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August 2018
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Monster Energy Loses Trademark Opposition With Monsta Pizza In The UK

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For readers of this site, we writers would simply need to utter the name "Monster Energy" to get their eyes rolling. The makers of energy beverages have been notorious in their trademark bullying habits and have built a reputation for being both blowhards and litigious. If one actually reviews our stories about the company, however, these bullying attempts just as often lead to pushback and losses for Monster Energy. And now it seems we have another such instance on our hands.A little over a year ago, a pizza joint in the UK applied to register its business name, Monsta Pizza, as a trademark. Monster Energy, which again I will point out makes drinks and not pizza, immediately opposed the registration, citing its own trademarks and claiming that the public would somehow be confused. A year and lots of legal fees later, the trademark office has finally ruled that Monster Energy's opposition is denied and Monsta Pizza's mark will be granted. The pizza company will not need to change any of its branding moving forward. Monster Energy has also been ordered to pay some of Monsta Pizza's legal fees.The folks at Monsta Pizza are understandably pleased.

"On Thursday George Salthouse of the UK Intellectual Property Office ruled that Monster Energy Drinks had failed in their attempt to prevent us using the the name Monsta Pizza.Its been a long and frustrating battle, which started in June 2017 when we applied to register our trademark, and finally ended in a tribunal hearing in London a few weeks ago and the decision last week. They objected to our use of the word Monsta on all possible grounds. We decided to fight it rather than give up and rebrand for two reasons; firstly, we really like our name, it perfectly encompasses what we do and our customers like it too. And secondly, we believed their objection was wrong and we weren’t prepared to walk away from all our hard work just because a bully didn’t like what we were doing. I’ve done that before and its the only thing I’ve ever really regretted.We’re so pleased that common sense prevailed and incredibly grateful for the support and encouragement we received from everybody who heard about it when we finally made public what was going on. Now that this is all over we’re roaring to go.Or as the Monsta says, ‘Pizzaaaaaargh!’
As we've said before, trademark bullying often works, mostly because large companies can drown smaller companies in expensive litigation and oppositions. But it's good to see that occasionally the victims of this bullying are willing to fight back, not to mention that courts occasionally lighten the burden by awarding legal fees.That said, I don't think anyone expects Monster Energy to cease being such a monster trademark bully.

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posted at: 12:31am on 31-Aug-2018
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Officers Lose Their Evidence After Turning A Medical Emergency Call Into A Warrantless Search Party

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This case, coming to us via Andrew Fleischman, would be Keystone-Cops-comical if it weren't such a hideous example of law enforcement using someone's rights as a doormat. What began as a 911 call for assistance with an unresponsive infant soon devolved into a full-blown search of house by several officers without a single warrant between them.

Arielle Turner was indicted by a grand jury for the death of her infant. That's gone now, thanks to the careless, self-destructive actions of the officers at the scene. All evidence obtained during the unlawful search has been suppressed, with this Georgia Supreme Court ruling [PDF] upholding the lower court's decision.

Arielle and her mother, Terry Turner, called 911 to report her 10-week-old baby was unresponsive. EMTs arrived and began treating Turner's daughter before taking her (and Arielle) to the hospital. The child's grandmother remained at home.

The first officer to arrive was Joseph Wells who comforted Terry Turner while standing on the porch. Terry invited Officer Wells to come in and sit down because her legs were starting to hurt. They sat and conversed. Detective Victoria Bender arrived shortly thereafter, letting herself in through the open front door. Neither of these two officers performed any searches or seized any property.

Over at the hospital, an examination did not turn up any signs of abuse or foul play. Investigators believed the infant's death to be accidental. This information was relayed to Detective Bender, who passed it on to Terry Turner. Either something got lost in translation or the officers already on the scene decided to make a command decision. Suddenly, the home they were already in was declared a crime scene, despite there being no evidence of foul play.

Once that happened, the floodgates opened. From the decision:

Shortly thereafter, more officers arrived, including a crime scene investigator who, at some point, began photographing the residence. Detective Bender started questioning Terry about the events leading up to the infant’s death and asked Terry to “take her around and tell [her] what went on last night.” Terry testified that she did not consent to the officers entering or searching her home, and she explained that she did not stop the officers because Detective Bender “just told me that’s what they was [sic] supposed to do.”

As to the sudden unexplained presence of a crime scene investigator, the court has this to say about the spotty testimony offered by other officers named in the lawsuit:

At the motion hearing, none of the law enforcement officers could explain how the crime scene investigator was notified or who summoned him to the scene, and the State did not call him as a witness at the hearing.

Another officer brought Arielle Turner back to her house full of cops. About that same time, the county coroner arrived. The coroner also decided to engage in a warrantless search, which included recording some video with his cellphone. Officers seized pretty much anything baby-related and took them to the sheriff's office.

All the assembled officers believed they had a right to do this under state law. Supposedly the state's Death Investigation Act trumps the US Constitution.

At the hearing on Appellee’s motion to suppress, all of the testifying officers confirmed that they did not obtain a search warrant, that they did not have probable cause to search the house, that they did not ask for permission to search the home, and that they did not believe a crime had occurred when the search of the home took place. Instead, the officers and Alcarez explained that their investigation was done pursuant to Georgia’s Death Investigation Act. See generally OCGA § 45-16-20 (2015) et seq. In total, law enforcement remained in Appellee’s home for approximately three hours questioning witnesses, searching, photographing and videotaping the home, and seizing evidence.

The government tried to argue consent was given for a search. Supposedly, Terry Turner's request one officer (who never performed a search) come in and sit down was a permission slip for several officers to search the entire house and seize multiple items for the next three hours. The court says the law (and the Constitution) simply does not permit this interpretation.

Here, a reasonable officer would understand that Terry’s invitation for Wells to enter her kitchen was not consent for additional officers to conduct a search of the home.

The court goes on to note there was no consent, not even tacitly. If anything, Terry Turner was unaware of her rights and no officer on the scene felt compelled to obtain actual consent when it was far easier to just act like everything was being done by the book.

The record further supports the trial court’s finding that Terry merely acquiesced to the authority of the officers. The record reflects that, after the child was pronounced dead, numerous members of law enforcement responded to the Turner residence in order to investigate the death of the child without probable cause, without a search warrant, and without even a suspicion that a crime had been committed. The officers admitted at the hearing that they did not ask Terry for consent to search the home, to take photographs or video, or to remove any items from the residence. Despite this, at least four members of law enforcement, including a crime scene investigator (whose presence, astoundingly, no one can explain) participated in a search of Appellee’s home.

Law enforcement had the knowledge and the power. The officers chose to only use the latter. A deliberate misreading of the situation turned into playground for unconstitutional behavior. At any point, the search could have been stopped and the damage mitigated by a warrant request. Instead, cops took the inch Turner gave and stretched it into a country mile. And they used all this ill-gotten evidence to cook up a case against the infant's mother, even after hospital personnel stated they saw no indications of abuse or foul play.

This is the government at its ugliest -- willfully abusive and meaninglessly punitive. Hopefully this suppression of evidence will result in better behavior, but the past has shown law enforcement officers are slow learners. Why play by the rules when rolling the federal court dice still pays off regularly?

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posted at: 12:31am on 31-Aug-2018
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Danish ISPs Get Win That Could End Copyright Trolling In Denmark

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We have talked in recent years how the scourge of copyright trolling has hit the nation of Denmark particularly hard. While trolling operations started off about the same as they do elsewhere in the world, their requests to unmask ISP customers soon ramped up to enormous levels. It was enough to turn two ISP rivals into allies, with Telenor and Telia fighting in court for their respective customers' privacy rights. After an initial loss, the companies appealed up the legal chain and managed to get a win with the court siding with the ISPs' privacy concerns over the copyright trolls' nefarious business model. After that, one of the copyright trolls appealed to Denmark's Supreme Court, hoping to reverse the decision once again.It didn't work. The Supreme Court is refusing to hear the case, potentially putting an end to copyright trolling in Denmark.

Unfortunately for the trolls, their hopes were shattered this week when the committee responsible for references to the Supreme Court said it would not be putting the case forward.As a result, the May 7th decision of the Østre Landsret will stand, with Telenor and Telia no longer required to cooperate with parties involved in trolling cases.
As the article notes, the ISPs will no longer have to cooperate with copyright trolls moving forward. And that really should be the end of copyright trolling entirely, as the whole business model hinges on ISPs being forced to give up their customer information so that those customers can be targeted with the threat letters that have milked so much money from the public. This of course doesn't mean that these ISPs will never be required to hand over customer information. Rather, such unmasking can only occur at the request of police investigating criminal conduct.
Telenor Denmark’s Legal Director, Mette Eistrøm Krüger, welcomed the decision.“Both personally and on behalf of our customers, I am really glad that we are being strictly ruled by the National Court’s decision, and we once again find that logging data should only be handed over to the police to combat serious crime,” he told Version2.
And so now we're left to hope that the rest of the world's courts will catch up to the pro-consumer stance taken by the legal system in Denmark.

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posted at: 12:31am on 30-Aug-2018
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Amazon Pays Employees To Chirp Happily On Twitter About Wonderful Working Conditions

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For several years now, there have been a parade of articles examining the "churn and burn" culture at Amazon. For example a 2015 New York Times piece profiled the "bruising" culture at the company while noting that employees weeping at their desk was not an uncommon sight. And while the profile was contested by some employees at the company, a substantial number of different reports have also highlighted the poor working conditions in Amazon distribution warehouses, including employees having to pee in garbage cans for fear of missing targets by going to a proper restroom.Hoping to correct the "public perception" of poor working conditions at the company's warehouses, Amazon executives have crafted a new "solution" to the problem. They've started paying some warehouse employees to create Twitter accounts and speak positively of not only their working experiences, but CEO Jeff Bezos. Under the tags of "Amazon FC Ambassadors," these employees are broadly encouraged to respond to any criticism of Amazon with positivity and, apparently, copious use of emojis as they proudly insist they can pee any time they'd like:

Amazon is a little bit dodgy in comments to The Guardian when it comes to admitting that these employees are being paid extra to chirp happily about their wonderful working experiences at Amazon:
"An Amazon spokesman, Ty Rogers, assured the Guardian via email that these ambassadors were real employees who work in fulfillment centers, not Twitter bots. He declined to answer questions about how the accounts were created or if employees were compensated for defending the company on social media.FC ambassadors are employees who understand what it's actually like to work in our FCs, says Rogers. The most important thing is that they've been here long enough to honestly share the facts based on personal experience. It's important that we do a good job of educating people about the actual environment inside our fulfillment centers, and the FC ambassador program is a big part of that, along with the FC tours we provide."
The employees are similarly cagey about whether they're being paid extra to speak positively about the company on Twitter:
"Asked specifically about whether they were paid extra for their Twitter service, Leo, from Jacksonville, replied: this is just another role that I have. Right now I'm tweeting from work."
In other words, yes, your employer is paying you extra to say nice things about it. You'd hope that actual improvements to working conditions have accompanied Amazon's apparent belief that this campaign of mandatory enthusiasm was a good idea.

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posted at: 12:31am on 30-Aug-2018
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Supreme Court Asked To Correct Appeals Court (Again) And Explain That Patentable Ideas Need To Be New

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In order for something to be patentable subject matter, it has to meet a few criteria, listed out in the Patent Act. It needs to be a "useful process, machine, manufacture, or composition of matter" and it needs to be "non-obvious" to someone "having ordinary skill in the art." But, perhaps most importantly it needs to be a new invention. You can't patent something someone else already invented. That's why prior art is so important.Already, the US Patent Office is notoriously bad at finding prior art, which has been a big complaint here at Techdirt for over a decade. Part of this is that they limit what they'll even look at as prior art, unless information is put directly in front of their faces by those trying to invalidate bad patents. Generally, most of the prior art that patent examiners look at consisted of... earlier patents and scientific journals. And that's not nearly enough for a whole variety of reasons. But, now the Federal Circuit has suggested that even earlier patent applications may not really count as prior art.EFF and R Street teamed up to file an amicus brief with the Supreme Court asking it to reverse the Federal Circuit (something the court has done over and over and over and over and over again in the last dozen or so years).At issue was an attempt to invalidate a patent showing prior art in an earlier patent application. Seems like this should be a slam dunk. There's the patent and an earlier application showing the prior art. Therefore, not novel and not patent eligible. But the courts decided to get nitpicky, and argued that because the prior art in question wasn't directly in the "claims" of the patent, but in the description, it somehow didn't count. The brief explains why this is ridiculous:

First, patents are granted to encourage disclosure of new inventions. Granting a patent on an invention already disclosed to the public works the opposite effect, closing off knowledge that was previously free to use.Second, Ariosa's rule will render the criteria for patentability unstable over time, even as applied to a single patent, because it renders the prior art status of a patent application dependent on the contents of applications filed later. Under the Federal Circuit's rule, then, what is prior art one day could evaporate the next, or vice versa.Third, applicants will have even less motivation to draft narrow claims, which give the public greater notice and certainty as to a patent's scope. Drafting broad claims will now not only allow them to ensnare more infringers, but will also be necessary to ensure their submission prevents the allowance of claims covering all it teaches.Fourth, examiners will have to choose between allowing overbroad claims to issue and requiring amendments that narrow the claims, but in so doing, shrink the pool of prior art available to the examiner in future patent applications. This potentially affects incentives both for their substantive work, in terms of whether to allow or reject patent claims, and for their procedural incentives to complete examination more or less quickly.
But it seems there's an even more basic issue: quibbling over where the prior art lives is not really the key. It's that the prior art exists at all. Once you have that, it doesn't matter where it showed up, whether in a patent description or on the back of a bubblegum wrapper, so long as the dates it was created is clear.Hopefully, the Supreme Court decides it's worth explaining the basics of patent law to CAFC yet again.

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posted at: 12:30am on 29-Aug-2018
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Honest Government Ads Takes On EU Parliament's Plan To Censor The Internet With Article 13

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Juice Media has been doing its brilliant Honest Government Ads satires for a while now, and its latest target is all about the awful Article 13 in the EU's Copyright Directive, which is returning to Parliament for another vote in just a few weeks. It's a bit silly, but worth watching:

If you're in the EU and this kind of clueless, dangerous regulating concerns you, speak out now. If you're not in the EU, it still helps to speak out about this. Contact the EU Parliament or just spread the word so that others know just how much damage the EU may do to the internet if this moves forward.

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posted at: 12:30am on 29-Aug-2018
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US Trade Rep Appears To Misreport Its Own Trade Agreement To Include Copyright Extension

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Soooooooo, you've probably heard the news on Monday about how the Trump adminstration had struck a preliminary trade agreement with Mexico to replace NAFTA. Most of the attention over the deal has to do with the lack of Canada being a part of it, with Mexico making it clear it still thought that this was a new deal with both the US and Canada and President Trump repeatedly acting as if this deal was a "take it or leave it" deal for Canada, and if they left it, it would just be US and Mexico.There will, of course, be plenty of time to dig into the details of what's in the actual agreement, but on stuff that matters to us, it already looks bizarre. The USTR put out a "fact sheet" about the intellectual property part of the agreement and it's causing quite a bit of consternation. In particular, it claims that copyright will be extended to life+75 years. Literally no one has been asking for this. While the movie and recording industries have pushed to extend copyrights in the past, this time around, they more or less acknowledged that it was a bridge too far to keep extending copyrights this long, and some have even expressed a willingness to shorten copyright terms.But there's been a lot of confusion about what the "life+75 years" even means here -- and it now seems quite likely that the USTR simply misunderstood its own agreement (yes, really). Current in the US, for works made for hire or corporate works, copyright lasts 95 years, and for those made by individuals, it's life+70 years. In Mexico, it's been an upward ratchet from life+50 years, to life+75 years, to life+100 years as of 2003. There were some stories that during TPP negotiations, Mexico had pushed for life+100 years in the US as well, but that seemed like a non-starter.So why would the USTR give an okay for life+75 years when basically no one in the US is still pushing for such a thing, and in fact seem to be in general agreement that, if anything, the term should go in the other direction? Either the USTR negotiators have no idea what they're doing (possible!), don't realize why this is a big deal (also possible) or are misreporting what's actually in the agreement. It appears the last one is likely. While the USTR told reporters on a call that they absolutely mean extending copyright to life+75 years, after that, USTR representatives started claiming that this is not an extension of copyright, but was merely supposed to be setting the floor on copyright terms of 75 years, not "life plus 75 years," in which case copyright wouldn't change in either country. But, because this administration appears to be so clueless, someone at the USTR may have taken this news and mistakenly claimed it was now life plus 75, rather than a 75 year floor.This does not inspire very much confidence in this USTR.Either way, if this really is an attempt to extend copyright, at some point this would need to come back to Congress to change the law, and that might be a pretty big fight on their hands, no matter how what the administration foolishly agreed upon in this preliminary agreement.Other aspects of the IP section are also troubling, as it all seems focused on the belief that more draconian patent, copyright and trademark laws and enforcement are what's most desirable:

The new IP Chapter will:
  • Require full national treatment for copyright and related rights so United States creators are not deprived of rights in foreign markets that domestic creators receive.
  • Provide strong patent protection for innovators by enshrining patentability standards and patent office best practices to ensure that United States innovators, including small- and medium-sized businesses, are able to protect their inventions with patents. 
  • Include strong protection for pharmaceutical and agricultural innovators. 
  • Extend the minimum copyright term to 75 years for works like song performances and ensure that works such as digital music, movies, and books can be protected through current technologies such as technological protection measures and rights management information. 
  • Establish a notice-and-takedown system for copyright safe harbors for Internet service providers (ISPs) that provides protection for IP and predictability for legitimate technology enterprises who do not directly benefit from the infringement, consistent with United States law.
  • Provide important procedural safeguards for recognition of new geographical indications (GIs), including strong and comprehensive standards for protection against issuances of GIs that would prevent United States producers from using common names. 
  • Enhance provisions for protecting trademarks, including well-known marks, to help companies that have invested effort and resources into establishing goodwill for their brands. 
  • Includes 10 years of data protection for biologic drugs and expanded scope of products eligible for protection.
The "full national treatment" details will be interesting to see, but it looks like an attempt to backdoor in a performance right (which most other countries have, but the US has mostly avoided) for musicians. The various "strong protection" lines about patents is problematic, as that generally means more patent trolling. And the biologics data protection stuff was a key point of disagreement in the TPP negotiations, with the US pushing for longer terms, and other countries (such as Australia) pushing strongly for shorter terms. The whole "data protection for biologics" is a way of locking up drugs that could save lives even though they don't have patent protection. Is a dangerous idea, but unfortunately, the USTR remains the home of people who only want to expand protectionism, rather than actually supporting competition.In the end, the details here really matter a lot -- and we don't have them. Furthermore, this administration has an extensive history of not presenting things particularly clearly or accurately. But as a first pass, these "key highlights" the USTR put out suggest an agreement that is out of touch and dangerous for American innovation. Congress should do its job, as outlined in the Commerce Clause, and not let this agreement go forward if it matches what the USTR is now claiming.

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posted at: 12:30am on 28-Aug-2018
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Fugitive Fraudster Who Demanded Half Of Facebook Arrested After Three Years On The Run

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It's been a while since we last wrote about Paul Ceglia. If you don't recall, way back in 2010, Ceglia suddenly claimed that years earlier, he had hired Mark Zuckerberg to do some software development, and bizarrely (and literally unbelievably), that part of the contract for Zuck to work on Ceglia's project... was an agreement to hand over 50% of Facebook, which didn't even exist yet. Making it more ridiculous, Ceglia then claimed some weird interest amounts, and therefore was demanding ownership of 84% of Facebook. The whole thing was nonsensical, and while Zuckerberg admitted he had done some work for Ceglia prior to starting Facebook, nothing about the supposed contract made any sense at all. Beyond the bizarre nature of the contract Ceglia claimed he had with Zuckerberg, it quickly became clear that other evidence Ceglia presented, including purported emails, didn't look real.A year later, during the discovery process in the lawsuit, the actual original contract was found and it didn't mention Facebook at all, just as most people assumed. Instead, it became clear that Ceglia doctored their contract. Ceglia tried, weakly, to claim that even though the original was found on his computer during discovery, that it was actually Photoshopped and planted by Facebook. As you might imagine, literally no one believed that. It also probably didn't help that he kept some of the details of his plan in an email account called GetZuck.Finally, in 2012, Ceglia was arrested for fraud. He was set to go to trial in 2015 when he disappeared -- apparently cut off his ankle bracelet and disappeared with his family. Late last week, however, it was reported that he had been found and arrested in Ecuador and was likely to be sent back to the US shortly.I guess it's hard to just disappear in the age of Facebook. Even if you pretend to own a giant chunk of it.

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posted at: 12:30am on 28-Aug-2018
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This Week In Techdirt History: August 19th - 25th

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Five Years AgoOnce in a while, when evens really heat up in a given week, we skip the five/ten/fifteen-year retrospective and focus in on the big events — and this is one of those times, with the NSA spying debacle elevating to another level this week in 2013.Firstly, hings heated up on the other side of the Atlantic, with the UK government detaining David Miranda and seizing all his electronics and telling him he'd go to jail if he didn't turn over his passwords in a blatant act of intimidation. While the UK Home office claimed the detention was fully justified, a US official told Reuters that it was done to send a message. That admission was buried in a report about another disturbing action by the UK: forcing The Guardian to destroy hard drives with info from Snowden — an order that came directly from the Prime Minister. On top of all that, a new and questionable revelation in The Independent prompted Edward Snowden to accuse the UK government of leaking additional documents itself to make him look bad.Back in the US, we were getting a closer look at the loopholes that allowed the NSA to withhold information from Congress, and a glimpse of the agency culture that encouraged deception. Defenders threw up their hands and claimed "we didn't mean it", and got some help from the guy who wrote legal memos defending the CIA torture program. Then the agency revealed that it performs a staggering 20-million database queries per month. It seemed that if some of these more serious leaks had come out a bit earlier, a bill to defund the NSA may have stood more of a chance, while a new bill was introduced to make the agency pay for every abuse of power.And then things continued to escalate. A new leak showed that the NSA truly could spy on almost anything and set its own filters. The EFF's success in getting a key FISA court ruling declassified revealed that the NSA repeatedly lied to the court, too. Documents showed that a program continued for three years after it was declared unconstitutional, right after tech companies (who the NSA was paying for their help) got immunity in warrantless wiretapping cases. And during the 2002 Olympics, the NSA and FBI spied on every single email in Salt Lake City.Meanwhile, the US still couldn't even figure out what exactly Snowden took, but it could put together a surveillance review board packed with Washington insiders and NSA sympathizers. By the end of the week, the agency was fumbling to accuse the Wall Street Journal of misleading the public, but then finally (buried on a Friday night in the hopes of avoiding coverage) admitted that yes, there had been a lot of intentional abuses of the system (in contrast to the many denials of this idea).And the circus wasn't over yet — tune in next week...

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posted at: 12:29am on 26-Aug-2018
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Nickelodeon Is Opposing A 12 Year Old New Zealand Girl's 'Slime' Trademark For Some Reason

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Viacom has decided to take its trademark bullying game international and possibly against the most sympathetic target it could find. Nickelodeon, owned by Viacom, has decided to oppose the trademark registration of a 12 year old girl in New Zealand, claiming its trademark on the word "slime" is too important. Katharina Weischede has managed to build up an online brand in New Zealand for producing and playing with "slime." She made a business out of it and attempted to trademark "slime princess", only to find Nickelodeon opposing it.

What started off as a hobby had by late 2017 become a home-based business called "Slime Princess". Now known by her friends, family and even strangers as the "Slime Princess", she eventually decided to trademark her business's name. However, Katharina was met with opposition by Viacom, the owners of children's entertainment channel Nickelodeon. After applying to trademark "Slime Princess" earlier this year, Katharina received a letter from Viacom opposing the trademark. According to the New Zealand Intellectual Property office, Viacom has trademarked the word "slime".
Everything about this is absurd. We can start with how unlikely it would be for any confusion to exist between Weishede and Nickelodeon, move on to the very generic and broad mark that Viacom apparently holds in New Zealand, take a turn to point out that Weishede's business has something like $20k in valuation, and finish off by simply pointing out the PR nightmare that is the parent company of a kids' network battling a 12 year old at the trademark office.The good news is that Weishede appears to be a very bright young woman.
Aside from running her business, Katharina is interested in becoming a human rights lawyer.This case was "a great start to show people that you fight for what you believe in", she said. "I wanted to fight because I made this and it's not just about the slime. It's the brand itself. People don't only come for the slime, they go and see me."
She has set up a page to collect money for the legal fees to fight this. Her family is also backing her and she is working with a lawyer, who is hinting at the fact that Viacom certainly didn't have to go the route of fighting a trademark battle with a 12 year old.
Katharina's lawyer, Alex Lee, said the 12-year-old had worked very hard to build up her profile and her brand."This is a young girl's dream," he said. "If in fact the other party wanted to find a way to work with her that's great but certainly, we wouldn't want to think the idea is to prevent a young teenager who already has a profile with a particular brand from being denied her rights."
And finding a way to work with her is exactly what Viacom should be doing here, or it risks tarnishing the reputation Nickelodeon has worldwide over the "threat" of a bright 12 year old young woman. Best of luck winning that PR battle.

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posted at: 12:29am on 25-Aug-2018
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Research Paper Shows Militarized SWAT Teams Don't Make Cops -- Or The Public -- Any Safer

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A study has been released confirming what many have suspected: militarization of law enforcement doesn't make communities safer, has zero effect on officer safety, and is rarely deployed as advertised when agencies make pitches for the acquisition of military gear.

The most frequent recipient of military tools and training are SWAT teams. Professor Jonathan Mummolo's research -- published by the National Academy of Sciences -- gained unprecedented access to SWAT deployment numbers, thanks to a public records request and a Maryland state law requiring documentation of every SWAT raid performed. (That law was allowed to expire by legislators who apparently felt it provided too much transparency and accountability.)

With these numbers, Mummolo was able to compare SWAT deployments to other stats, as well as see just how often SWAT teams were deployed to handle dangerous situations like robberies, shootings, hostage-taking, etc. What he discovered was, sadly, unsurprising. Police officials talk about the necessity of SWAT teams and military gear using references to barricaded suspects, terrorist attacks, active shooters…. pretty much anything but what they actually use them for. From the paper [PDF]:

[R]oughly 90% of SWAT deployments in that state over 5 fiscal years were conducted to serve search warrants. Previous work has shown that the use of SWAT teams to serve warrants, a practice which escalated as a result of the war on drugs, is an extremely disruptive event in the lives of citizens and often involves percussive grenades, battering rams, substantial property damage, and in rare cases deadly altercations stemming from citizens’ mistaken belief that they are experiencing a home invasion. [...] less than 5% of deployments involved a “barricade” scenario, which typically involves an armed suspect refusing to surrender to police. Violence to people and animals is rare, and gun shots are fired 1.2% of the time—roughly 100 deployments during this period. While the data suggest that indiscriminate violence is less common than some anecdotal reports suggest, they also show that the vast majority of SWAT deployments occur in connection with non-emergency scenarios, predominately to serve search warrants.

Similarly unsurprising is data showing SWAT teams are deployed far more often in areas with a higher concentration of African American residents. Mummolo's research shows a 10% increase in African American population resulted in a 10.5% increase in SWAT deployments.

All the gear obtained by police agencies to make officers safer doesn't seem to have an effect on officer safety. The data shows negligible effects on officer injuries or deaths. Despite being touted as essential tools to combat a supposed increase in criminal firepower, SWAT teams and their military gear spend more time serving warrants than facing dangerous situations. Maryland SWAT stats -- compared against other data reported by law enforcement agencies -- results in this conclusion:

[T]here is no evidence that acquiring a SWAT team lowers crime or promotes officer safety.

Surveys conducted by Mummolo show SWAT teams -- and police militarization in general -- have a negative effect on public perception. SWAT teams make the places they're frequently deployed seem less safe, even if crime stats don't back that up. Dressing up in military gear increases distrust of the law enforcement agency -- something especially pronounced in African American respondents.

Mummolo's conclusion, based on stats supplied by law enforcement agencies, is devastating. And it's likely to be ignored by every law enforcement agency in Maryland.

Given the concentration of deployments in communities of color, where trust in law enforcement and government at large is already depressed, the routine use of militarized police tactics by local agencies threatens to increase the historic tensions between marginalized groups and the state with no detectable public safety benefit. While SWAT teams arguably remain a necessary tool for violent emergency situations, restricting their use to those rare events may improve perceptions of police with little or no safety loss.

SWAT teams arose out of a need for elite response units to send to especially dangerous situations. It's quickly devolved into nothing more than a sideshow for warrant service -- an excuse to treat citizens like enemy combatants while needlessly escalating situations until they can justify the absurdly overblown tactics and weaponry being deployed.

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Techdirt Podcast Episode 179: Emoji & The Law

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Have you ever thought about the legal issues surrounding emoji? Don't worry, most people haven't. But they are myriad and interesting, with roots nearly two decades ago following the emergence of emoticons — and two people who definitely have thought a lot about it are Eric Goldman and Gabriella Ziccarelli, who join us on this week's episode to talk about the various intersections of emoji and the law.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.


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Researcher Says Police Body Cameras Are An Insecure Mess

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The promise of transparency and accountability police body cameras represent hasn't materialized. Far too often, camera footage goes missing or is withheld from the public for extended periods of time.

So far, body cameras have proven most useful to prosecutors. With captured footage being evidence in criminal cases, it's imperative that footage is as secure as any other form of evidence. Unfortunately, security appears to be the last thing on body cam manufacturers' minds.

Josh Mitchell, a consultant at the security firm Nuix, analyzed five body camera models from five different companies: Vievu, Patrol Eyes, Fire Cam, Digital Ally, and CeeSc. The companies all market their devices to law enforcement groups around the US. Mitchell's presentation does not include market leader Axon—although the company did acquire Vievu in May.

In all but the Digital Ally device, the vulnerabilities would allow an attacker to download footage off a camera, edit things out or potentially make more intricate modifications, and then re-upload it, leaving no indication of the change. Or an attacker could simply delete footage they don't want law enforcement to have.

This is already bad news. We've already seen some evidence that officers have altered/destroyed footage. This attack vector allows almost anyone to do the same thing, all without leaving a trace of intrusion. But the flaws run deeper than this. According to Mitchell's research, some cameras can have their signals intercepted, allowing criminals to locate law enforcement officers or simply eavesdrop on recordings as they occur. It's not just a matter of criminals eluding cops. Hijacking signals obviously has a serious impact on officer safety.

And this is only the problem created by the cameras themselves. Every camera has to interact with another computer system to upload footage. In many cases, they're linked to cloud services as well, which introduce further vulnerabilities. Attackers could use body cams to deliver malicious payloads to law enforcement computer systems or the cloud services used to store recordings.

But underneath everything else runs this crucial part of the justice process: footage is evidence and evidence must be kept intact. Cameras and camera services simply aren't doing enough to prevent evidence tampering. The chain of evidence is relied on to ensure its integrity, but until these vulnerabilities are removed, body cam footage may as well be hearsay.

The bodycams don't have a cryptographic mechanism to confirm the validity of the video files they record either. As a result, when the devices sync with a cloud server or station PC, there's no way to guarantee that the footage coming off the camera is intact. "I haven’t seen a single video file that’s digitally signed," Mitchell says.

The good news is companies were alerted before Mitchell went public with his Defcon presentation. Most are implementing fixes, although a couple of smaller manufacturers refused to comment on the issues. The bad news is these fixes shouldn't have been necessary. The cameras and the services they rely on were put into service without many of these considerations being taken seriously. It appears they're no more secure than an off-the-shelf $30 webcam, even though they're only being sold to law enforcement agencies.

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Heaven Hill Distillery Knocks On Bob Dylan's Door Over His Heaven's Door Whiskey For Trademark Infringement

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Trademark disputes in the alcohol industries are often times absurd enough to make the comments section question whether everyone involved was simply drunk. While I'm sure the lawyers on all sides tend to be sober, every once in a while you read a claim in a big-boy legal document that makes you pause and wonder. And, then, sometimes the dispute centers around a public figure punning off his own notoriety, making the trademark claims extra ludicrous.Meet Bob Dylan. Bob used to be a counterculture folksinger hero that eschewed the trappings of materialism and sang as one of the original social justice warriors. Present day Bob sings songs on car commercials and owns a Whiskey brand. And, hey, Bob's allowed to make money, no matter how jarring this might be to those born decades ago. His Heaven's Door Whiskey is, sigh, allowed to exist. It's also allowed to fight back against the absurd trademark lawsuit brought by Heaven's Hill Distillery over its logo and trade dress.

Heaven Hill Distillery has filed a trademark infringement lawsuit against Heaven’s Door Spirits, a whiskey line co-owned by Dylan that was released earlier this year. The company's name is a reference to Dylan’s 1973 song Knockin' on Heaven’s Door.The lawsuit, filed Friday in U.S. District Court in Louisville, argues that the Bardstown-based company was founded by the Shapira family shortly after prohibition ended in the 1930s and has used the trademark for more than 80 years. A Heaven Hill attorney sent a cease-and-desist letter to Chicago-based Heaven’s Door in April, saying the start-up distillery’s use of its trademark “will create a likelihood of confusion” with the Kentucky bourbon brand's products. The letter specifically notes that Heaven's Door has introduced a “stacked" logo similar to the one used by Heaven Hill.
Dylan's company responded saying it didn't believe there would be any public confusion over the logos and trade dress and that it wasn't going to be making any of the changes requested. When it comes to these disputes, it's useful to actually put the entire products next to one another to see how similar they are. Simple logos can sometimes be squinted at and seen as similar, but on the question of confusion in the marketplace you really have to put the products side by side and imagine yourself in a store trying to decide between the two. I've done that for you below.
It's frankly hard to imagine how anyone is going to be confused between these two liquor brands. The bottle shape is different. The label placement is different. The fonts aren't the same and neither are the color schemes for the labels. Even the logos themselves aren't particularly similar, stacked or otherwise. And, of course, there is the mockup of the ironwork sculpting on Dylan's bottle, modeled after his own iron sculpting artwork. Even the name of the brand is a reference to Dylan. How any of this adds up to market confusion is beyond me.And, yet, Heaven Hill essentially wants to scuttle Dylan's whiskey business altogether.
The lawsuit is asking a judge to grant a temporary injunction prohibiting Heaven’s Door from producing, distributing or marketing until the lawsuit is concluded. In addition, attorneys for Heaven Hill want a judge to force Heaven’s Door to “deliver up for destruction or other disposition all goods, packaging, containers, advertisements, promotions, signs, displays” with their company name.The suit is also seeking unspecified monetary damages.
Somehow, despite this suit, I would guess that Dylan's whiskey will continue to be released.

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Before You Talk About How Easy Content Moderation Is, You Should Listen To This

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For quite some time now, we've been trying to demonstrate just how impossible it is to expect internet platforms to do a consistent or error-free job of moderating content. Especially at the scale they're at, it's an impossible request, not least because so much of what goes into content moderation decisions is entirely subjective about what's good and what's bad, and not everyone agrees on that. It's why I've been advocating for moving controls out to the end users, rather than expecting platforms to be the final arbiters. It's also part of the reason why we ran that content moderation game at a conference a few months ago, in which no one could fully agree on what to do about the content examples we presented (for every single one there were at least some people who argued for keeping the content up or taking it down).On Twitter, I recently joked that anyone with opinions on content moderation should first have to read Professor Kate Klonick's recent Harvard Law Review paper on The New Governors: The People, Rules and Processes Governing Online Speech, as it's one of the most thorough and comprehensive explanations of the realities and history of content moderation. But, if reading a 73 page law review article isn't your cup of tea, my next recommendation is to spend an hour listening to the new Radiolab podcast, entitled Post No Evil.I think it provides the best representation of just how impossible it is to moderate this kind of content at scale. It discusses the history of content moderation, but also deftly shows how impossible it is to do it at scale with any sort of consistency without creating new problems. I won't ruin it for you entirely, but it does a brilliant job highlighting how as the scale increases, the only reasonable way to deal with things is to create a set of rules that everyone can follow. And then you suddenly realize that the rules don't work. You have thousands of people who need to follow those rules, and they each have a few seconds to decide before moving on. And as such, there's not only no time for understanding context, but there's little time to recognize that (1) content has a funny way of not falling within the rules nicely and (2) no matter what you do, you'll end up with horrible results (one of the examples in the podcast is one we talked about last year, explaining the ridiculous results, but logical reasons, for why Facebook had a rule that you couldn't say mean things about white men, but could about black boys).The most telling part of the podcast is the comparison between two situations, in which the content moderation team at Facebook struggled over what to do. One was a photo that went viral during the Boston Marathon bombings a few years ago, showing some of the carnage created by the bombs. In the Facebook rulebook was a rule against "gore" that basically said you couldn't show a person's "insides on the outside." And yet, these photos did that. The moderation team said that they should take it down to follow the rules (even though there was vigorous debate). But, they were overruled by execs who said "that's newsworthy."But this was then contrasted with another viral video in Mexico of a woman being beheaded. Many people in Mexico wanted it shown, in order to document and alert the world of the brutality and violence that was happening there, which the government and media were mostly hiding. But... immediately people around the world freaked out about the possibility that "children" might accidentally come across such a video and be scarred for life. The Facebook content moderation team said leave it up, because it's newsworthy... and the press crushed Facebook for being so callous in pushing gore and violence... so top execs stepped in again to say that video could no longer be shown.As the podcast does a nice job showing, these are basically impossible situations, in part because there are all different reasons why some people may want to see some content, and others should not see it. And we already have enough trouble understanding the context of the content, let alone the context of the viewer in relation to the content.I've been seeing a microcosm of this myself in the last few days. After my last post about platforms and content moderation around the Alex Jones question, Twitter's Jack Dorsey was kind enough to tweet about it (even though I questioned his response to the whole mess). And, so for the past week or so I've been getting notified of every response to that tweet, which seems pretty equally divided between people who hate Alex Jones screaming about how Jack is an idiot for not banning Jones and how he's enabling hate mongers, and people who love Alex Jones screaming about how Jack is silencing dissent and how he's a liberal asshole silencing conservatives.And no matter where on the spectrum of responses you may fall (or even totally outside of that spectrum), it should come down to this: we shouldn't be leaving these decisions up to Jack. Or Mark. Yes, those companies can and must do a better job, but what people fail to realize is that the job we're asking them to do is literally an impossible one. And that's why we really should be looking to move away from the situation in which they even need to be doing it. My solution is to move the controls outwards to the ends, allowing individuals and third parties to make their own calls. But there may be other solutions as well.But something that is not a solution is merely expecting that these platforms can magically "get it right."

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As Press Freedom Dies In Turkey, Twitter Is There To Help Dig Its Grave

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Turkish president Recep Erdogan figures the best critic is a silenced critic. Determined to "earn" the respect of people worldwide, Erdogan and his government have engaged in unprecedented censorship. This goes far beyond the punishment of its own citizens. Erdogan has tried to secure charges and prosecutions from other governments against their own citizens for having the temerity to not take him as seriously as he takes himself.

Erdogan takes down newspapers and platforms with equal aplomb. He does this to stop things like the following from circulating:

It doesn't work, of course. Nothing gets censored worldwide and whatever censorship hits home can be circumvented. But of all the internet targets, Twitter is Erdogan's absolute favorite. The Committee to Protect Journalists has done the math. Its excellent article on Erdogan's censorship activities makes it clear that all other countries are merely pretenders to the throne when it comes to talking Twitter into doing their dirty work.

Over 1.5 million tweets have been withheld in Turkey by Twitter, thanks to Turkish government demands. Frequently targeted by removal requests are citizens who would normally be afforded extra speech protections in countries not run by a thin-skinned thug. And an American company playing ball with an authoritarian doesn't leave much room for recourse.

When CPJ reviewed a Buzzfeed News database of over 1,700 accounts withheld in one or more countries, along with court orders uploaded by tech companies to Harvard University's Lumen database, tweets, Twitter lists, and news reports, it was able to identify at least 59 Twitter accounts that belong to journalists and media outlets censored using the CWC tool in Turkey. As of late July, those 59 accounts had a combined following of over six million, in a country of about 11 million Twitter users.

Journalists whose accounts have been censored by CWC [country withheld content]requests told CPJ that Twitter is inconsistent with its compliance with such requests and complained about the lack of remediation options.

Journalists tweeting about the decline of press freedoms in Turkey are seeing their tweets removed by a compliant Twitter. And this is all Twitter has to say about its compliance in the decline of press freedoms in Turkey:

Colin Crowell, Twitter's head of global public policy, told CPJ, "If [we] don't use CWC, then the alternative is to remove [the content] globally [then] nobody can see it."

But that simply isn't true. Twitter has to know there's a third option: no removal at all. Even if the request is lawful in Turkey, Turkey's speech laws are terrible. Twitter doesn't have to make things worse by letting the Turkish government steamroll critics via removal requests. Sure, that means it might lose access to an entire country, but it shouldn't be so willing to be an extension of an abusive government.

It's not just a Twitter problem. Google's decision to help build the Chinese government a censored search engine is unacceptable, no matter how many more millions of users Google might reach.

Turkey's government may drive the content removal business on Twitter, but there's censorship everywhere from authoritarian regimes being aided by US companies that should act as a bulwark against tyranny. At the very least, there should be constant pushback against demands like these, rather than acquiescence under the disingenuous theory that blocking content worldwide is the only alternative.

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posted at: 12:26am on 21-Aug-2018
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Express Homebuyers Wins Its Bid To Cancel Competitors 'We Buy Houses' Trademark

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We've often made the point in the past that much of the trademark legal strife and bullying that occurs throughout the country ought to be squarely blamed on a USPTO that can't be bothered to put much thought into the trademarks it approves. All too often, the Trademark Office acts as a mindless rubber stamping facility, pushing through the application paperwork without thinking about the broader consequences of its approvals, nor the legal minutia involved into what makes a term a valid trademark. That bureaucratic lethargy is precisely how you get trademark bullies wielding trademarks that should never have been granted. And, because trademark bullying generally works, it's rare that anyone outside the USPTO is actually forced to clean up this mess it created.But, on rare occasions, sanity puts a win up on the board. Such is the case with Express Homebuyers USA of Virginia, which defeated WBH Marketing Inc.'s trademark suit in which the latter claimed infringement based on its registered trademark for the phrase "We Buy Houses."

In a thorough and well-reasoned decision, Judge T.S. Ellis, III, of the Eastern District of Virginia, concluded that the federal trademarks “We Buy Houses” and “Webuyhouses.com” are generic, are not protected under trademark law, and therefore should be canceled. The court found that the phrase “we buy houses” has been used in the real estate industry since as early as 1898 in millions of newspapers and advertisements. That evidence, coupled with other evidence and the testimony of Express Homebuyer’s CEO Brad Chandler, was “overwhelming and unrefuted.”Finding that the marks are generic and should be canceled was “logical” according to Judge Ellis because “allowing one member [of the real estate industry] to have exclusive use of the phrase ‘we buy houses’ would be the equivalent of allowing a professional football team to trademark ‘we play football’ or a fast-food chain to trademark ‘we sell burgers,’” which are phrases that should be available for all to use.
First, if the name T.S. Ellis is ringing in your ears, yes, he's the judge presiding over the Paul Manafort trial. That isn't relevant to this case, other than being an encouraging sign that the judge overseeing Manafort's case has some grasp of common sense. Beyond that, this case should be a wonderful counterexample for any proponents of the USPTO's staff when it comes to the job they do in approving trademarks. To approve "We Buy Houses" for the real estate market as a trademark requires such a dearth of cognition as to undermine every other bit of work that office does. As Ellis points out, allowing one entity in real estate to lock up the phrase would enable the exact kind of bullying that WBH Marketing subsequently engaged in by going after Express Homebuyers for daring to say that it too, yes, buys homes.If the ruling had gone the other way, it would have been an unmitigated disaster for the real estate industry writ large.
The ruling is significant because, if Mr. Brandt’s company prevailed, thousands of real estate investors across the country could have been prohibited from using the vitally important phrase “we buy houses” in their marketing and advertising materials.Having concluded that the trademarks “We Buy Houses” and “Webuyhouses.com” were generic and should be canceled, Judge Ellis also dismissed WBH Marketing’s claim that Express Homebuyers infringed on the trademarks. Judge Ellis thus threw out WBH’s multimillion dollar damages claim against Express Homebuyers.
This country is practically starving for this kind of result for trademark bullies. Too often these bullies are allowed to cut and run from trademark suits when it's clear their own trademarks are in danger of invalidation. Why in the world WBH Marketing elected to let this thing get to a ruling is completely beyond me, but invalidating bad trademarks that the USPTO is only too happy to approve can't be fully a function of bullying hubris.But for this case, at least, the right outcome was achieved.

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

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Five Years AgoThis week in 2013, the White House incredibly put James Clapper in charge of independent NSA review, then tried to change its tune a bit when people rightly pointed out that this was insane. Meanwhile, Rep. Justin Amash discovered that the House Intelligence Committee had withheld important NSA documents from the rest of Congress, and that the White House knew it. Then, the latest leak revealed that the NSA abused the rules to spy on Americans thousands of times every year — since there was no real oversight, the FISC court just relied on the NSA's own statements to determine what was legal, and agents were told to withhold information from those in charge of oversight. Senators Wyden and Udall hinted that this was just the tip of the iceberg, while NSA defenders claimed the abuses were evidence of the system working well and that the numbers were impressive compared to the amount of spying the NSA does.Ten Years AgoThis week in 2008, Italy tried and failed to block all access to The Pirate Bay, with the predictable result of a spike in Italian traffic to the site. Universities were realizing that the RIAA was taking advantage of them in its crusade against file-sharing students, while one teenager targeted in a lawsuit managed to get damages reduced with an "innocent infringement" defense. Nintendo was freaking out about memory cards for the Nintendo DS, while Tiffany was continuing its futile efforts to hold eBay accountable for counterfeit products by appealing a court ruling that said they weren't (and this same week, a Belgian court was ruling the same thing).Fifteen Years AgoThis week in 2003, eBay was only just starting to become the ecommerce platform of choice with folks setting up entire businesses on the site. ISPs were the ones fighting back against the RIAA, along with one accused file-sharer who was hitting the agency with a countersuit arguing that sharing does not equal distribution. There were early rumblings of "personalization" as the future of search engines, and the fairly new technology of MMS picture messages was being put to use for networked security cameras and medical emergencies. And nearly seven years before the iPad, there were lots of tablet computers hitting the market, but nobody wanted them.

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As Academic Publishers Fight And Subvert Open Access, Preprints Offer An Alternative Approach For Sharing Knowledge Widely

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The key idea behind open access is that everyone with an Internet connection should be able to read academic papers without needing to pay for them. Or rather without needing to pay again, since most research is funded using taxpayers' money. It's hard to argue against that proposition, or that making information available in this way is likely to increase the rate at which medical and scientific discoveries are made for the benefit of all. And yet, as Techdirt has reported, academic publishers that often enjoy profit margins of 30-40% have adopted a range of approaches to undermine open access and its aims -- and with considerable success. A recent opinion column in the Canadian journal University Affairs explains how traditional publishers have managed to subvert open access for their own benefit:

An ironic twist to the open-access movement is that it has actually made the publishers richer. They've jumped on the bandwagon by offering authors the option of paying article processing charges (APCs) in order to make their articles open access, while continuing to increase subscription charges to libraries at the institutions where those authors work. So, in many cases, the publishers are being paid twice for the same content -- often charging APCs higher than purely open access journals.
Another serious problem is the rise of so-called "predatory" open access publishers that have distorted the original ideas behind the movement even more. The Guardian reported recently:
More than 175,000 scientific articles have been produced by five of the largest "predatory open-access publishers", including India-based Omics publishing group and the Turkish World Academy of Science, Engineering and Technology, or Waset.But the vast majority of those articles skip almost all of the traditional checks and balances of scientific publishing, from peer review to an editorial board. Instead, most journals run by those companies will publish anything submitted to them -- provided the required fee is paid.
These issues will be hard, if not impossible, to solve. As a result, many are now looking for a different solution to the problem of providing easy and cost-free access to academic knowledge, this time in the form of preprints. Techdirt reported earlier this year that there is evidence the published versions of papers add very little to the early, preprint version that is placed online directly by the authors. The negligible barriers to entry, the speed at which work can be published, and the extremely low costs involved have led many to see preprints as the best solution to providing open access to academic papers without needing to go through publishers at all.Inevitably, perhaps, criticisms of the idea are starting to appear. Recently, Tom Sheldon, who is a senior press manager at the Science Media Centre in London, published a commentary in one of the leading academic journals, Nature, under the headline: "Preprints could promote confusion and distortion". As he noted, this grew out of an earlier discussion paper that he published on the Science Media Centre's blog. The Science Media Centre describes itself as "an independent press office helping to ensure that the public have access to the best scientific evidence and expertise through the news media when science hits the headlines." Its funding comes from "scientific institutions, science-based companies, charities, media organisations and government". Sheldon's concerns are not so much about preprints themselves, but their impact on how science is reported:
I am a big fan of bold and disruptive changes which can lead to fundamental culture change. My reading around work on reproducibility, open access and preprint make me proud to be part of a scientific community intent on finding ways to make science better. But I am concerned about how this change might affect the bit of science publication that we are involved with at the Science Media Centre. The bit which is all about the way scientific findings find their way to the wider public and policymakers via the mass media.
One of his concerns is the lack of embargoes for preprints. At the moment, when researchers have what they think is an important result or discovery appearing in a paper, they typically offer trusted journalists a chance to read it in advance on the understanding that they won't write about it until the paper is officially released. This has a number of advantages. It creates a level playing field for those journalists, who all get to see the paper at the same time. Crucially, it allows journalists to contact other experts to ask their opinion of the results, which helps to catch rogue papers, and also provides much-needed context. Sheldon writes:
Contrast this with preprints. As soon as research is in the public domain, there is nothing to stop a journalist writing about it, and rushing to be the first to do so. Imagine early findings that seem to show that climate change is natural or that a common vaccine is unsafe. Preprints on subjects such as those could, if they become a story that goes viral, end up misleading millions, whether or not that was the intention of the authors.
That's certainly true, but is easy to remedy. Academics who plan to publish a preprint could offer a copy of the paper to the group of trusted journalists under embargo -- just as they would with traditional papers. One sentence describing why it would be worth reading is all that is required by way of introduction. To the extent that the system works for today's published papers, it will also work for preprints. Some authors may publish without giving journalists time to check with other experts, but that's also true for current papers. Similarly, some journalists may hanker after full press releases that spoon-feed them the results, but if they can't be bothered working it out for themselves, or contacting the researchers and asking for an explanation, they probably wouldn't write a very good article anyway.The other concern relates to the quality of preprints. One of the key differences between a preprint and a paper published in a journal is that the latter usually goes through the process of "peer review", whereby fellow academics read and critique it. But it is widely agreed that the peer review process has serious flaws, as many have pointed out for years -- and as Sheldon himself admits.Indeed, as defenders note, preprints allow far more scrutiny to be applied than with traditional peer review, because they are open for all to read and spot mistakes. There are some new and interesting projects to formalize this kind of open review. Sheldon rightly has particular concerns about papers on public health matters, where lives might be put at risk by erroneous or misleading results. But major preprint sites like bioRxiv (for biology) and the upcoming medRxiv (for medicine and health sciences) are already trying to reduce that problem by actively screening preprints before they are posted.Sheldon certainly raises some valid questions about the impact of preprints on the communication of science to a general audience. None of the issues is insurmountable, but it may require journalists as well as scientists to adapt to the changed landscape. However, changing how things are done is precisely the point about preprints. The present academic publishing system does not promote general access to knowledge that is largely funded by the taxpayer. The attempt by the open access movement to make that happen has arguably been neutered by shrewd moves on the part of traditional publishers, helped by complaisant politicians. Preprints are probably the best hope we have now for achieving a more equitable and efficient way of sharing knowledge and building on it more effectively.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Getting Worse: The Office Of Hawaiian Affairs Jumps Into The Aloha Poke Situation As Chicago Chain Stonewalls

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It's been a week or so since we last checked in on the Aloha Poke situation, so perhaps you were wondering how things were coming along with the Chicago chain that wasn't founded by Hawaiians attempting to bully native Hawaiian poke joints across the country out of using their own language and culture over trademark concerns. You will recall that Aloha Poke Co. had sent cease and desist notices to many poke restaurants that dared to use the ubiquitous Hawaiian term "Aloha" in their names, including to proprietors on the Hawaiian Islands themselves. That many operations throughout the country had been chugging along sharing this name and food culture without issue apparently didn't prevent Aloha Poke Co. from registering "Aloha Poke" as a trademark and then go the bullying route. The last touchstone in all of this was a hundreds-strong planned protest at the company's headquarters in Chicago, which indeed ended up happening.So, how have things gone since? Well, Aloha Poke Co. appears to be simply digging in its heels and trying to ride this storm out rather than backing down, but it's a strategy that doesn't appear to be working all that well. Just this week, the Office of Hawaiian Affairs, an organization that promotes and protects Hawaiian culture, has jumped into the fray, both voicing its displeasure at Aloha Poke Co.'s bullying and essentially filling up its homepage with news about the protests.

In a statement, OHA CEO Kamana’opono Crabbe described the attitude of OHA as “appalled” over the food chain’s trademarks, which uses culturally significant words from ‘lelo Hawai’i, the traditional native Hawaiian language.OHA also asserted that they were currently contacting prominent stakeholders to “discuss possible solutions” to the trademark controversy.The organisation went on to highlight the continuous “commercialisation and exploitation” of traditional Hawaiian culture that hinders attempts to preserve customs and languages in an appropriate manner.
As we've said in past posts, the concerns about cultural appropriation, particularly in light of the subsequent bullying, are valid and very real, but the better route to victory against Aloha Poke Co. is almost certainly legal arguments over its trademark more generally. Whatever you might think of this sort of cultural appropriation, it seems obvious to me that the United States government and its USPTO wing are not sure-fire candidates for swaying on arguments that big business isn't treating natives all that well. Backing that statement up for citation purposes is: history.Instead, we should be seeing as many or more arguments that the term "Aloha" is, as stated, ubiquitous and non-identifying, whereas the term "poke" simply refers to the goods sold at these establishments. Marrying a generic term with a name of a product you can't trademark obviously doesn't create a valid trademark.But none of that is to suggest that efforts to gin up anger over the appropriation side of this doesn't have a place in getting Aloha Poke Co. to reverse course on its bullying. Public shaming does indeed work and it's good to see that the company's current strategy of waiting out the anger simply isn't working.In other words: Dear Aloha Poke Co., it's probably time to cut your losses and issue a mea culpa.

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posted at: 12:25am on 18-Aug-2018
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Bitmovin Takes A Scorched Earth Approach To Patent Troll, Who Limps Away Quickly

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A few years back, e-commerce company Newegg decided to take something of a scorched earth approach to all of the various patent trolls that came after it: it would never settle with a patent troll. While many trolls rely on the fact that it's cheaper to settle than to fight in court (even if you win), Newegg did the longer term calculation, and recognized that even if it cost more to defeat trolls in court, by being very public with its stance in fighting it would likely scare off trolls from continuing to sue the company. It took a few years, but the strategy mostly worked. Trolls have mostly learned to steer clear of Newegg.Last year, Cloudflare decided to up the ante a bit on such a strategy. After a patent troll went after it, Cloudflare didn't just promise to fight back, it promised to effectively burn the patent troll into the ground. It set up a bounty looking for prior art on every patent held by that patent troll (Blackbird Technologies), and also filed ethics complaints against the lawyers who ran the company, arguing that they were pretending not to practice law when they clearly were. That strategy has resulted in an easy win over Blackbird in court while various Blackbird patents are being challenged.It appears that approach is inspiring other companies as well. Streaming infrastructure company Bitmovin's General Counsel Ken Carter (who, notably, used to work at Cloudflare) put up a blog post describing just how it dealt with a recent patent troll. After first pointing out that patents can be important, and noting that the company itself holds some patents, the post reminds everyone that it's possible to abuse the patent system.

Patent trolls tend to be at the bottom of the IP food chain. If the patents they held were really valuable, the patents would have already wound up in the hands of someone who could make the invention. These trolls behave like bullies, threatening companies actually servicing customers, hoping to pick up some quick cash. The troll knows about and takes advantage of the fact that it is cheaper for those companies to pay it off than to endure the cost of litigating the case. By contrast, patent holders who are making products for customers tend to be more rational. Sure, sometimes the likes of Apple, Google, Microsoft, and Samsung get one another involved in multi-year, multi-million dollar lawsuits, but for the most part these companies don't extort one another. It's a better use of their time to make products than to sue.
Bitmovin didn't just hit back at this patent troll: it promised a similar scorched earth approach to the one that Cloudflare took against Blackbird:
We threatened to counter sue the troll, win the case on the merits, and then seek recovery of our fees and costs from the troll and its lawyers. Further, we pledged that Bitmovin would, as a public service, reinvest any recovery in invalidating all of the troll's other patents. Through our initial investigation, we found the person behind the troll who had acquired some 15 patents originally held by a European technology company. This person then placed these patents in at least two other LLCs. In turn, those LLCs were asserting these patents in no fewer than 13 other lawsuits against defendants such as Sony, Microsoft, Cisco, Polycom, Blue Jeans Networks, and Motorola. Bitmovin pledged to use our recovery to assist those 13 companies and 6 other companies defending against the current patent in finding prior art and filing Inter partes Reviews at the US PTO's Patent Trial and Appeal Board to invalidate all of those patents.
How did that work out? Pretty well:
Without another word, the troll dismissed its lawsuit against us.
And the company hopes that other trolls will take notice:
Trolls beware. Bitmovin will continue to stand for innovation and a nuanced, balanced approach to intellectual property. We will stand up against intellectual property abuse and for our customers, our industry, and the Internet at large.
Of course, in that post, Bitmovin declined to name the troll. Though, it's not that hard to figure it out. The case was filed by Hertl media, whose only existence online is for the various patent troll lawsuits it filed at the end of June. Within 3 days, Hertl Media sued not just Bitmovin, but also Amazon, Cox Communications, Netflix, Comcast, Longtail Ad Solutions, and Telestream. One hopes that others on that list take a similar approach to Bitmovin, and they too might see the following neat results. With minimal effort in court (just a standard request for extra time to file a response), Hertl just walked away and the case was closed:


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posted at: 12:25am on 17-Aug-2018
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Comrade Brewing Gets Its 'Superpower' Trademark After Nonsense Opposition From The Wonderful Company

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Between the explosion in the craft beer industry and our pernicious ownership culture, the beer industry has enough of a trademark problem to regularly appear in our posts. While many of the disputes in the industry are generated by once-small breweries that have grown up and shed their permissive attitudes towards branding, just as many trademark disputes result from entities outside the industry attempting to pretend that the alcohol industries, if not craft beer specifically, are not markets all to their own. This lack of nuance occasionally pervades even within the USPTO, unfortunately.But sometimes the TTAB gets it right. Such is the case with Comrade Brewing, makers of its 'Superpower IPA' brew, for which the TTAB refused the opposition of The Wonderful Company, which makes fruit juices. At issue was the slogan for POM Wonderful juices: "Antioxidant Superpower."

In past cases, the board has held that wine and spirits are closely related to beer in the minds of consumers, but it said The Wonderful Co. had failed to show that a soft drink such as fruit juice had the same kind of connection. “Simply put, opposer has not submitted sufficient evidence that consumers are accustomed to encountering these goods under the same mark,” Judge Peter W. Cataldo wrote for a three-judge panel.“Particularly in light of the differences between the goods but also because the two marks had key differences in appearance,” Cataldo wrote, “the board sided with Comrade Brewing.”
This opposition was a loser on several grounds. The markets being different for each product is certainly the easiest to conceptualize. Customers looking for fruit juices are unlikely to wander into a store's craft beer section and find themselves irrevocably confused. As someone who has seen what pomegranate juice looks like, and as someone who has consumed an unholy quantity of IPAs, this opposition would be hilarious if it weren't so frustrating in the first place. For a small brewer to have to entertain this kind of clear bullying from a much larger company at the trademark office is plainly absurd.And, when you take into account the difference in the actual marks, it becomes all the more so. A beer named "Superpower IPA" and a slogan that says "Antioxidant Superpower" are simply unlikely to cause anything resembling confusion in the market. Everything else about the trade dress is also, of course, wildly different. David Lin, owner of Comrade Brewing, appears to be taking this all in stride.
“Operating this brewery has thrown us a lot of curveballs,” explains Lin. “If I’m being completely honest the potential confusion between antioxidant juice and craft beer was more surprising to me than the day someone crashed their truck through our front door. We’re going to laugh this one off over a couple of Superpowers.”
It's certainly an endearing attitude to have, but it should be obvious that the wasting of a non-competitor's time with this sort of thing ought to be worthy of punishment.

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Court Says CBP Likely Violating First Amendment By Forbidding Photography Of Publicly-Viewable Border Crossings

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Another (partial) win for the First Amendment, the ACLU, and American citizens. The Ninth Circuit Court of Appeals has overturned a decision forbidding the photography of CBP officers at border crossings. (h/t Mitra Ebadolahi)

The CBP seems to have a problem respecting the First Amendment rights (along with several other rights) of American citizens when engaged in its border patrolling and protecting. This same appeals court recently allowed the heavily-harassed citizens of an Arizona border town to move forward with their First Amendment lawsuit against the agency, ruling that the CBP acted arbitrarily when dealing with protesters and activists documenting checkpoint activity. The record clearly showed the CBP removed people it didn't like from its imaginary zone of exclusion while allowing other random citizens more aligned with the CBP's open harassment of American citizens to venture inside the ad hoc DMZ to harass citizens documenting harassment.

This lawsuit centers on allegations CBP officers confiscated cameras and phones of people documenting border checkpoint activity and destroyed photos and videos. Here are the narratives of the two plaintiffs, taken from the Appeals Court decision [PDF]:

On the afternoon of April 19, [Ray] Askins stood at the intersection of First Street and Paulin Avenue on the U.S. side of the border, near the shoulder of the streets and immediately in front of the park. He was approximately 50–100 feet from the exit of the secondary inspection area, and he had not crossed the border or otherwise passed through border security to reach his location. Standing in the street, Askins took three or four photographs of the exit of the secondary inspection area. Multiple CBP officers approached Askins on the street to demand he delete the photographs he had taken. When Askins refused, the officers threatened to smash his camera, then searched and handcuffed him, confiscated his property, and detained him inside a secondary inspection area building. Askins was released after approximately twenty-five to thirty-five minutes and his property was returned, at which time he discovered that CBP had deleted all but one of his photographs of the exit of the secondary inspection area.

[...]

[Christian] Ramirez observed male CBP officers at a security checkpoint below inspecting and patting down only female travelers. Concerned that the officers might be acting inappropriately, Ramirez observed the checkpoint from the bridge for ten to fifteen minutes and took approximately ten photographs with his cellphone camera. Ramirez and his wife were approached by men who appeared to be private security officers. The men ordered them to stop taking photographs. The officers also demanded their identification documents, which Ramirez refused to provide as they had already passed through border inspection. The officers radioed for backup as Ramirez and his wife walked away, and at the bottom of the bridge, Ramirez was met by five to seven CBP officers. The CBP officers questioned Ramirez, and, without Ramirez’s consent, a CBP officer confiscated Ramirez’s cellphone and deleted all of the photographs Ramirez had taken from the bridge. A U.S. Immigration and Customs Enforcement officer confiscated the Ramirezes’ passports and walked away, leaving Ramirez surrounded by the CBP officers. After ten to fifteen minutes, their documents were returned to them and the Ramirezes were allowed to leave.

Both plaintiffs allege the CBP's practices violate the First Amendment. They are not seeking to photograph the inside of buildings or other sensitive areas not visible to the public eye, but rather border checkpoints where inspections and questioning are performed in public, completely visible to passersby. The CBP somehow believes what happens in public can't be documented by the public.

The district court decided to take the CBP up on its irrational argument, tossing aside logic to embrace the agency's claims about the super-secret nature of national security activities performed out in the open, visible to the unadorned eye. The appeals court says this isn't the way things are done. The lower court should not have lifted the government's burden of proof onto its own shoulders and carried it home for it.

The district court found that the CBP policies survived strict scrutiny because of “the extremely compelling interest of border security” and the government’s general interest in “protecting United States territorial sovereignty.” To this, the government adds that the CBP policies serve compelling government interests in protecting CBP’s law enforcement techniques and the integrity of on-going investigations; protecting the privacy of travelers, suspects, and sensitive digital information; ensuring the safe and efficient operation of the ports of entry; and protecting against terrorist attacks. In conclusory fashion, the district court held that the policies were the least restrictive means of serving these interests.

These conclusions are too thin to justify judgment for the government on a motion to dismiss. [...] It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.

The decision does not hand the plaintiffs a complete victory. It does shift the burden of proof back on the government and instructs the lower court to allow the case to proceed to see if the government can actually offer up anything supporting its random time/place restrictions that border on total violation of established First Amendment principles. The appeals court seems inclined to believe the CBP cannot simply forbid photography of publicly-viewable enforcement activities by members of the public. We'll have to see what the lower court does on remand, considering it already granted the government a free pass once, because National Security > Established Constitutional Rights, apparently.

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posted at: 12:25am on 16-Aug-2018
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Video Games In Germany Can Now Maybe Kinda Sometimes Have Swastikas

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As you likely know, Germany has some very restrictive laws surrounding how and when Nazi iconography can appear in the country. This has resulted in a heavily-policed artistic community, particularly when it comes to video games, which has produced some fairly funny happenings about games accidentally going to Germany chock full of Nazi stuff and other funny happenings in which the game makers make a show of doing as little as possible to get around the law. In the realm of other media, such as movies, the German government has put in place a review process to make sure that the use of Nazi symbols furthers the artistic or historical accuracy of the entertainment. Video games have not had such a review system. And, look, on some level this sort of attempt by Germany to restrict the use of these hateful symbols is understandable. The kind of global embarrassment that comes with committing the worst genocide in history is the sort of thing that leaves a mark. But we've also pointed out that these German laws aren't so much stamping out fascist thought as they are putting the government's collective head in the sand as some kind of grand virtue signal to the planet.Which is why it's at least a tepid step forward that Germany has revised its position and will now allow Nazi iconography in some video games, some of the time, on a case by case basis.

The government has moved from a blanket ban on swastikas and Hitler moustaches to a case-by-case basis, which will be administered by the USK, Germany’s ratings board.The official release with the news gives the specifics:When games that depict symbols of unconstitutional organisations are submitted to the USK for an age rating, the USK committees can now assess them on a case-by-case basis to decide whether the ‘social adequacy clause’ (Sozialadäquanzklausel, as laid out in section 86, subsection (3) of the German Criminal Code) applies. In this context, ‘social adequacy’ means that symbols of unconstitutional organisations can be used in games in individual cases, as long as those symbols serve an artistic or scientific purpose, or depict current or historical events.
Again, the big shift here is actually one of cultural importance, which is the German government will now consider video games as an artistic form, which they undoubtedly are. Movies and television have had a similar review process in place for years, but games were left out. And, as the gaming art form continues to gain ground as the preferred entertainment medium, it was impossible for the German government to ignore this forever. So, while it seems odd to declare a victory in which more swastikas will be seen by the German public, this is much more to do with an acknowledgement of culture than cheering on the Third Reich.
Felix Falk, Managing Director of the German Games Industry Association, says:This new decision is an important step for games in Germany. We have long campaigned for games to finally be permitted to play an equal role in social discourse, without exception. Computer and video games have been recognised as a cultural medium for many years now, and this latest decision consistently cements that recognition in terms of the use of unconstitutional symbols as well.
It remains to be seen whether or not older games like Wolfenstein will resubmit the original forms of its games for inclusion in all of this, but at least the German government will no longer act as though it can pretend that Nazis were never a thing.

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Bruce Lee's Estate Gets Stiff Roundhouse Kick After Trying To Block Theater Company's Trademark

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Those steeped in ownership culture often have the wrong idea when it comes to trademark laws. In the minds of some, trademark laws can be used like publicity rights laws, wherein a famous somebody -- or that somebody's heirs -- can use that fame to control all uses of references to that somebody for ever and ever. That, of course, is not how trademark laws work. Instead, trademark law is designed to protect the public from confusion by allowing some monopolistic use of names and terms in some markets and only if actual commerce is taking place.This is a lesson the management company of the late renowned martial arts star Bruce Lee has now learned the hard way. Bruce Lee Enterprises attempted to both block the trademark registration for production company Barisons in the UK, which applied for a mark covering its forthcoming Jun Fan: the Bruce Lee Musical, and also to apply for a "Jun Fan" mark in the theatrical designation itself. Jun Fan, if you're not aware, was the birth name of Bruce Lee.The problem for BLE is that Barisons had already communicated its intention to put on the show with BLE and defended itself by accusing BLE of registering for its own trademark purely to block the production company's show, without any intention of putting on its own theatrical production.

Barisons claimed that BLE filed its trademark application as a blocking tactic and without any genuine intention to use the mark. As a result, the theatre company opposed the application and argued that it was made in bad faith and should be refused.BLE filed a counter-statement denying the allegation and said that it filed the application to protect Lee’s IP rights and to expand the Bruce Lee brand in the UK.In February 2017, Barisons itself filed an application to register ‘Jun Fan the Musical’, also in class 41 in relation to theatre production and musical theatre.
BLE opposed the registration, saying it had already applied for its own mark in that trademark designation, that granting the mark would imply a relationship between Barisons and BLE, and arguing that Barisons made the application in bad faith because BLE had communicated previously that it would oppose the use of Bruce Lee's birth name.Upon review by the Intellectual Property Office, things did not go well for BLE.
Allan James of the IPO said that BLE had failed to show that the name Jun Fan has a reputation in the UK at the relevant date of the applied-for trademark. James also said that BLE knew that the musical was to be called “Jun Fan: the Bruce Lee Musical”. He added that personality rights do not exist under UK law and that BLE’s trademark application covered the same services that Barisons intended on offering. James said that there was no evidence that BLE’s previous trademark applications covered theatrical shows in any other territories in class 41, and that the estate had no intention of offering such services.“I therefore find that insofar as it covered theatrical shows in class 41, BLE’s trademark was purely a blocking mechanism to obstruct Barisons’ proposed musical,” said James.
And, thus, ownership culture was, for once, defeated. And it should go without saying that this is a good thing. After all, there is no reason to think that a theater production including the use of Lee's stage or birth names would necessarily cause the public to think that BLE was behind the production at all. Instead, it appears for all the world that Barisons informed BLE of its intent, and then BLE reacted by trying to use trademark law to block them, ostensibly to then extract a licensing fee for the production.And, again, that isn't what trademark law is for.

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posted at: 12:24am on 15-Aug-2018
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Iowa Supreme Court Thinks Things Are Too Tough For Bad Cops, Adopts Qualified Immunity Defense

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The Iowa Supreme Court has decided to lower standards for law enforcement officers in its state. The ruling [PDF] issued earlier this summer gives state officers the opportunity to dismiss lawsuits against them by asserting qualified immunity. Prior to this decision, there was no qualified immunity defense state actors could raise in court. They were actually forced to actually defend themselves in court, making it easier for plaintiffs' claims to survive an early motion to dismiss and bringing them closer to justice. (via Bleeding Heartland)The case -- Baldwin v. City of Estherville -- involves an arrest for a crime that didn't exist. It involves driving an ATV through a city-owned ditch, something that's illegal under state law but not under the City of Estherville's laws. An arrest for something that wasn't actually illegal was followed by this lawsuit. It's a weird origin for a Fourth Amendment lawsuit, but the outcome makes holding officers accountable for their misdeeds much more difficult with the court's addition of qualified immunity to local government's litigation toolbox.A lot of discussion of other states and their local immunity defenses -- as well as whether or not Constitutional cases are torts rather than strict liability issues -- leads the court to the following conclusion:

Accordingly, with respect to a damage claim under article I, sections 1 and 8, a government official whose conduct is being challenged will not be subject to damages liability if she or he pleads and proves as an affirmative defense that she or he exercised all due care to conform to the requirements of the law.
This brings the state in line with the federal standard. In other words, it lowers the state standards. Officers now only need to assert they were engaged in official police business (I'm very heavily paraphrasing here) when violating rights to sidestep being held personally liable for the rights violation.This is unfortunate. Qualified immunity has created a system where officers routinely engage in rights violations secure in the knowledge that only the most egregious violations will be punished by courts. This standard varies from district to district and even obvious Constitutional violations can be overlooked if there's not a precedential case almost exactly on point for the court to look to when making its decision. Every so often a bright line will be drawn by courts, but that only applies to future cases where officers violated rights while engaged in [police activity X] during [exact time of day] involving exactly the same sort of police activity/rights violation as the "bright line" case. It's almost an insurmountable bar for plaintiffs to hurdle, which has resulted in a steady stream of unpunished rights violations.The dissenting opinion [starting on p. 40] runs almost as long as the prevailing opinion. From the outset, Justice Brent R. Appel makes it clear qualified immunity is nothing more than a reward system for bad cops. The "standard" courts claim to hold government officials too is so low as to be tragically hilarious.
I begin by emphasizing that the policy-oriented federal doctrine of statutory qualified immunity does not provide a model for determining whether individuals are entitled to qualified immunity for Iowa constitutional torts. The federal doctrine of statutory qualified immunity progressively dilutes legal norms, embraces numerous false assumptions, fails to recognize the important role of juries in restraining government, and is inconsistent with important tenets of Iowa law.
Appel goes on to state that adopting this federal standard will make Iowa -- and its court system -- much worse, and much less likely to provide an avenue of recourse when rights have been violated.
We should not voluntarily drape our constitutional law with the heavy chains of indefensible doctrine. We should aim to eliminate fictions in our law and be honest and forthright on the important question of what happens when officers of the law commit constitutional wrongs that inflict serious reputational, emotional, and financial harms on our citizens.
And of all the places to give the government more ways to dodge accountability, Appel argues the Fourth Amendment (and its Iowa Constitution equivalent) is the worst place to do it. He goes Godwin to make his point.
The importance of effective enforcement of search and seizure restrictions on government was not lost on the generation of lawyers and judges who witnessed the collapse of the rule of law in central Europe in the 1930s. As Chief Nuremburg Prosecutor Justice Robert Jackson so eloquently opined after his return from his assignment in immediate postwar Germany,"search and seizure rights are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government."
Qualified immunity is nothing more than an escape hatch for bad government behavior.
In short, when citizens suffer potentially grievous harms from unconstitutional conduct in violation of article I, section 1 or article I, section 8, we should require the officials who engaged in the unconstitutional conduct to bear the burden of the loss. We should not allow the officials who engage in unconstitutional conduct to respond to the prayer of the harmed citizen with, “Aw, tough luck. Tut tut. Bye bye.”
Here are the facts about qualified immunity. It's not needed and its absence won't result in thousands of law enforcement officers suddenly having to pay out of their own pockets for Constitutional violations.
A recent study by Professor Joanna Schwartz confirms what one might suspect, namely, that at least with respect to police officers, local governments almost always indemnify for settlements and judgments arising out of misconduct lawsuits. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 912 (2014). Specifically, the Schwartz study found that in the forty-four largest jurisdictions studied, police officers paid .02% of the over $730 million paid for misconduct suits between 2006 and 2011. In the thirty-seven smaller police departments included in the study, Schwartz found there were no officer contributions towards settlements and judgments during that time. In short, according to Schwartz, in many jurisdictions “officers are more likely to be struck by lightning than they are to contribute to a settlement or judgment in a police misconduct suit.” Id. at 914. The fact that officers are almost always indemnified undercuts one of the primary arguments in favor of the immunity doctrine—that without it, officers will be deterred from engaging in appropriate activities for fear of the financial consequences of a wrong decision.
Here's how Appel sums up his dissent:
Rather than follow the state’s motto, “Our Liberties We Prize and Our Rights We Will Maintain,” the majority follows an approach that suggests “Our Liberties Are Transient and Our Rights Are Expendable.”[...]The majority’s finding that the speculative overdeterrence of actions of officials is weighty while the risk of underdeterrence of unconstitutional conduct infringing on individual rights is not mentioned at all, suggests a results-oriented jurisprudence that favors government officials who inflict unconstitutional harms over citizens who endure them.
That's exactly how it works at the federal level and in states that have adopted this defense against liability. QI is a "Get Out of Litigation FREE!" card for government employees, and it has encouraged Constitutional violations far more than it has deterred routine police work.

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posted at: 12:24am on 15-Aug-2018
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Chicago Court: Yeah, Billy Goat Tavern Is Probably Going To Lose Trademark Case, But It Can Go Forward Anyway

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Earlier this year, we discussed a trademark lawsuit brought by the famous Billy Goat Tavern in Chicago against a chip company in Missouri called the Billy Goat Chip Co. At issue was the tavern's claim that the chip company's name and logos infringed on its trademarks. Interestingly, Billy Goat Chip Co. countersued with seemingly important information, including that it had been operating for a decade, had trademarks for its business for a decade, and that its branding differences were such that the potential for public confusion didn't exist. The Billy Goat Tavern, on the other hand, only had trademarks for its name for the tavern industry and didn't begin selling packaged food until 2017, at which time the tavern applied for marks in that industry as well.Honestly, the whole thing seems fairly cut and dry. Different markets, different products, and the very real potential that the chip company could get the tavern's trademarks cancelled based on its own first use. Yet, despite the Chicago judge presiding over the case essentially agreeing when ruling on Billy Goat Chip's motion to dismiss, the court is allowing all of this to go trial.

The main argument was that the tavern’s Lanham Act claims should be dismissed because owners should’ve known about the chips in 2010, and expressly knew the chips were on the market in Chicago in 2014, yet didn’t initiate a lawsuit until 2017.“In this case, there are too many unknown and disputed facts that preclude judgment,” Dow wrote, explaining that the Lanham Act itself has no statutory limitations, but courts in the same circuit routinely apply the three-year limits enumerated in the Illinois Consumer Fraud Act. He said the proceedings thus far give the appearance the chip company is correct about the tavern’s constructive notice in 2010 and actual notice in 2014, but he “cannot determine from the pleadings and exhibits whether Plaintiff’s delay in filing suit was inexcusable or whether Defendant would be prejudiced by allowing plaintiff to bring its claims now.”
It's always important to remember for motions to dismiss that the court is generally supposed to interpret the facts of the case in the most favorable light of the plaintiffs. That appears to be the whole story here, with Dow essentially saying that, yeah, the chip company is probably right, but procedurally the judge is just going to let this be decided at trial. I understand why courts tend towards this leniency, but I also understand the judges make a habit of hinting to plaintiffs what the proper course of action is regardless of its ruling.In this case, Dow appears to be sending Billy Goat Tavern a fairly clear message: you probably don't actually want to bring this trial to its conclusion. While that message is made on the legal merits, it sure seems to make all kinds of general business sense for the tavern to pack this up and go home, as well. There is no real competition or confusion in any of this. And, if Billy Goat Tavern wants to keep the trademarks it has, a ruling in this trial could present a threat to lose them entirely.

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posted at: 12:24am on 14-Aug-2018
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Court Tells Government It Can't Search A House Just Because A Suspected Drug Dealer Once Parked In Its Driveway

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The "good faith" exception can be difficult to overcome. Courts seem willing to grant the government this Fourth Amendment workaround even when it seems apparent the government operated in bad faith.

Take, for instance, the FBI's Playpen investigation. On the strength of a single warrant issued in Virginia, the FBI, in essence, searched computers all over the nation (and all over the world) to extract identifying info about the devices' users. Even when courts found the warrant to be invalid because of its blatant disregard for jurisdictional limitations (warrants can only be executed in the district they're issued), they still granted the government "good faith" because the FBI agent had relied on the judge's approval of the warrant to execute the search.

But this was happening while the FBI was petitioning the rest of the government to remove jurisdictional limitations with amendments to Rule 41. So, this warrant was obtained while limits the FBI wanted lifted were in place, but its execution took place before the limits were lifted. Somehow, this was still considered "good faith," even if those overseeing the warrant and investigation knew the FBI planned to violate jurisdictional limitations with the deployment of its PII-scraping malware.

This is only a small part of the federal court system's deference to law enforcement. "Good faith" is supposed to be the exception, not the rule, but hundreds of court rulings on evidence suppression bend over backwards to view law enforcement actions in the best possible light, even as evidence mounts outside the court system American policing is frequently unconstitutional, if not outright corrupt.

When you see a court actually reject the government's "good faith" advances, you can be certain law enforcement has screwed up severely. This case, brought to our attention by the Sixth Circuit Blog, is one of those exceptional strippings of a Fourth Amendment exception.

In this decision [PDF], the Sixth Circuit Appeals Court upholds the lower court's suppression of evidence. The Akron PD engaged in a lengthy drug investigation, but decided to take a few shortcuts to search a residence it vaguely speculated might be related to the drug dealer they were pursuing. The connective tissue of the warrant tore immediately upon judicial inspection. The supposed probable cause for an extensive, broad search of a residence? One time the guy they were surveilling parked his car in the driveway.

The target of the investigation was Camiolo Rocha-Ayon Jr. The rest of this is related to Carl Tucker -- the person challenging the evidence's legal origins -- in ways only clear to the officer requesting the warrant.

Akron Police Department Detective M.V. Gilbride sought a records-and-documents search warrant for the Saxon Avenue house. Citing his training and experience, as well as his observations on February 17, 2017 at 791 Saxon Avenue, Gilbride hypothesized that Rocha-Ayon had traveled to the residence “to collect drug proceeds from TUCKER to pay for [an] upcoming delivery of cocaine.” He further speculated that “a portion of the cocaine seized” from Rocha-Ayon was intended for Tucker, that “at least a portion of the currency recovered” from Rocha-Ayon was obtained from Tucker on February 17, and that Rocha-Ayon had purchased the vacuum sealer and bags on February 17 to conceal the odor of the currency that he was obtaining from Tucker, in the event that he was stopped by a K-9 unit during his return trip to Canal Winchester. Detective Gilbride attempted to bolster his conclusions by noting that the Summit County, Ohio Auditor’s Office listed Tucker as the owner of 791 Saxon Avenue; that Tucker was the account holder for the residence’s electric utilities; that the Akron Police Department had received a service call in October 2016, which suggested that drug dealing was occurring at the house; that, inter alia, Tucker had been convicted in 2000 for possession with intent to distribute crack cocaine ; and that the affidavit had been presented to and approved by “the Akron Police Legal Advisor.”

Having perused Detective Gilbride's speculative affidavit, a local judge granted the Akron PD the permission to seize:

[b]ooks, records, receipts, notes, ledgers[,] and other papers and electronic equipment to store information relating to the possession, transportation, ordering, purchase and distribution of controlled substances, . . . bank statements and records and other items evidencing the obtaining, secreting, transfer and/or concealment and/or expenditure of money; financial proceeds, namely[,] U.S. [c]urrency, photographs, indicia of occupancy; and other fruits, instrumentalities and evidence related to drug trafficking.

So, based on the observation a drug suspect once parked in the driveway of a house owned by someone else, the PD was given free rein to seize everything in the house (if not the house itself, because, you know, "transfer/concealment/expenditure of money").

Then the government obtained a second warrant after finding a utility bill with Tucker's name on it listing an address on Penguin Ave. [Keep in mind, the supposed target of this investigation is still Rocha-Ayon, who once parked in the driveway of the Saxon Ave. residence.] This affidavit copy-pasted the Saxon Ave. speculation and dragged in a completely unrelated service call from the Akron PD to this Penguin Ave. for a domestic dispute involving Tucker. This warrant was approved as well.

The lower court said the Saxon Ave. warrant (the first one obtained) was so bare bones it could not possibly justify a search. And if that warrant was bad, it invalidated the second warrant because that one was largely based on evidence recovered during the first invalid search.

The appeals court agrees. And in doing so, it provides a crystal clear description of a "bare bones" warrant -- the kind that can't be salvaged by "good faith" pleas from the government. It also points out officers utilizing warrants like these terrible ones cannot expect a judge's signature to save them from their own better judgment.

Broadly speaking, an officer’s reliance on a search warrant is not objectively reasonable where “a reasonably well[-]trained officer would have known that the search was illegal despite the magistrate’s authorization.” One such situation is where the affidavit is “bare bones,” i.e., is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”

Everything about the Saxon Ave. warrant was garbage. And everything arising from that one -- the Penguin Ave. warrant -- is just more garbage. Here's the PD's bare bones warrant, stripped of its boilerplate and CopSpeak, bleeding to death in the harsh light of judicial examination.

The Saxon Avenue affidavit is a prototypical example of a bare-bones affidavit. Stripped down to its basics, the affidavit asserts that evidence of drug trafficking would be found at the Saxon Avenue residence because (1) a suspected drug dealer once parked in the driveway for a brief period of time, (2) the house’s owner had a 17-year-old conviction for possession with intent to distribute, and (3) a four-month-old, seemingly unverified, apparently anonymous tip suggested that drug dealing may have occurred there.

The court then drags the government's arguments on behalf of its terrible warrant into the same light and lets them soak in their own shame.

The government attempts to resist this conclusion by pointing to additional, allegedly “critical” facts contained in the Saxon Avenue affidavit. Specifically, the government notes that when Rocha-Ayon visited the residence, he was driving a car that he sometimes—but not always— used in connection with drug trafficking; that prior to his arrival on February 17, Rocha-Ayon stopped to purchase household items that are sometimes—but not always—used by drug traffickers; and that two days later, Rocha-Ayon was arrested 135 miles away while transporting cocaine. Based on these additional facts, the government claims that a reasonable law enforcement officer could “easily infer” that “ROCHA-AYON JR. [had] traveled to 791 Saxon Avenue on February 17, 2017 to collect drug proceeds from TUCKER to pay for the upcoming delivery of cocaine…"

If that's the argument the government wants to make, the court will let it. But all it does is show the officer involved in obtaining this warrant is either incredibly poorly trained or an idiot.

Contrary to the government’s assertion, no reasonably well-trained officer could draw such conclusions based upon the particularized facts in the affidavit…

Building another warrant on the skeletal framing of the first bad warrant can't save the second warrant. The court discusses the issue, but points out it doesn't even need to reach a "good faith" decision on the second warrant. It clearly sprung from the first invalid warrant/search and is similarly nothing but unconstitutional garbage. Evidence obtained from both searches is suppressed, leaving the government with its original investigation target -- the one they arrested 135 miles away from the residences searched and in which the suspect parked his car once at only one of the residences.

It's an exception to the rule that's actually supposed to be an exception. Only the worst law enforcement actions are refused the GFE pass for the halls of justice. This isn't a win for the Fourth Amendment. It just one of the few times the government's disregard for civil liberties actually results in suppressed evidence.

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

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Five Years AgoThis week in 2013, we learned that lots of government agencies were trying to access that sweet, sweet NSA data — and that the DEA was not only getting it, but being instructed to cover up where it came from. Some data even made it to the IRS, with the same instructions. Once all this was revealed, the DOJ decided it should perhaps be "reviewed", which was small comfort. Then, it was revealed that the NSA scans all emails in and out of the country, and we got a look at the loophole the NSA uses to claim authority to spy on Americans. It turned out this loophole was created on the same day that the FISA court smacked down the NSA for violating the fourth amendment — a ruling people were eager to see, and the DOJ agreed to release a redacted version.Ten Years AgoThis week in 2008, copyright expert William Patry shut down his excellent blog because covering copyright issues had become "too depressing". To see what he means, look at other events that very same week: the Jammie Thomas trial was turning into a huge mess, Blizzard was trying to block a bot-maker from open-sourcing his code, a fight between TorrentSpy and the MPAA was turning into a major privacy battle thanks to some email spying, and Uri Geller was suing someone for debunking his psychic claims using an eight-second copyrighted clip. Mac clone-maker Psystar, facing a major lawsuit from Apple, was fighting back with an antitrust claim, and a Sony executive was apparently so aware of the failings of legal offerings that he encouraged customers in Australia and New Zealand to pirate PSP games.Fifteen Years AgoThis week in 2003, people were beginning to dig deeper into just how spammers make money and discovering it doesn't require a lot of customer sales as long as you can keep selling lists of spam targets — and because of this chain of list sales, even well-known companies were profiting from spam. Of course, there also were at least some people buying penis enlargement pills, too. Meanwhile, both Red Hat and IBM were fighting back against SCO's IP lawsuits, while the RIAA was still fighting hard to get info on filesharing students and generally warring with the EFF. And in an example of how much free culture terrifies some people, when Creative Commons reached out to MP3.com about partnering to give artists the option of using CC licenses, the company angrily responded by not just declining but demanding CC "cease and desist" from contacting any artists on MP3.com.

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Brief To FISA Court Says The Presumption Of Openness Should Apply There, Too

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The court system belongs to the people. That's what a "presumption of openness" means. It's a public system, accessed by the public or by representatives of the public. With rare exception, documents filed with the court system should be made available for viewing by the public.The FISA court, which oversees a multitude of surveillance programs and national security investigations is a closed book. Until very recently, it operated in total darkness, much like the agencies seeking its approval for surveillance. The Snowden leaks changed that, moving it very slightly closer to a presumption of openness.The Director of National Intelligence -- nodding towards transparency in a mostly self-serving way -- has begun to declassify orders and rulings from the FISC. But a majority of FISC documents released by the ODNI haven't come from this hesitant step towards transparency. They've been forced out the government's hands by numerous FOIA lawsuits.Access to court documents shouldn't have to be litigated, even in the FISA court. That's the argument being made by Georgetown professor Laura K. Donohue in her FISA court brief [PDF]. The long, very interesting brief covers a number of issues and government arguments, but it all boils down to public access as a presumption, rather than a grudging concession after a courtroom loss in a FOIA case.Her brief note the FISA court controls the documents submitted to it and the orders/opinions it issues. When it decides its subservient to surveillance agencies and their national security assertions, the system of checks and balances is thrown out of whack. That's what's happened over the 40 years the court has been in operation. Government agencies and a number of administrations have decided it does not have the discretion to handle the release of court documents.This is obviously wrong. Donohue's brief sets the stage with a dismantling of the government's opacity arguments -- all designed to override the court's inherent authority to control the release of court documents. [Paragraph breaks added for readability.]

FISC has inherent supervisory authority over its own records and therefore exercises non-statutory jurisdiction over all common law and First Amendment public rights of access. Each of the... arguments offered by the response brief to the contrary fails.First, the jurisprudence establishes that no statutory cause of action is required for the court to exercise its inherent powers. The court with original jurisdiction over the case oversees all contemporaneous and future motions for access to records. None of the myriad inherent powers cases at issue rely on a separate, statutory cause of action. The FISC would have to rule against the Supreme Court, every circuit, and four prior decisions of the FISC, to find for the government…
There's plenty of precedent to be had but the government wants to ignore it. Instead, it would rather funnel access through the FOIA process so it can retain complete control over documents filed in court, claiming the court's power for itself. But the government also wants it both ways and will "allow" the FISC to control court documents if it seems like a better route for an FOIA denial.
FOIA cannot serve as a substitute for judicial action as it does not (because it cannot) create a cause of action for records held by the judiciary. That statute focuses exclusively on agency records. Regardless of whether the executive branch happens to have judicial records in its files, as the Supreme Court has held, courts retain jurisdiction over their own documents.The government response brief is further in tension with two arguments that the government has elsewhere raised. In both district court and at the FISC, it has argued that even under FOIA, FISC opinions are still subject to the FISC's control, suggesting that the court does, in fact still retain jurisdiction. Perhaps more concerning, the government has gone into district court and argued that because the FISC is a specialized court, the district court should not exercise jurisdiction over FISC records-an argument at odds with the argument it advances in its representations to this court, where it suggests that (non-specialized) district courts have jurisdiction over FISC documents.
The presumption of openness and disclosure should include the FISA court. The American public has a right to know what the government's doing with its money and its tacit approval. If there are national security concerns, they must be explicitly detailed rather than broad-brushed across a stack of documents. The FISC should ensure the government doesn't cut corners on its redaction paperwork.And that's the very reason redacting exists. The government could allow the release of documents as soon as they're redacted (after making their case in court) to protect national security interests. Opening up the FISA court doesn't mean exposing a long list of surveillance means and methods. It simply means treating the FISA court like any other federal court where documents and dockets can be viewed by the public to better educate themselves on legal processes, issues, and government activities. Considering the NSA's long history of abuses, the more eyes on the process the better, especially when its oversight has devolved into a partisan point-scoring exercise.The never-before-seen release of FISA warrant affidavits should be the tip of the iceberg. There's a lot the court oversees and it's doing it with almost no assistance from the outside. This leaves it at the mercy of the agencies seeking its approval. That's not the way the system should work.

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9th Circuit Denies Cops Who Shot Innocent People 15 Times Qualified Immunity For The Second Time

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Two Los Angeles Sheriff's Department deputies are hearing -- for the fourth time -- they'll be personally responsible for a string of Constitutional violations resulting in them filling two innocent people with bullets. At this point, the officers have lost at the district level, the Appeals Court, got a partial remand (but no grant of immunity) from the Supreme Court, and are back in front of the Ninth Circuit Court of Appeals losing again.Deputies Christopher Conley and Jennifer Pederson were searching for a parolee named Ronnie O'Dell. A department briefing claimed O'Dell lived in a one-room shack behind a home owned by Paula Hughes. O'Dell did not live there. Instead, the deputies found -- after entering the shack without announcing their presence or obtaining a warrant -- Angel Mendez and Jennifer Garcia. Mendez, who had been sleeping on a futon, started to move a BB gun off the bed (the BB gun was used to shoot pests) and set it on the floor so he could stand up. Deputy Conley shouted "Gun!" and the rest -- all fifteen bullets of it -- is tragic history.From the Ninth Circuit Appeals Court's second pass [PDF] at this case:

Angel Mendez was shot approximately ten times and suffered severe injuries. He lost much of his leg below the knee, and he faces substantial ongoing medical expenses. Jennifer Lynn Garcia (now Jennifer Mendez) was shot in the upper back and left hand.
The district court found the deputies had violated clearly established rights -- both with the warrantless entry and the use of force. The appeals court upheld this ruling, siding with the lower court's interpretation of "provocation:" the legal theory that the deputies' failure to "knock and announce" directly created the "dangerous" situation (Mendez awakening and trying to move his gun) that resulted in officers shooting Mendez and Garcia.This was appealed and the Supreme Court trimmed back a bit of the Ninth Circuit's Fourth Amendment jurisprudence. It ruled against the "provocation rule" instituted in the Ninth Circuit, finding no Constitutional precedent for this theory.
The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “creat[e] a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally. Neither limitation, however, solves the fundamental problem: namely, that the provocation rule is an unwarranted and illogical expansion of Graham.In addition, each limitation creates problems of its own. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure. There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation.
This doesn't create more protections for officers. All it does is constrain the Ninth Circuit to existing QI precedent. The court can no longer rule the shooting was excessive because officers created the situation that resulted in shooting. But that's not the same as saying the force was justified either. There's more to this, and that's in the Ninth Circuit's second opinion.On remand, the Ninth Circuit court reconsiders its take on the excessive force claim. Unfortunately for the deputies, this doesn't mean they'll escape liability. If anything, the direction from SCOTUS pushed the appeals court to add state law violations to the mix. The opinion is still as acidic the second time around.
The panel held, as it did in its earlier opinion Mendez v. County of Los Angeles, 815 F.3d 1178, 1191 (9th Cir. 2016), that the officers violated the Fourth Amendment by entering plaintiffs’ home without a warrant, consent or exigent circumstances. The panel held that the officers’ unlawful entry, as distinct from the unlawful mode of entry, that is, the failure to knock and announce, for which the officers had qualified immunity, was the proximate cause of plaintiffs’ injuries. Moreover, the panel held that even if it were to treat the failure to get a warrant rather than the entry as the basis for the breach of duty, as the defendants suggested, the panel would still reach the same conclusion regarding proximate cause. The panel rejected defendants’ assertion that Mendez’s action of moving the gun so that it was pointed in their direction was a superseding cause of plaintiffs’ injuries. The panel held that if an officer has a duty not to enter in part because he or she might misperceive a victim’s innocent acts as a threat and respond with deadly force, then the victim’s innocent acts cannot be a superseding cause.
As is pointed out later in the opinion, there's a goddamn good reason the Fourth Amendment should be respected by law enforcement officers. Refusing to do so makes things more dangerous for everyone -- officers and citizens -- even though it's citizens paying with their health and lives for these violations far more frequently.
Important social interests are served by minimizing interactions between armed police officers on high alert and innocent persons in their homes, precisely because such interactions can foreseeably lead to tragic incidents where innocent people are injured or killed due to a split-second misunderstanding. One way the Constitution serves these interests is by adopting a rule that restricts officer entry into a residence except in certain limited circumstances. And it is obviously foreseeable that fewer tragic incidents like this one would occur under an enforced regime where officers will not enter homes without sufficient justification, as compared to one where officers enter without adequate justification. Especially where officers are armed and on alert, violent confrontations are foreseeable consequences of unlawful entries.
The other safety barrier between innocent people being gunned down by officers on high alert is the warrant requirement. These deputies didn't get a warrant. Nor was it even possible for them to obtain one, unless they did so fraudulently. The court lays down some nasty verbal licks describing the lack of mere suspicion, much less probable cause, surrounding this unlawful search and deployment of force.
Here, the officers most likely lacked probable cause to believe that O’Dell was in a shed that was known, or reasonably should have been known, to belong to the Mendezes. As we noted in our prior decision in this case, “O’Dell was supposedly spotted riding a bicycle in front of Hughes’ house. Unless he was riding in circles, he would have passed the house long before the officers arrived. The original group of officers recognized this, as some of them went to another house to look for O’Dell.” Mendez, 815 F.3d at 1188 n.5. Under the circumstances the officers had no more reason to believe that O’Dell was on Hughes’ property than that he was on any other property reachable by bike within the time between the informant’s report and the arrival of the police. And although the officers came across a bike parked in front Hughes’ home, there was nothing to suggest that the bike was or resembled the bike O’Dell was riding. Seeing a bike after a suspect was seen riding a bike provides no more probable cause than seeing a car after a suspect was seen driving a car.
There's nothing better waiting for the deputies' "but he had a gun" argument:
[A]mong the reasons why the Fourth Amendment erects a barrier to entry is that an officer might, due to a mistaken assessment of a threat, harm a person inside the residence. Persons residing in a home may innocently hold kitchen knives, cell phones, toy guns, or even real ones that could be mistakenly believed by police to pose a threat. The possibility of misperceiving a threat is among the reasons why entry into a home by armed police officers with weapons drawn is dangerous. In such cases, the innocent acts of a homeowner in moving an ordinary item in an ordinary way cannot properly be viewed as a superseding cause.
A California Supreme Court decision paves the way for another chance to hold these deputies' responsible for their irresponsible actions. The one issue the Ninth Circuit found in favor of the officers -- the "knock and announce" violation -- is now removed, thanks to this local ruling.
Under California law, unlike under 42 U.S.C. § 1983, the failure to knock and announce can be a basis of liability. The officers knew or should have known about the Mendezes’ presence. Yet they decided to proceed without taking even simple and available precautions, including announcing their presence, which could have protected the Mendezes from the severe harm that befell them.
The deputies are now on the hook for even more damages, something they could have avoided by not appealing the district court ruling. But QI cases tend to resolve in favor of law enforcement, so why not roll these dice? But you'd think it would all be pretty clear where this was going after the Ninth Circuit's first pass at the case. What little the officers thought they'd gained from the Supreme Court's reversal on a single claim has now turned into additional damages for state law violations.

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SXSW Panel Pitch: Science Fiction Dreams Of Electric Jobs

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As you may recall, we've been working on a big fun project called Working Futures that mixes scenario planning and science fiction to start thinking about what the future of work might really look like. We've had a lot going on behind the scenes on that project, so expect more in the future. But, for now, we're also pitching a panel at SXSW next year on this topic entitled: Science Fiction Dreams of Electric Jobs, in which myself and Berit Anderson from the sci-fi/scenario planning company Scout.ai would be joined by two incredible science fiction writers, who have both worked in tech for years, and who are brilliant and insightful, Nicky Drayden and Ramez Naam, to discuss this topic and maybe do a little live scenario planning as well.But the way SXSW works (if you don't know) is that part of determining if your panel is accepted is that all the panels that make it past the first level of review then are put up on SXSW's "Panel Picker" platform for people to vote on over the next couple of weeks (voting closes on August 30th). The voting doesn't fully determine what makes it (I believe it only accounts for about 30% of the decision), but obviously it does help. So if you think this would be a good panel at SXSW, please head over and vote (and... if you think it would be an awful panel, you should go vote for some of the other stuff, much of which looks pretty awesome as well).

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Aloha Poke Co. Rewarded For Trademark Bullying With Protests Outside Its Headquarters In Chicago

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On the matter of trademark bullying, we typically talk about these cases as matters of legal outcomes and courtroom repercussions. Less discussed is the power of the masses in the form of protest and public shaming in order to combat trademark bullies. And, yet, that appears to be part of the equation trying to solve the irritation that is Aloha Poke Co.'s trademark bullying of actual Hawaiian poke joints out of their own culture.You will recall that we recently discussed Aloha Poke Co., the Chicago-based poke chain that doesn't count any actual Hawaiians among its founders, firing off cease and desist letters to all manner of other joints that use some version of "Aloha" and "Poke" in their names. Most of these other entities are owned and operated by actual Hawaiians, from which both words and their cultural relevance stems. With so many entities out there using what are fairly generic terms in the realm of anything Hawaiian, the suggestion for public confusion made by Aloha Poke Co. seems spurious at best. Perhaps as importantly, if the company thought that the public wouldn't get wind of its bullying, it appears that it was very, very wrong, as protests at its Chicago headquarters have been organized.

The first protest is 10 a.m. to 2 p.m. Friday in front of Aloha Poke Co.'s corporate headquarters at 303 W. Madison St. Another one is scheduled 12:30 to 2:30 p.m. Aug. 15 in front of the company's Lincoln Park location at 818 W. Fullerton Ave. A march in the Loop is also being planned for Monday, though details are still being confirmed.Lanialoha Lee, who founded Aloha Center Chicago, is spearheading the Aug. 15 protest. She first became aware of the controversy after watching the video from Dr. Kalama O Ka Aina. "Everybody I know messaged me about it," says Lee. "It was all over my Facebook. I was really stunned." Lee hopes that the protests open "more eyes on the corporate level and at the restaurant level."
Most of those involved in organizing the protests are setting their aim on educating the restaurant as to how important these words and dishes are to Hawaiian culture, not to mention how those terms have been shared without incident across many businesses and restaurants. While that is exactly the right tone to take, it seems likely that the press surrounding the Chicago company being protested by Hawaiians and those interested in protecting Hawaiian culture will play a role as well. That will be all the more the case given some of the incendiary language choices the restaurant has engaged in when responding to the first news reports on its bullying, such as calling it all "fake news."That kind of public exposure and shaming can have as profound and a far speedier impact than any legal proceedings. Aloha Poke is in the business of making money, after all, and this kind of exposure and coverage carries no positive public relations weight at all. If trademark bullies can be defeated in the court of public opinion rather than in actual courtrooms, all the better.

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ICANN Loses Yet Again In Its Quixotic Quest To Obtain A Special Exemption From The EU's GDPR

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Back in May, we wrote about the bizarre attempt by the Internet Corporation for Assigned Names and Numbers (ICANN) to exempt itself from the EU's new privacy legislation, the GDPR. ICANN sought an injunction to force EPAG, a Tucows-owned registrar based in Bonn, Germany, to collect administrative and technical contacts as part of the domain name registration process. EPAG had refused, because it felt doing so would fall foul of the GDPR. A German court turned down ICANN's request, but without addressing the question whether gathering that information would breach the GDPR.As the organization's timeline of the case indicates, ICANN then appealed to the Higher Regional Court of Cologne, Germany, against the ruling. Meanwhile, the lower court that issued the original judgment decided to re-visit the case, which it has the option to do upon receipt of an appeal. However, it did not change its view, and referred the matter to the upper Court. The Appellate Court of Cologne has issued its judgment (pdf), with a comprehensive smackdown of ICANN, yet again (via The Register):

Regardless of the fact that already in view of the convincing remarks of the Regional Court in its orders of 29 May 2018 and 16 July 2018 the existence of a claim for a preliminary injunction (Verfügungsanspruch) is doubtful, at least with regard to the main application, the granting the sought interim injunction fails in any case because the Applicant has not sufficiently explained and made credible a reason for a preliminary injunction (Verfügungsgrund).
The Appellate Court pointed out that ICANN could hardly claim it would suffer "irreparable harm" if it were not granted an injunction forcing EPAG to gather the additional data. If necessary, ICANN could collect that information at a later date, without any serious consequences. ICANN's case was further undermined by the fact that gathering administrative and technical contacts in the past had always been on a voluntary basis, so not doing so could hardly cause great damage.Once more, then, the question of whether collecting this extra personal information was forbidden under the GDPR was not addressed, since ICANN's argument was found wanting irrespective of that privacy issue. And because no interpretation of the GDPR was required for the case, the Appellate Court also ruled there were no grounds for referring the question to the EU's highest court, the Court of Justice of the European Union.ICANN says that it is "considering its next steps", but it's hard to see what those might be, given the unanimous verdict of the courts. Maybe it's time for ICANN to comply with the EU law like everybody else, and for it to stop wasting money in its forlorn attempts to get EU courts to grant it a special exemption from the GDPR's rules.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Appeals Court Tells DOJ To Drop The Glomar And Hand Over Records About Prosecutorial Misconduct To Requester

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A man convicted for fraud makes his second appearance in the Fourth Circuit Appeals Court. The first was an attempt to have his sentence vacated via complaints of prosecutorial misconduct. Gregory Bartko not only discovered a government witness had perjured himself, but during his trial, the prosecution routinely delayed its production of evidence -- something the district court noticed. It didn't result in a new trial, but it did bring judicial hellfire down on the heads of the prosecution team.The Fourth Circuit's 2013 decision doesn't pull punches.

A cursory review of this Court’s opinions reveals recent consideration of at least three cases involving discovery abuse by government counsel in this district. [...] And this case, which confronts us with three alleged constitutional violations—two instances of withholding discoverable evidence and one choice to leave uncorrected a witness’s false testimony—only adds to the list.[...]Mistakes happen. Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the “flubs” committed by this office raises questions regarding whether the errors are fairly characterized as unintentional…[Quoting an earlier case involving the same prosecutor's office] “This is a repeat offense by the government. The order is entered by the court requiring disclosure by a certain date, and the government simply ignores it. And their explanation for ignoring it is, ‘I missed it. So what. There’s no prejudice.’ And it just happens again and again.Moreover, the government’s responses to queries regarding its practices are less than satisfactory. For example, in this case, when asked at oral argument about its failure to correct Scott Hollenbeck’s testimonial misstatement regarding promises he had received, the government suggested that at the time Hollenbeck made the misstatement, trial counsel had no recollection of the promises made to him. But as Judge Keenan aptly noted, such an idea “just strains credulity.” [...] And here, when we gave counsel an opportunity to correct her farfetched assertion, she refused. Faced with such behavior, we must conclude that this office is uninterested in placating concerns about its practices.
In this case, the multiple prosecutorial "errors" failed to undermine the case against Bartko, resulting in the government getting away with multiple due process violations. The court notes this is the government acting in bad faith and rolling the dice that the presented case will survive its misconduct.
Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony.
The court noted the violations may have been "harmless" in the context of this specific case, but they are far from harmless in terms of due process. The appeals court asked the DOJ's Office of Professional Responsibility to investigate the US Attorney's office in North Carolina -- especially prosecutor Clay Wheeler's [ed: oh, the irony available at that link] -- repeated flouting of discovery rules and orders.Five years later, Bartko is receiving his second opinion from the Fourth Circuit Court of Appeals -- this time pertaining to the DOJ's repeated refusal to hand over documents, specifically those related to the OPR's investigation of the prosecutor's office involved in his criminal case. The DOJ handed over a few documents listing Bartko as the "complainant," but for everything related to the court-requested investigation it gave him a Glomar.The court is about as impressed with the OPR's arguments as it was with prosecutor Clay Wheeler and the US Attorney's Office during its last discussion with Bartko. From the opinion [PDF]:
Because Exemption 7(C) shields from disclosure “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C), to invoke Glomar, OPR had to make a threshold showing that the FOIA request seeks records “compiled for law enforcement purposes.” OPR also bore the burden of making an across-the-board showing that the privacy interest the government asserts categorically outweighs any public interest.[...]In defense of its sweeping Glomar response, OPR offered only a bare-bones declaration that “[t]he records requested by [Bartko] from OPR consist of complaints or allegations of misconduct which, if they exist, would have been compiled as part of OPR’s investigations of Department of Justice attorneys who are alleged to have committed specific acts of professional misconduct which, if proved, could result in civil or criminal penalties.” J.A. 207. That is not even in the ballpark.
Not only that, but the OPR's own statements on its investigatory process made it clear most cases are closed quickly due to lack of evidence and those that survive are shopped out to other offices to handle reprimands, etc. As the court notes, this disconnects OPR from its firmly-held illusion that it possesses "law enforcement" info.
[The] description of OPR’s review process reveals just how attenuated its “law enforcement” function is. For starters, most matters do not even result in an investigation, making a finding of law-enforcement-triggering misconduct implausible in the vast majority of cases. That summary treatment seems to have been what was accorded to the Fourth Circuit’s referral in Wheeler’s case because there is no record evidence or attestations from OPR indicating that they interviewed witnesses or requested additional documents for review.
The OPR also claimed any release of investigation records would violate prosecutor Clay Wheeler's privacy. The court says there's a slim possibility that might be true, but the DOJ has provided no reason for it to believe these assertions.
Much like its vaporous justification for claiming that the requested documents constituted law-enforcement records, OPR just sweepingly asserted that the disclosure of any record regarding any allegation of misconduct would be an unwarranted invasion of Wheeler’s privacy. OPR ignores altogether its obligation to specifically identify the privacy interest at stake, which can vary based on many factors, including frequency, nature, and severity of the allegations.
Not only that, but there's more than Wheeler's privacy interest at stake. The public also has a right to know about government misconduct -- an interest the DOJ apparently believes doesn't exist.
OPR also made no apparent effort to weigh any privacy interest against the countervailing public interest in the disclosure of information concerning allegations of government attorneys’ misconduct. OPR cannot issue a blanket proclamation that a loss of privacy would be “unwarranted” without considering whether there is a public interest that might well warrant it.
This puts Bartko in line for some disclosure, roughly five years after he asked for it. Unfortunately, it appears from what little he has received, the prosecutor who engaged in misconduct was allowed to resign and avoid an OPR investigation. But what he will finally obtain should show how often that office engaged in behavior bad enough to warrant official court notice. And that's something of interest to everyone, not just the person whose case suffered directly from this abuse of due process.

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Real Estate Developer Found Using Video Game Footage In Marketing Material... Which Is Pretty Cool!

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We've featured a number of stories here about entities attempting to pass off video game footage as something in real life. On the one hand, since these stories usually feature governments doing this in a pretty bald-faced attempt at trickery, and since these attempts at trickery typically have something to do with the realm of war, it's easy to take a negative view of the whole thing entirely. On the other hand, it's hard to escape the notion that our video games have gotten so realistic so as to be able to fool large swaths of people into thinking they are depictions of the real thing, which is pretty damned cool.And, yet, even when the use of game footage is more innocuous, it still seems to get people's fur up. In the UK, one housing developer was caught using a screenshot from Cities: Skylines, a city-building game, in its pitch material for a housing project.

The eight-page brochure, which was published by this newspaper earlier this week,outlines Norwich-based firm Lanpro’s vision for a town the size of Thetford, just off the A1067. Lifelong gamer, Matt Carding-Woods, recognised an image used on page three of the document as a screenshot from the 2015 city building game, Cities: Skylines, released by studio Colossal Order.Lanpro defended the image’s use as educational, and said the document was only ever intended to be distributed internally.
A number of things apparently gave it away, including small patches of brown trees being rendered around garbage incinerators to represent pollution. While that's actually quite funny, some residents and internet users criticized the developer for failing to note that the image was a screenshot from the game. Residents in particular seemed to indicate that the image's use demonstrated the cavalier attitude the developer was taking the project as a whole.But how does that make any sense? Developers typically include renderings of future projects in pitch material. Those renderings are usually created by graphical artists that specialize in that sort of thing. But if Cities:Skylines is simply good enough at depicting residential neighborhoods that one can create a rendering within the game and use that instead, how is that anything other than pretty neat? Now, in this case, it seems that Lanpro used a neighborhood created in the game by another player. But, again, so what? As Lanpro's Chris Leeming notes, it's not like this is the first time a developer has used images from the game to pitch a project.
“It is after the detailed technical work and analysis that we will be able to form a masterplan for the proposals and provide an image of what the scheme may look like.”He added that there have been several examples of the “serious use of this software to model, engage and explain projects,” including by city planners working in Stockholm, Sweden.
And that makes sense. As games become better simulations and have increasingly convincing imagery, I would expect to see more of this rather than less.

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Funneling Trump Rally Attendees Directly Into A Violent Anti-Trump Crowd Costs Officers Their Qualified Immunity

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Law enforcement officers have no duty to protect citizens. So many offer up "protect and serve" as a credo, but the Supreme Court ruled cops have no obligation to uphold the first half of that saying and law enforcement agencies have made it pretty clear the second half isn't going to be getting much attention either.While officers may have no obligation to protect citizens, they do have to ensure they don't make things worse for those they're serving. The line isn't drawn especially clearly, but if you're policing the denizens of a frying pan, you definitely shouldn't push them into the fire. (h/t Volokh Conspiracy)The frying pan in this Ninth Circuit Appeals Court decision [PDF] was a June 2016 Trump rally held in San Jose, California. The fire was the anti-Trump protesters gathered outside the arena. Aware that Trump rallies tended to produce violent clashes (of ideologies, but mainly fists and other thrown objects), 250 officers were sent to patrol the scene.Things started to go badly quickly. According to the plaintiffs, the city instructed officers to stand back and let pro- and anti-Trump forces work it out between themselves. The rationale? "Intervention might cause a riot." There is some pragmatism to this statement, but not a whole lot of wisdom. Either way, it does clearly show the city understands officers have no duty to protect. If beatings were going to occur on their watch, they weren't going to jump in the middle of it and possibly become part of the problem.But it was clear to officers anti-Trump protests tended to include violent acts directed at pro-Trump rally attendees. It was even more clear in this case, as officers witnessed violent acts (or had acts reported to them) but refused to intervene. In fact, the 250 officers racked up only three arrests between them -- and every one of those included an "assaulting an officer" charge.The only time the officers appeared to step up was to "assist" pro-Trump rally attendees make their way out of the arena… and directly into the crowd of violent protesters.

Two Attendees—Hernandez and Haines-Scrodin—claim that San Jose police “directed [them] to walk through the antiTrump protesters, rather than . . . allow[ing] [them] to turn south, in the direction of safety.” “Soon after following the[se] directions . . . , [they] were struck repeatedly in their faces and heads by anti-Trump protester, Victor Gasca.” “Several other anti-Trump protesters also battered Hernandez and Haines-Scrodin, while Gasca kept up his assault.” As a result, “Hernandez suffered a broken nose [and several] abrasions,” and “Haines-Scrodin . . . suffered [various] bodily injuries.”Another Attendee, I.P., claims he experienced similar violence due to the City Defendants’ poorly conceived crowd-control plan. Just like Hernandez and Haines-Scrodin, he “exited the east-northeast exit of the . . . Convention Center, where a line of police officers prevented [him] from turning right, to safety” and instead “directed [him] to turn left, into the anti-Trump protesters.” “I.P. was struck in the back of his head” by one protester and “tackled . . . to the ground” by another.” “After being attacked, I.P. made his way [back] to [the] police skirmish line, and was only later allowed to cross the line to safety.”
These allegations are sufficient to survive a qualified immunity defense… twice. The district court found the officers' actions could not be excused under two theories. First, it could be credibly alleged the department did not adequately plan for the event, eventually resulting in this debacle. Alternately, it could be argued the officers increased the risk of harm by funneling rally attendees directly into a crowd that meant to do them harm. Either way, officers created this danger to leaving attendees and that particular Constitutional point has been settled for more than a decade.The officers argued they created no more danger than already existed. Their defense was basically this: anti-Trump protesters would have beaten up pro-Trump rally attendees whether or not we showed up to "police" the event. The appeals court vehemently disagrees.
The argument proves too much. If the Officers could avoid liability because the Rally was already dangerous and the Attendees were bound to be hurt, so too could the officer in Wood on grounds that the plaintiff was traveling through a high-crime area, the officers in Penilla because the plaintiff was already severely ill, and the officer in Kennedy on grounds that the plaintiff’s neighbor was known to be unstable and violent. Under the Officers’ theory, liability would only attach when an official does “more than simply expose the plaintiff to a danger that already existed.”
What happened here, the court reminds the defendants, is that officers refused to let attendees steer away from the protesters to find other ways to exit the rally. Indeed, officers directed exiting attendees directly into the anti-Trump crowd. The danger may have already existed, but officers ensured attendees would have to face that danger head on.
Attendees allege here they would have made it “to safety” had the Officers not affirmatively directed them into the crowd of protesters. Accordingly, they have alleged sufficiently this prong of their state-created danger claim.
Not only does the state-created danger claim survive, but so do the plaintiffs' allegations of deliberate indifference.
Like the officers in Wood, Munger, and Kennedy, the Officers here were aware of the danger to the plaintiffs—they knew the anti-Trump protesters posed an immediate threat to the Attendees. According to the FAC, “as early as [6 p.m.] the day of the Rally, the San Jose police warned all officers deployed around [the] Rally that assaults had already been reported outside the [Convention Center].” And throughout the Rally, the Officers “witnessed the many violent criminal acts perpetrated by dozens of anti-Trump protesters” and yet continued to “direct[] [the Attendees] into the mob.” The allegations here, if true, demonstrate the Officers “act[ed] with deliberate indifference to a known [and] obvious danger.” Patel, 648 F.3d at 971–72 (citation and internal quotation marks omitted).Indeed, the Officers’ actions are in some ways even more culpable than those of the officer in Kennedy. The Court there found the officer was deliberately indifferent because he was aware of Michael’s past acts of violence—that he “had . . . beaten [his girlfriend] with a baseball bat” and had once “li[t] a cat on fire.” Kennedy, 439 F.3d at 1064. Here, the Officers were not only aware that Trump rallies had drawn violent crowds in the past but had also received reports of violence on the day of the Rally and witnessed the violence firsthand during the Rally.
This is what happens when officers read the 2005 Supreme Court decision on "protect and serve" and decide it means they can do the exact opposite ("ignore and endanger?") and still escape liability. They can't, not when the violations are this blatantly obvious. There were other exit paths available to rally attendees. Officers decided they had only one -- one that ran right through people just waiting to take a swing at people whose politics they disagreed with. And for that, they'll be forced to defend themselves against these allegations and possibly allow San Jose taxpayers to find out exactly how expensive deliberate indifference is.

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SESTA, FOSTA, And How To Make Sense Of The Acronym Soup

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Here at Techdirt we've been slow to switch: so dug in were we for so long against the legislative scourge known as SESTA that we've been reluctant to call it anything else. Even after its ghastly provisions became law - in some ways, because its ghastly provisions became law - we've been reluctant to change what we called this vehicle of censoring doom. After all, we said for months that SESTA would be awful, and now here it is, being awful. If we called it something else people might be confused about what we had been complaining about.The problem is, it's not technically correct to continue to call this legislative outrage SESTA, and doing so threatens to create its own confusion. SESTA didn't become law; FOSTA did. When we react to those legislative changes, and cite to their source, we are citing to the bill called FOSTA, not the bill called SESTA. SESTA itself no longer exists in legislative form - FOSTA's enactment mooted it - and it's confusing to complain about a law that isn't actually one, or ever going to be one, because even if you can convince someone that it's terrible, they'll never be able to find in any law book what it is they should be upset about.It's FOSTA that now haunts us from the U.S. Code. But what's confusing is that while FOSTA is the enacted legislation now hurting us, SESTA was the proposed bill we had warned would. All the legislative history is with SESTA (well, most of it anyway), but all the legislative power is with FOSTA.So what happened? What's up with the two names? Why the shift? Basically this:SESTA was a terrible bill proposing to gut Section 230 that had been rumbling around the Senate for a while. There were some hearings and proposed amendments, but by and large it remained a bill full of terrible, Internet-ruining proposals. Eventually, when it looked like it might be picking up enough steam to pass, an alternate bill got floated in the House: FOSTA. It still played SESTA's game, but it did so with different language that presumably would have resulted in something less Internet-ruining.For what it's worth, not everyone thought this was a great strategy. Some thought that it would be better to do nothing but try to nip the whole idea behind SESTA in the bud, but others thought it might be better to go with a "devil you know" strategy if passage of something seemed inevitable, because then hopefully it could at least be something a little less awful.FOSTA was still pretty bad, although it had some hearings and amendments to try to make it less so. But then, all of a sudden, the legislative sausage-making machine went berserk and spit out something even worse. The result was a Frankenstein monster of a bill, still called FOSTA, which combined the worst of its own proposals with the worst of the SESTA bill percolating in the Senate. This new FOSTA bill soon passed the House, and shortly thereafter it's the bill that passed the Senate. Notably it was not the original SESTA bill that the Senate voted on, because if the Senate had tried to pass anything different from what the House had passed the reconciliation process between the two bills might have delayed the ultimate passage of either. Perhaps that delay would have spared us this horror, but such a fate was not something the law's Internet-undermining champions wanted to risk.So here we are, stuck with this garbage on the books, legislation so awful it can't even be labeled coherently. But giving name to something always makes it easier to fight. So from here on out, we'll be calling it FOSTA.

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Evidence Mounts: UK Study Shows Better Legal Alternatives Pushing Pirates To Become Customers

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The theory that piracy enforcement is a far inferior method for combating copyright infringement when compared with better and innovative business models and offerings is certainly old hat for us here. And, while there have certainly been studies going back years showing that to be the case, it seems notable that the past few months have seen a wave of these studies all coming on top of each other. We had MUSO, of all organizations, essentially concluding a survey it did in the UK showing how much content "pirates" actually buy legitimately by saying, "Hey, content industries, get your shit together!" That was followed quite recently by a study performed by Dutch researchers that did an amazing and large-sampled survey that concluded quite clearly that user-friendly legal alternatives depressed piracy rates at a far greater clip than enforcement measures.And, now, because good things always come in threes, yet another study in the UK has shown that once-pirates of music are morphing into very real customers due to convenient and user-friendly streaming services.

A new report from market research and data analytics firm YouGov only adds weight to that apparent shift. The headline stat from the company’s Music Report is that just one in ten Brits are currently downloading music illegally. That’s down from almost double (18%) that figure five short years ago.
It's quite obvious what coincides with that time period of the past five years that could contribute to this reduction in piracy and sure as hell isn't anything in the enforcement arena. Instead, the YouGov study suggests that the streaming services so many in the music industry have tried desperately to torpedo are responsible for this reduction. And, more interestingly, the report suggests that the trend line is only going to continue, if not accelerate.
More than six out of ten (63%) illegal music downloaders predict they’ll still be pirating in five years’ time but a significant 22% believe they won’t. Just over a third (36%) acknowledge that using unofficial sources for music is becoming more difficult but the summary doesn’t offer reasons why.“It is now easier to stream music than to pirate it. And the cost is not prohibitive,” one respondent said. “Spotify has everything from new releases to old songs, it filled the vacuum, there was no longer a need for using [an] unverified source,” added another.
In other words, innovators solved the music piracy problem in the UK, as we always said would happen. John Marshall, the associate director at YouGov, was even more explicit in his conclusions, essentially stating that the public was now satisfied with streaming services and mostly had no use for piracy.All of this is not to say that the music industry doesn't still have jobs in peril, of course. It's just that those jobs appear to be the ones involved in copyright enforcement, while the business of music itself should be doing quite well.

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This Week In Techdirt History: July 29th - August 4th

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Five Years AgoThis week in 2013, between Keith Alexander joking about how he has the number of congressional reps and the Senate being very unimpressed with James Clapper's evasiveness, it appeared the tide in congress was turning against the NSA — as was public opinion. Of course, the congressional reps who voted in favor of NSA surveillance had one obvious thing in common: they received twice as much money from the defense industry.Meanwhile, as congress ironically considered declaring national whistleblower day, Bradley Manning was convicted (but acquitted of the aiding the enemy charge) in a verdict that we knew would have massive chilling effects. But of course, cable news only granted this five minutes of coverage on average.Ten Years AgoThis week in 2008, one final ruling confirmed that the RIAA had to pay legal fees in one of its misdirected file sharing lawsuits, while the IFPI was halfheartedly apologizing for taking down a song from a blog that the artist wanted up, and ISPs in the UK were acting as copyright cops. Another of the RIAA's targets stood up to challenge the constitutionality of the Copyright Act itself in an interesting but ill-fated defense. And the MPAA, while cluelessly claiming that The Dark Knight owed its success to anti-piracy efforts, sued to sites and raised the critical question of whether embedding is infringement.Fifteen Years AgoFive years earlier in 2003, one senator was launching an inquiry into the RIAA's legal practices, while the organization itself was getting a new leader. We took on the myth that copying is theft, and the misguided industry focus on "replacing" CD sales with legal downloads — which wasn't going to happen, but that wasn't the point. People did know about legal download services of course — but one study showed they didn't care, much like how teenagers were losing interest in going to the movies.

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The War On Fan-Subtitles Comes To Australia in The Form Of Site-Blocking

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One of the more curious fronts in the never ending copyright wars is the one launched against fan-made subtitles. The theory from the entertainment industry goes something like this: these subtitles allow pirates to download movies in foreign countries and then apply the subtitles to view them coherently, therefore it's all copyright infringement. It's a dumb argument on many levels, but chiefly because it's inescapably true that the entertainment industry has done an absolutely terrible job of making sure it releases its own subtitled movies in these same countries and in these same languages. In other words, the entertainment industry isn't going to serve you foreigners, and we're not going to let anyone else serve you either. To date, much of this front of the war has been fought in Europe.But now it's poised to make landfall in Australia, where a site-blocking request lobbed by a group of entertainment industry players has, for the first time, included fansub sites.

Together the companies filed an application for the broadest-ever blocking injunctionat the Federal Court in Australia. If successful, it would compel Australia’s ISPs to block a record-setting 151 domains related to 77 ‘pirate’ sites.The list of ISPs in the case is familiar. Telstra, Optus, Vocus, TPG and their subsidiaries are all named as respondents in the case with the addition of Vodafone, which was added after recently entering the fixed-line broadband market.  What is notable about the list is the inclusion, for the first time, of sites such as Subscene, Subsmovies, YIFYSubtitles. As their names suggest, these platforms offer subtitles for the latest movies and TV shows, something that doesn’t sit well with any of the companies involved but particularly Madman Entertainment which specializes in Japanese anime.
Let's be clear about what this represents. The entertainment industry wants entire websites blocked for helping viewers understand what is being said on in their own native languages. If that doesn't smack of overreach, it's hard to imagine what would. This isn't to say that fansubs can't be used in combination with pirated movies and shows. They sure as hell can, but that isn't the only application. The other is that entertainment fans buy the products legitimately, rip them, and then apply the fansubs so they can enjoy what they bought. The fact that such a market even exists makes the obvious point that the entertainment industry is failing at giving customers what they want or, in this case, need in order to enjoy those products. And yet the end result here is bans on entire sites?Fortunately, the judge overseeing all of this appears to be fairly sober on how big a shift this represents for site-blocking.
As a result, the ever precise Justice Nicholas told the parties to ensure that no stone is left unturned in preparing evidence for the Court.“You better make sure your evidence in relation to that is particularly thorough,” the Judge said. “There’s some creep here occurring – I don’t say that critically… [but] it’s a new angle so I’ll need to look at that closely.”
That sure sounds like a judge telling the industry that it sure better have the goods if it expects the court to go along with any of this. That isn't to say Nicholas can't be convinced with a sub-par response to his request. Perhaps he will be. But from the outset it's good to see Nicholas realize the importance of this shift and the industry's creep into areas of site-blocking.In the end, as is always the case, the bigger point is that attacking fansub sites is dumb. All the recent evidence seems to show that good legal alternatives are the recipe for stamping out concerns over piracy. Site-blocking those actually providing those alternatives, on the other hand, is not.

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Rep. Kevin McCarthy Continues The Parade Of Stupid Anti-Internet Grandstanding

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In the last few months, we've seen a fairly astounding amount of idiotic grandstanding from both parties in Congress, basically trying to out stupid themselves in attacking internet companies. On the Democratic side, they've been peddling incomprehensible nonsense about how internet companies have to stop bad information from spreading (and also some misleading claims about antitrust). On the Republican side, they keep dragging internet companies up to Capitol Hill and making ridiculous and blatantly misleading claims about how they're "censoring" conservatives, which is a bunch of utter nonsense.And here's the thing: most of the politicians spewing this stuff know it's pure nonsense. But, they also know that it's an effective money raising tactic. When Democrats and Republicans clash over an issue, all too frequently, it's really about riling up people for donations, rather than any actual policy agenda. And it appears it's not going away any time soon. Despite multiple hearings that have only served to make Congress look incredibly hypocritical and/or ignorant, House Majority Leader Kevin McCarthy is now joining the fray, saying he wants Twitter CEO Jack Dorsey to testify about Twitter's made up censoring of conservative voices.And while I'm not sure whether or not some other members of Congress grandstanding on this issue actually understand what's going on, McCarthy of all people should know better. He actually has at least some history of understanding tech issues better than many of his colleagues. But, apparently, these days, the way to raise money is to make blatantly false or misleading statements against tech companies, and thus, McCarthy feels the need to join in on this silly dog and pony show. I'm sure we'll get another stupid hearing out of it that demonstrates to anyone just how clueless Congress is, but I guess if it gets a bunch of ignorant people to kick in to his re-election campaign, that's all good, right?

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Monster Energy Opposes Trademark For Liquor Company Logo, But Will Have A Fight On Its Hands

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Long-time Techdirt readers will likely hear the name Monster Energy and immediately roll their eyes. The energy drink company's reputation for being an insanely aggressive trademark bully probably actually competes with its reputation for making beverages. The company has attempted to trademark bully companies that range from differently-named root beer makers to companies that make video games. Notable in most of these bullying attempts is how little likelihood for confusion there actually is between Monster's marks and those who it attempts to bully. And, of course, the sad reality that many victims bend to Monster's demands rather than put up a legal fight.But one liquor distillery that has had Monster Energy oppose the trademark application for its logo is claiming it's going to fight back.

Family-owned MurLarkey Distillery in Bristow says it is taking the fight to Monster Energy, the energy drink company, over the right to trademark its “M” logo, which appears on its liquor bottles and merchandise.After MurLarkey applied for the trademark, Monster Energy lodged an objection with the U.S. Patent Trade Office’s Trademark Trial and Appeal Board in May. MurLarkey’s Tom Murray says he is not going to be bullied by a company that has become known for its overly aggressive tactics enforcing its trademark rights.
Now, the logos in question are not completely dissimilar. Here they are, side by side.

Except there are a number of problems here. First, the reason these logos look similar at all is because the both prominently feature a big "M." That single letter is absolutely not unique. The other reason they might seem similar to your eye is because both feature the actual names of the company in smaller type below that "M." There's some aesthetic similarity in that. But those are really the only arguments Monster has here, because everything else about this makes it unlikely anyone is going to be confused by Murlarkey's logo. Let's count the ways.To start, the two companies operate in different markets. Yes, both serve liquid for consumption, but one makes an energy drink, while the other is selling liquor, such as vodka. Those are distinct markets and not easily confused during the purchasing process. Beyond that, Murlarkey's logo features its name, a different font for its "M", and the addition of three stars at the top of the logo. These are all far more unique than having a big "M" as part of the logo. Add on to all of that the fact that the "M" logo is used sparingly on liquor bottles themselves and, when it does, is featured on a tiny label near the mouth of the bottle, and any chance for confusion vanishes. Hell, even the apparel Murlarkey's is selling with versions of the logo is obviously benign.
If that causes you to at all think of Monster Energy drinks, then you have brain damage and need immediate care. But with Monster Energy, it's never actually about customer confusion. Instead, the company is nearly pathological in its trademark bullying, as if the legal team there sees someone using an "M" and just can't help but scratch that trademark bullying itch.Let's just hope that Murlarkey's makes good on its promise to fight back.

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Election Security Has Become A Partisan Issue As Senate Votes Down Funding

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It shouldn't matter which party you belong to (or if you belong to no party at all): fixing our totally broken election security should be a priority. This is a topic we've written about on Techdirt for nearly 20 years. The broken system of electronic voting has always been a security disaster, and now with more direct attempts to influence elections happening, it should be even more of a priority. And yet, following the lead in the House, this week the Senate voted down an amendment from Senator Patrick Leahy providing more funding for election security.The vote was almost exactly along partisan lines, with only one crossover (Senator Bob Corker was the only Republican who voted for the amendment). While there were some arguments made against the bill, they don't make much sense:

Sen. Blunt said that states are responsible for running their elections, not the federal government, and that providing more funds would give the impression of federal overreach.
Sen. Lankford said on the floor Wednesday, referencing the omnibus funds, the $380 million amount is what was needed for the moment," and indicated he didn't want to fund states beyond that right now.
There can be reasonable questions in how this money is being spent, and what's being done to actually secure elections, but the fact that this seems to be becoming a partisan issue should worry us all. And, I know some of you will be tempted to do this, but claiming that Republicans are against this because insecure technology helps them get elected is not a serious response. That's not only cynical, but almost certainly incorrect.However, at a time when Congress (including many of the Senators who voted against this) have been grandstanding about tech companies being used to influence elections, the fact that they would then not really care that much about our woefully undersecured voting infrastructure just seems ridiculous. For years, we've argued that when tech policy issues get partisan, they get stupid, and it would be a real shame for election security, of all topics, to become stupidly partisan.

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You Caught A Bullshit 'Photographing The Police' Arrest Too Soon, Federal Judge Tells Plaintiff

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A federal judge in Texas has ruled the right to photograph public officials in public is indeed protected under the First Amendment. The problem for the plaintiff in this case is that the right wasn't clearly established at the time his arrest occurred. The lawsuit survives, but just barely, and the transit cop who engaged in a pretty-much-established violation of the photographer's rights will escape being held liable for abusing their position. (h/t Eric Goldman)Avi Adelman, a freelance journalist, was photographing EMS officers responding to the scene of an apparent overdose. DART (Dallas Area Rapid Transit) officer Stephanie Branch arrived at the scene and placed herself between Adelman's camera and the medical scene. Branch made up something about "establishing a perimeter" and "HIPAA violations" and told Adelman to stop photographing. According to the decision [PDF], Officer Branch also asked Adelman to leave the scene nine times and (for whatever reason -- most likely because Texas cops just don't seem to understand this particular law) for his ID four times. Adelman refused and was arrested, spending 20 hours in jail.An internal investigation by DART resulted in a letter from Chief James Spiller to Adelman telling him the bogus "criminal trespass" charge against him would be dismissed. It also contained an admission of guilt: the letter stated the interaction and arrest were "not consistent with DART… policies and directives." And, just to prove the old adage holds true, DART discovered Officer Branch made twenty-three false or inaccurate statements in her report, including falsely claiming Adelman was only a "few feet" from responding paramedics.So, you'd think an admission of wrongdoing would pave the way towards a successful civil rights lawsuit. Unfortunately, that's not the case. The admission the arrest was not consistent with DART policies pretty much defused any "policy and practice" or "failure to train" claims Adelman might have brought against DART. And circuit precedent shuts down Adelman's attempt to hold Officer Branch directly responsible for violating his rights.

In her motion for summary judgment, Branch argues that the First Amendment right to film the police or by reasonable extension to photograph emergency medical activity, as Adelman was doing, was not clearly established at the time of Adelman's arrest in 2016. [...] In support of her argument, Branch relies on the Fifth Circuit's holding in Turner v. Lt. Drive...
The Turner decision was handed down in 2017. In that case, the Appeals Court went the distance, clearly establishing a First Amendment right to record police activity. But that doesn't help Adelman at all and allows the cop who lied 23 times on her report to duck out this lawsuit.
The Court finds that the holding in Turner applies to the case at hand. At the time that Adelman was arrested for photographing a medical scene attended to by DFR paramedics and DART police, the right to photograph police was not clearly established. Therefore, Branch may assert a defense of qualified immunity.
And, despite DART's admission the arrest was not according to its own policies, Adelman is unable to move forward with his Fourth Amendment claims against Branch. Adelman's claims against DART, however, will move forward. Since a municipal entity is unable to assert a qualified immunity defense against claims like Adelman's, it will have to continue to defend itself against Adelman's First and Fourth Amendment claims. Unfortunately, DART's letter to Adelman seems to indicate his arrest was the work of a rogue transit cop who violated DART policy and lied about it. Ultimately, it may be found DART is not liable for arrests that violate policy, leaving Adelman with nothing but a legal bill for his troubles.

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Stupid Patent Of The Month: Upaid Sues 'Offending Laundromats' For Using Prepaid Cards

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When patent trolls threaten and sue small businesses, their actions draw the public's attention to the worst abuses of the patent system. In 2013, a company called MPHJ Technology got called out in a U.S. Senate hearing as a "bottom feeder" engaged in "garden-variety extortion" after it sent out thousands of demand letters demanding payments from small businesses that dared to use printers with "scan-to-email" functions. Lawmakers, understandably, found it incomprehensible that broad, stupid patents were being used to sue burger stands and grocery stores.There's a good reason for that concern. It's hard to see how lawsuits against small businesses using basic technology do anything to "promote the progress of science and the useful arts." By contrast, it is easy to see how these lawsuits harm companies and consumers by increasing the costs and risks of doing business.But the intermittent public attention hasn't stopped this most basic abuse of the patent system. Upaid Ltd., a shell company based in the British Virgin Islands, has been filing patent infringement lawsuits throughout 2018, including 14 against laundromatsyes, laundromatsfrom California to Massachusetts.Upaid says that laundromats are infringing U.S. Patent No. 8,976,947. Claim 1 of the patent describes a computer system that performs "pre-authorized communication services and transactions," after checking an account to see if a user "has a sufficient amount currently available for the transaction." It's essentially a patent on having a prepaid account forwell, anything.Right now, Upaid lawyers are focused on systems run by Card Concepts, Inc., a service provider that markets a system called Laundry Card to laundromats. Many of the Upaid's complaints simply point to online photos of the laundromats and the relevant card dispensers as evidence of infringement.This incredibly broad patent was granted in 2015, but dates to a series of applications stretching back to 1998. Even in 1998, a prepaid account was not an inventive concept. It's a basic and longstanding idea, that isn't improved by adding verbiage about a "plurality of external networks" and a "computer readable medium."And that's exactly the argument that lawyers for Card Concepts Inc. made [.pdf] when they got sued by Upaid last year. CCI has rightly argued that the patent should be invalidated as abstract under the Alice decision. CCI's motion may well succeed in defending their customersat some point.Meanwhile, though, Upaid has unleashed 14 lawsuits against laundromats in different states, and has promised more. Faced with the prospect of paying a lawyer, even if just to buy time, some of those small businesses are likely to pay unjustified licensing fees for this patent.In fact, it has begun to happen. Last week, UPaid put out a press release boasting that a Houston-based facility called 24 Hour Laundry had agreed to pay them. Laundromats in Kansas, Massachusetts, and Monterey, California are next up on the list."When required, we will strenuously enforce our rights through litigation against offending laundromats," warned Upaid CEO Simon Joyce. "Our recent settlement reveals that many parties are not aware that the card equipment critical to their successful laundry business infringes our patents."Upaid's behavior is brazen, but it is not an anomaly. Other patent trolls have waged campaigns against small businesses that merely use off-the-shelf technology. For example, Innovatio IP Ventures sent thousands of letters targeting hotels and cafes that provide Wi-Fi for customers. In Upaid's case, the company's website doesn't list any products or services, but states that it is engaged in "ongoing development" of "intellectual property related to mobile commerce systems."Lawsuits against small, non-technology business show how trolls exploit the patent system. The costs to challenge a wrongly granted patent are highdefending a patent lawsuit through a jury trial can cost millions of dollars. Faced with the possibility of that kind of "winning," small businesses will often fold.Yet this year, patent maximalists are actually talking about rolling back the key changes to patent law that give small businesses a fighting chance. The Alice Corp. v. CLS Bank decision has stopped hundreds of "do it on a computer" style patents in their tracks. Meanwhile, inter partes review, a process that can get wrongly issued patents thrown out at a lower cost, are also under attack.Instead of considering patent bills that move in exactly the wrong direction, like last year's STRONGER Patents Act, Congress should consider legislation focused on how to help the smallest businesses from being roped into unjustified and expensive patent disputes.Reposted from EFF's Stupid Patent of the Month series.

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