument -- but, again, par for the course around Dotcom. So, basically, even though it has other reasons than the lower court, this court says there's enough here to extradite:

We have departed from the Judge in our analysis of s 131.260 But theJudge's conclusions on ss 249 and 228 (the latter of which we will turn to shortly)were not affected by his conclusion on s 131. Each of the ss 249 and 228 pathwaysdepended on dishonesty, as defined, and the other elements of the actus rei of thoseoffences. Inherent in the Judge's finding was that dishonesty for the purpose of s 249(and s 228) did not require proof of criminal conduct under s 131. With that conclusionwe agree. It is plainly sufficient that for the purposes of s 217 that the relevant actsare done without belief in the existence of consent or authority from the copyrightowner. It does not need to amount to criminal conduct independently of s 249.Put another way, dishonestly as defined in s 217 is not contingent on havingcommitted another offence, but is instead simply an element of the offence.
That may be a bit confusing, but basically they're saying it doesn't much matter whether or not there was actual criminal copyright infringement or not, because there was enough "dishonesty" to allow Dotcom to be extradited on other issues.Again, none of this is that surprising, but it does again feel like the courts reacting to how they perceive Dotcom himself, rather than following what the law actually says. That should worry people. At this point, it seems highly likely that Dotcom's attempts to appeal to the Supreme Court will fail and that he will be extradited. Of course, then there would still need to be legal proceedings in the US -- though the judge assigned to his case has already shown little interest in understanding the nuances of copyright and intermediary liability law, so it's likely to be quite a mess here as well.Whatever you think of Kim Dotcom, many of the legal arguments against him seem almost entirely based on the fact that people want to associate him with the actions of his users, and the fact that he didn't seem to much care about what the legacy entertainment industry thought of him. Maybe he deserves to be locked up -- but it's hard to argue that the process has been fair and based on what the law actually says.

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Over The Top Sports Streaming Comes To Europe With Amazon's Deal With The Premier League

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We've made the point repeatedly that one of the last and most important threads on which the current cable television industry is hanging is that of live sports. While cord-cutting is indeed a thing, the many broadcast agreements pro and major college sports leagues have with cable broadcast partners keeps the cord-cutting from becoming a deluge from a burst dam. That being said, small but important steps have begun with many leagues, which are finally recognizing the demand viewers have for over the top streaming options. While there are still far too many restrictions in these sports streaming options, there is no doubt that American sports leagues have begun snipping away at this thread for cable television.And now it this practice is coming to Europe as well. Specifically, Amazon has secured a relatively small but massively important streaming broadcast agreement for Premier League soccer.

Amazon has scored the rights to stream Premier League football (soccer) matches in the UK for three years. It’s the first time that Brits will be able to watch a full day of games on a streaming-only service, and Amazon will offer 20 games next season to Prime subscribers at no extra cost. Amazon has secured one of the smaller packages of Premier League games, but an important one over the festive period. Prime subscribers will get access to the first midweek December games rather than the big weekend fixtures, and Amazon will also be streaming all of the festive Boxing Day fixtures.“This will be the first time a full round of Premier League fixtures will be broadcast live in the UK,” notes Amazon. It’s a deal that will mean British football fans will need to have an Amazon Prime subscription to watch any Boxing Day matches live. Boxing Day is a public holiday in the UK, and it’s a big day of football matches. It’s also the day after Christmas Day, when most British football fans will sit around in their pajamas and feast on leftover Christmas dinner food and watch matches live.
The plans Amazon has for this specific broadcast agreement obviously revolve around more than just revenue from the matches themselves. The timing of the games is key, centered around the post-Christmas holiday. Amazon will be pushing the public to sign up for Amazon Prime so that they can stream these games, while at the same time pushing those same customers to do their holiday shopping on Amazon as well. It's a way to gobble up marketshare in a fairly ingenious way.But the greater overall effect could be on the cable industry in Europe. Imagine if the viewership numbers for these streaming games compares favorably to broadcast cable television numbers. Suddenly, the Premier League will have found a brand new partner to show its games, one that is motivated by more than just selling advertising during commercial breaks. There's a synergy there that cable TV simply can't have. And, of course, the public would have far less use for cable TV if it can get its sports via streaming.This trend has and will continue. And it doesn't look good for the cable industry.

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For July 4th, Make Sure To Order Your NSA-Approved T-Shirt

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A month ago, we took a bunch of public domain/FOIA'd NSA "security posters" from the 1950s, 60s and 70s, and turned them into some pretty terrific retro style t-shirts. We're not publishing today as it's July 4th, and we thought: what better way to celebrate July 4th than to order some NSA-approved t-shirts (or mugs or hoodies)? They're real conversation starters. You can see the whole collection at our Teespring store.Of course, we've heard from some people that they're not sure which NSA poster they want on a t-shirt or mug -- so I thought for the holiday, I'd share some information on which ones are most popular so far. At the top of the list we've got the groovy "Secure All Classified Material" design:

In close second is my favorite, "Security for the Seventies." Don't be left behind.
Those two are by far the most popular. After that, far behind those two, we have a cluster of another 5 designs that people seem to like. There's "Up Tight and Out of Sight" which looks more like an album cover than a security poster:
There's "Be Sure to Vote Security" -- which you can't really argue with:
Another popular styling one is the "Lock Before You Leave" footprint:
There's certainly something practical about the recommendation to "Tighten Security Practices":
And finally, who can pass up this good advice: "Do Not Discuss Classified Business Outside Authorized Areas". I have to imagine this shirt must make for quite the conversation starter...
Check them out, get a nice t-shirt, mug or hoodie -- and support Techdirt in the process.

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EU Parliament's Legislative Affairs Committee Is Now Misleading Members Of Parliament In Effort To Fundamentally Alter The Internet

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We've had a bunch of posts today alone (and in the past few weeks) about the absolutely terrible EU Copyright Directive that the wider EU Parliament will vote on this Thursday. The version that will receive a vote on Thursday was only just released and it shows that the legislative affairs committee, JURI, that voted for it a few weeks ago actually took a really bad proposal and made it significantly worse. As more and more people have woken up to this fact and started calling it out, it appears that JURI is going on the offensive. And I mean "offensive" in both definitions of the word.JURI sent sent the attached document to Members of Parliament, trying to defend its position on Articles 11 and 13. The email it sent reads as follows:

Dear Colleagues,Before Thursday's vote on the mandate of the copyright file, you willfind attached an update on the content of the text adopted in JURI,accompanied, with regard to explanations, by the text passages of thecorresponding compromises. This to try to answer, once again, themassive disinformation campaign that we are experiencing.Thank you for taking note.Kind regards,
There is only one "massive disinformation" campaign going on, and it's by those in favor of Articles 11 and 13, and JURI is a key player in it, judging from this complete nonsense document. Let's dig in:
ON THE ARTICLE 11The paragraph 1 of the article makes it clear that the remuneration of press publishers is only an option:
1.Member states shall provide publishers of press publications with the rights provided for in article 2 and article 3(2) of directive 2001/29/ec so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.
This gives a lot of flexibility to the application of this provision.
Actually, it does not. Remember the original point of the EU Copyright Directive was to "harmonize" copyright laws across the EU, because trying to comply with many different copyright laws was harming the ability to produce and release content in the EU. Under the terms of Article 11, all member states now need ("shall provide") to create a brand new right for publishers. And while the directive gives "a lot of flexibility," that's because (despite requests from many!), the drafters decided to ignore pleas to give some direction on what this right would apply to. It could have only applied to works covered by copyright -- which would require more than a minimal snippet and also would require an element of creativity. But the EU Commission and JURI, bizarrely, refused to include that. Instead, they leave it up to the member states to implement as they want. That "flexibility" means that any member state can put a snippet tax on the use of a single word.And, then, because the whole point of the freaking directive was to allow a harmonization so that works could be published across the EU, whichever EU country comes up with the most ridiculous, and most limiting publishers' rights will "win" and everyone will have to live down to that standard in order to avoid infringing on this new right. So that "flexibility" actually argues against JURI here, because it's a large part of what makes the snippet/link tax so incredibly dangerous. Without putting any real effort towards protecting the rights of users, but allowing the flexibility for states to create rights that harm the public, it pretty much guarantees that result.
Moreover, it is important to note that Member States shall ensure that authors receive an appropriate share of the additional revenues that press publishers receive for the use of a press publication by information society service providers.
I'm curious if JURI has done any research on how corrupt Collection Societies have been over time. The idea that the money will flow from publishers to authors is laughable. For years we've been collecting stories of how collection societies -- often "controlled" by large legacy industry players -- collect lots of money for copyright licenses, but magically seem to have trouble doling it out to actual creators. Creating a new such collection society and a new right on top of existing rights doesn't change any of that.
In order to answer those who are worried about consequences on social networks:NO, hyperlinks are not included in this article, and it is very clear in the text:
2a. The rights referred to in paragraph 1 shall not extend to acts of hyperlinking.
We already discussed the whole addition of the "shall not extend to acts of hyperlinking" text this morning. It's meaningless. The rest of the Article makes it clear that states can implement this in a way that will clearly impact hyperlinks, in part because most hyperlinks contain a snippet. And, again, JURI disregarded requests by many to make it clear that snippets should have to be more than just a single word or phrase -- thus leaving that open.
NO, there will be no impact on individual users since private and non - commercial uses of press publications are not covered by the article.
1a. The rights referred to in paragraph 1 shall not prevent legitimate private and non-commercial use of press publications by individual users.
This is the most ridiculous part. Most "legitimate private and non-commercial" users of press publications are using platforms to share links. So, of course it will impact them. Even beyond that, it will clearly limit what news and information people are able to find online. Remember, Spain implemented this kind of snippet tax, and a comprehensive study showed that it significantly harmed small publishers. So, uh, does JURI think it can just ignore the evidence? It certainly appears to be the case.
In addition, the right established by paragraph 1 of Article 11 only applies to press publications used by information society service providers, which are defined in the text, and not to individual users that are excluded in the paragraph 1 (a) of Article 11.
1.Member states shall provide publishers of press publications with the rights provided for in article 2 and article 3(2) of directive 2001/29/ec so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.1a. The rights referred to in paragraph 1 shall not prevent legitimate private and non-commercial use of press publications by individual users.
Same exact point I made above. The fact that it doesn't apply directly to end users is meaningless, since those end users pretty much all rely on the platforms -- the "information society service providers" under the directive -- that the law will impact. Who actually takes JURI seriously here?
ON THE ARTICLE 13 AND ARTICLE 2 (DEFINITIONS)It aims to make platforms accountable, but not all platforms. Article 13 needs to be seen in conjunction with article 2 of the draft directive.
Article 2 (4a) 'online content sharing service provider' means a provider of an information society service one of the main purposes of which is to store and give access to the public to copyright protected works or other protected subject-matter uploaded by its users, which the service optimises. Services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all concerned rightholders, such as educational or scientific repositories, should not be considered online content sharing service providers within the meaning of this directive. Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this directive.
Only those that are active, so that optimize the content posted online.
I've seen a few people -- including MEP Axel Voss, who is responsible for this monstrosity -- keep making this point, and it's so ridiculous as to make me question if any of these people have ever actually used the internet. This definition will absolutely apply to a ton of online platforms. That they carved out a few, very narrow and very specific exceptions, after a few organizations complained, does not mean that Article 13 is not a bulldozer coming for a large part of the open internet.Part of what makes the internet valuable is that it's a communications medium, by which anyone can communicate with anyone. That's the wonder of user-generated content platforms -- and all of those will pretty much qualify under Article 13, because if they accept input from users, that input is going to be covered by copyright. Even the idea that "cloud services" are carved out is laughable, because note the caveat on those: it only applies if they "do not provide direct access to the public." Can you name a cloud service provider that does not include a "share" button? That's what makes the cloud valuable. If it's just to store my personal stuff, why not just park a drive in my closet?
Also, no general filtering measures are included in Article 13. The text even emphasizes that this practice is prohibited:
1.b members states shall ensure that the implementation of such measures shall be proportionate and strike a balance between the fundamental rights of users and rightholders and shall in accordance with article 15 of directive 2000/31/ec, where applicable not impose a general obligation on online content sharing service providers to monitor the information which they transmit or store.
This is the "plausible deniability" clause similar to Article 11's "but this doesn't apply to hyperlinks" nonsense. You can say that article 13 doesn't create a requirement for upload filters all you want, but when there's literally no conceivable way to suggest you're complying without installing an upload filter, it's a meaningless assertion. Besides, the very next claim completely debunks this one:
However, active platforms need to put in place measures in cooperation with rightholders when they alert platforms about the public availability of infringing content.
1a. Member states shall ensure that the online content sharing service providers referred to in the previous sub-paragraphs shall apply the above mentioned measures based on the relevant information provided by rightholders.
So... there are no mandatory upload filters... but "active platforms need to put in place measures for dealing with rightsholders. That... certainly sounds like a requirement for upload filters.
Finally, Article 13 will not lead to censorship of the entire internet.It does not threaten freedom of expression or fundamental rights.
Who are you going to believe on this one? An EU Parliamentary committee that has already shown a fundamental inability to understand how the internet works... or David Kaye, the UN's special rapporteur for freedom of expression, who wrote JURI a long and detailed report explaining exactly how Article 13 threatens freedom of expression and fundamental rights? I'm going to have to side with the UN's free speech expert on that one.
The meme, mash-up, the gifs are already allowed and included in an existing exception and will still be after the adoption of this directive (article 5, directive 2001/29/EC
3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: (k) use for the purpose of caricature, parody or pastiche
I'd like to highlight an important sneaky bit here. Note how earlier, all of the stuff about online platforms used the word "shall" for implementing these upload filters? Now look at the text JURI highlights here claiming that there are "existing exceptions." See the different word? It's not "shall," it's "may provide." May is different than shall. And not every EU state has provided for such user rights.But there's a larger point here. We all know that determining what is considered non-infringing as "caricature, parody or pastiche" is not something that is done easily. It's certainly not something done by an algorithm. In many cases it takes years long trials and appeals, with lots of disagreement. Yet, the text of Article 13, and apparently the geniuses on JURI seem to think that online platforms can put in place effective measures to make those determinations (1) in a split second and (2) without any chance of getting it wrong and (3) without a likelihood of taking down protected, non-infringing speech.If whoever wrote up this nonsense for JURI actually believes that, then let them create such a filter, because it doesn't -- and cannot -- exist.
A provision was even added to ensure a complete protection of users' data, even though GDPR naturally applies to all legislation:
2.2 Moreover, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation, the measures referred to in paragraph 1 should not require the identification of individual users and the processing of their personal data.
Again, this shows a rather stunning level of technical ignorance. First they demand that all content be tracked to make sure it's not infringing... and then at the same time, they insist that such a system can't make use of individual data. This is, effectively, JURI telling internet platforms "you are required to base your servers on the sun and... you're not allowed to transmit data through space." These requirements are written by people who have no idea what they're talking about.
Small and medium-sized enterprisesAny platform is covered by Article 13 if one of their main purposes is to give access to copyright protected content to the public.It cannot make any difference if it is a small thief or a big thief as it should be illegal in the first place.Small platforms, even a one-person business, can cause as much damage to right holders as big companies, if their content is spread (first on this platform and possibly within seconds throughout the whole internet) without their consent.
This may be my favorite part of this nonsense. Remember how just a few paragraphs above this JURI was insisting that it wouldn't impact individuals and that everyone was ignoring that Article 13 only applied to a tiny subset of internet sites? Now, here, it's arguing the exact opposite, saying straight up that it must apply to basically all internet sites, even ones that are run by a single person. And they use "one-person business" ignoring the fact that tons of individuals will, say, post ads or donation links on their personal websites, just to pay for the hosting. But that will suddenly turn them into being "commercial" businesses under the umbrella of the censorship requirements of Article 13.So, which is it JURI? Does Article 13 apply to these platforms or not? Ah, it totally does:
In view of such a small business potentially causing such a tremendous damage to right holders, the compromise text does not foresee any exemption for SMESs.
Seriously, it feels like whoever wrote this portion of the document apparently has never met whoever wrote the earlier part of the document trying to play down how many sites it would impact. Someone should introduce them to each other.
However, the text provides safeguards that will benefit SMEs. Measures must be appropriate and proportionate.We cannot demand the same thing from an SME as from Youtube.Since the measures may be very different in nature, from the content recognition system to a simple notification system, there are many possibilities for SMEs to find measures corresponding to their means and size.
Okay, so I run a small platform. You tell me that the measures must be "appropriate and proportionate." I have no freaking clue what that means for me. I don't need to implement ContentID, which is good because ContentID cost more to build than Techdirt probably makes in a century. But... as a small site I'm left with zero understanding of what I need to do, other than block the EU or hire some very, very expensive lawyers who probably still can't stop me from getting dragged into court.This kind of uncertainty is going to be a massive drag on smaller sites.
Finally, solutions compatible with the Directive already exist on the market, are affordable for SMEs and the market will continue to develop in this direction.
This is what should be known as "the Audible Magic lie." Supporters of Article 13 love to point to Audible Magic -- who makes a filter platform for music -- to claim that there are products on the market. There are a few major problems with this claim. First of all, the idea that they are "affordable" is laughable. As I've noted in the past, we spoke with a smaller platform who noted that Audible Magic quoted them a price of approximately $50,000 per month. That's over half a million dollars a year. And this was not a large site. Smaller sites don't have an extra half a million dollars lying around to hand off to some company to provide a tool that doesn't work very well and which serves no real purpose other than to annoy its users and drive them elsewhere.Second, such filters may exist for music (and possibly video), but that's not the case for lots of other content. Photos? Not really. Text? Nope. Yet, Article 13 applies to everything.JURI's attempt to salvage the horrible internet-destroying directive it passed a few weeks ago is confused, ignorant and disingenuous. Hopefully MEPs don't buy it. If you haven't yet, NOW is the time to tell MEPs to #SaveYourInternet. Because if they don't, we're going to have a very, very different internet in the near future. And the public isn't going to like it.

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This Shouldn't Need Saying: Threatening To Kill Anyone Over Net Neutrality Is Idiotic

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It's indisputable that Ajit Pai's attack on net neutrality was a facts-optional hatchet job of historical proportions. Pai ignored the public, the experts, ethical boundaries, and FCC guidelines as he rushed to give a sloppy wet kiss to some of the most disliked and anti-competitive companies in any American industry. Making matters worse, Pai repeatedly rubbed salt in the wound by behaving like a tone-deaf ass at numerous points during the bizarre and amateurish gambit.That said, however terrible Ajit Pai has been (and he has been historically terrible), it should go without saying that threatening the FCC boss or his family is both idiotic and counterproductive.You'll recall that Pai was forced to cancel his appearance at CES back in January due to death threats. And late last week, the Department of Justice announced that it had arrested a 33-year old California man for sending e-mails that threatened both Pai's and his family's lives:

"The first email accused Chairman Pai of being responsible for a child who allegedly had committed suicide because of the repeal of net neutrality regulations. The second email listed three locations in or around Arlington, and threatened to kill the Chairman's family members. The third email had no message in its body, but included an image depicting Chairman Pai and, in the foreground and slightly out of focus, a framed photograph of Chairman Pai and his family."
The full affadavit offers a little more detail, noting that the FBI didn't have to work very hard to identify the man behind the STUBBLEMANLINESS@GMAIL.COM address, from which the threats were made:
"The next day, on or about December 20, 2017, at approximately 3:47 p.m. EST, an email was sent from STUBBLEMANLINESS@GMAIL.COM to Federal Official 1 's government and personal email addresses. The subject line of the email was "Cheers" and the body of the email listed the names and addresses of three preschools located in or around Arlington, Virginia, followed by the following sentence: "I will find your children and I will kill them."
Again, it really shouldn't need saying that threatening any government official or their family over tech policy (net neutrality or anything else) is obviously utterly terrible, obnoxious and disgusting. It's also utterly counterproductive and self-defeating. In reality, this kind of behavior comprises a tiny, tiny fraction of the massive number of folks angry about the repeal. But Pai's staff has enjoyed singling out and highlighting these folks whenever possible to try and imply that opponents to Pai's ISP-cuddly policies are generally unhinged and unreasonable.Besides, Pai has made it easy to dismantle his policy positions in an entirely civil manner without resorting to boorish behavior. This is an agency boss who not only turned a blind eye to fraud and identity theft during the public comment period, but also apparently helped make up a DDOS attack just to try and downplay the massive, bipartisan opposition to his policies. Pai doesn't have much of a leg to stand on when it comes to the facts -- so just stick to them.

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Researchers Reveal Details Of Printer Tracking Dots, Develop Free Software To Defeat It

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As Techdirt has reported previously in the case of Reality Leigh Winner, most modern color laser printers place tiny yellow tracking dots on every page printed -- what Wikipedia calls "printer steganography". The Electronic Frontier Foundation (EFF) first started warning about this sneaky form of surveillance back in 2005. It published a list of printers and whether it was known that they used tracking dots. In 2017, the EFF stopped updating the list, and wrote:

It appears likely that all recent commercial color laser printers print some kind of forensic tracking codes, not necessarily using yellow dots. This is true whether or not those codes are visible to the eye and whether or not the printer models are listed here. This also includes the printers that are listed here as not producing yellow dots.
Despite the EFF's early work in exposing the practice, there has been limited information available about the various tracking systems. Two German researchers at the Technical University in Dresden, Timo Richter and Stephan Escher, have now greatly extended our knowledge about the yellow dot code (via Netzpolitik.org). As the published paper on the work explains, the researchers looked at 1286 printed pages from 141 printers, produced by 18 different manufacturers. They discovered four different encoding systems, including one that was hitherto unknown. The yellow dots formed grids with 48, 64, 69 or 98 points; using the grid to encode binary data, the hidden information was repeated multiple times across the printed page. In all cases the researchers were able to extract the manufacturer's name, the model's serial number, and for some printers the date and time of printing too.It's obviously good to have all this new information about tracking dots, but arguably even more important is a software tool that the researchers have written, and made freely available. It can be used to obfuscate tracking information that a printer places in one of the four grid patterns, thus ensuring that the hard copy documents cannot easily be used to trace who printed them. Printer manufacturers will doubtless come up with new ways of tracking documents, and may already be using some we don't know about, but this latest work at least makes it harder with existing models.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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In Contrast To PUBG's Silliness, Bethesda's Copyright Suit Against Warner Bros. Is All About Copyrightable Source Code

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As the silly copyright lawsuit between PUBG and Epic Games has now come to a fortunate end, with the former dropping the lawsuit it filed over similarities in game genre and broad gameplay aspects that are absolutely not afforded copyright protection, it's probably worth highlighting a lawsuit that is the polar opposite in terms of its merits. Now, I want to stress at the outset that I have no idea as of yet whether or not the allegations that spurred this lawsuit are true or not, but it's the actual claims that are important. If adjudicated as true, those claims are absolutely valid from a copyright law standpoint.Bethesda, makers of the Fallout franchise in its current iteration, has filed a lawsuit against Warner Bros. and Behavior Interactive, which together have released Westworld, a mobile park management simulation based on the hit HBO series. Bethesda has its own simulation of this kind, called Fallout Shelter. While Bethesda's filing does indeed make much of the clear similarities between the games animations and aesthetics, as well as some of the folks behind the Westworld game clearly saying they drew inspiration from Fallout Shelter, the important difference here is this ultimately comes down to reused specific code. How this code got reused is also part of the breach of contract allegations in the suit, as it turns out that Behavior Interactive was involved in creating Bethesda's original product.

Bethesda has stated that Behaviour Interactive was involved in the creation of Fallout Shelter, before going on to make the Westworld game a few years after. Court documents reportedly state that Bethesda believes Behaviour Interactive has stolen its designs, artwork, and code, going on to use them again in this latest project in conjunction with Warner.
Bethesda's filing goes into great detail showing not only aesthetic similarities in the overall game design and character illustration, but specifically in the animations involved in the game as well as how the game screen reacts when players interact. Reading through the filing, it's fairly clear that this was more than a game merely inspired by Fallout Shelters in terms of gameplay, but instead looked to be a pretty faithful recreation of it, except themed to Westworld. Still, despite all of that, Bethesda focused on the code it alleges is reused to achieve this similarity, which is important.And, while Warner Bros. has responded claiming all of this is false, and that Behavior Interactive has assured it that no code was reused, there is some additional evidence that sure points to that not being the case.
Aside from these mostly aesthetic similarities, it turns out that there's one other pretty suspicious thing that Bethesda has noticed, potentially giving the game away even more. Apparently, the same bugs that were originally present in an early version of Fallout Shelter have also been found in Westworld. Oh dear..
We talk a great deal about the idea/expression dichotomy in copyright law specifically, but it should be acknowledged when a content creator gets this question right in its lawsuit allegations. Again, we don't know yet if the allegations of code reuse are true at this point. But someone should wave this filing in front of the folks at PUBG to show then what a legitimate copyright lawsuit in gaming looks like.

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posted at: 12:15am on 03-Jul-2018
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Awesome Stuff: The Fidget Capsule

Furnished content.


It's been a while since we've done an "Awesome Stuff" post, but we were sent a prototype of a new fidget device called Fidget Capsule and couldn't resist writing it up. You may recall, of course, that "fidget" devices were all the rage for a year or so, starting with the famed "Fidget Cube" and then being overtaken by the "fidget spinner" which was an astoundingly popular fad for a very brief period of time (anyone still use a fidget spinner? I didn't think so.) Of course, that hasn't stopped people from fidgeting. I will admit, without shame, that my desk has probably over a dozen different fidget devices -- as well as magnets and pens and other things that aren't technically designed for fidgeting, but that's exactly how I use them.

 
Even though I'm bizarrely fascinated in all sorts of fidget devices, I wasn't entirely sure if the world needed another one. However, the Fidget Capsule is pretty amazing. As you can see in the video, it's pretty straightforward and simple. Unlike the Fidget Cube, there's just one thing you can do with it: squeeze it. But, it does that very, very well. It's basically silent, and kind of perfect as an idle fidgeting device. I've actually found that many fidget devices are... not that good for fidgeting. You may start playing with it, but if you really need to concentrate on something, the fidgeting stops. If anything, I've found that Fidget Cubes are great for when I'm walking around, but not when I'm working. Fidget keyring chain toys are probably still my overall favorite -- as they're also tiny and easy to just to carry around all the time with you (especially since they're just basically a keyring), but the Fidget Capsule works great at my desk while I'm working or on a phone call.It feels very solidly built, and I've dropped it a few times and don't see it being damaged at all. It certainly feels like it will last quite a while. The prototype they sent me is the red one, and I now see that they're actually selling them in batches, with each one having a different resistance. The one they sent me apparently has 6 lbs of resistance, which feels pretty good. I have no idea how the other levels would work (they come in 2lbs, 4lbs, 8lbs, and the special hardcore one at 20lbs). If you don't care at all about fidget toys then clearly these won't be for you, but if you're like me and get somewhat obsessive about them, it's pretty cool.Potential downsides: unlike most other fidget toys, this one is pretty strictly a "desktop" or "tabletop" fidget device. You probably don't want to carry it around with you. It's a bit bulky and pretty heavy (again, solid metal material). It could fit in a pocket, but I don't think it would be particularly comfortable there. It does come with a magnetic display stand which is nice (though it took me nearly a week until I realize I had the display stand upside down -- and it works and looks much better right side up).The one other potential downside: they really seem to want people to buy a set of either four or five of them in the different resistance levels. They don't really have options to just buy a single one -- other than the hardcore 20lb. one, which is priced so close to the various sets that it almost certainly makes sense to just upgrade to a set. And that will probably price it out of the range of many buyers. It's one thing to spend ~$10 to ~$15 on fidget toys, but this one requires you to spend around $50 or more. Considering you get a set of 4 or 5, the price per capsule could be as low as $9, which is not bad at all. But... you still have to buy all of them to get that kind of pricing and I'd imagine that's probably too much for many people. Still, it's a pretty cool device and is definitely good at what it's designed to do, so if you're obsessed with fidgeting, check it out.

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posted at: 12:14am on 01-Jul-2018
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