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October 2018
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Steam, Proud Adopters Of Hands Off Games Policy, Very Hands On When Banning All Of TorrentFreak

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The calls for internet platforms to actively censor content one group or another doesn't like has slowly risen to a cacaphony as of late. Even the most well-meaning arguments calling for internet platforms to be more heavy-handed in moderating the sources of content are invariably stupid, showing little understanding of just how hard it is to do this without creating all kinds of collateral damage, how hard it is to properly define for a large subset of humanity what sources are acceptable and what sources aren't, and a near complete misunderstanding of just how much human error goes into this overall. We have helpfully cited several exmaples of platforms sticking their feet in crap as they try to attempt this.But the case studies in how badly this always goes keep rolling in. You may recall that we recently discussed how Comcast's protected browsing options managed to disallow access to TorrentFreak, a news site. Well, Comcast doesn't exactly have a reputation for being hands-off when it comes to managing its network. Unlike, say, Valve's Steam platform, which just made a bunch of news with a new games policy championing its hands-off approach. How Steam handles links shared on its platform are obviously in a different timezone compared with the games its allows, but it's still a bit odd to see that Steam is apparently very much hands on when it comes to blocking TorrentFreak as well.

Here at TorrentFreak we’re used to censorship. Every few months we’re contacted by readers trying to access our news articles on public WiFi, only to find that the site is blocked alongside various warnings, none of which are true. It’s almost as if the word ‘torrent’ in our URL has been blindly blacklisted for some reason.Sadly, this week we’ve discovered that Steam, the popular digital game distribution and social networking platform, has jumped on the “let’s censor TorrentFreak” bandwaggon. A tip from a TF reader and Steam user highlighted the problems he’d experienced when trying to read TF articles via Steam’s chat interface.
As has often been the case in the past, the likely culprit in all of this is a combination of an overly aggressive filtering and blacklisting system combined with the simple fact that TorrentFreak's name has the word "torrent" in it. Still, as non-nefarious as that explanation is, assuming it's even true, that almost perfectly highlights just how terrible even large internet platforms are when it comes to correctly censoring undesirable content.Just to make this clear, nothing about TorrentFreak makes it a valid target for censorship of this kind. It's purely a news site, covering topics related to digital marketplaces, piracy, and filesharing. And, yet, the site is depressingly used to finding itself on all kinds of blacklists. In this case, however, users are being told that TorrentFreak is something it absolutely is not.
Steam has banned our entire platform and put up a warning that’s not only completely false but also damaging to our reputation.“https://torrentfreak.com has been flagged as being potentially malicious. For your safety, Steam will not open this URL in your web browser. The site could contain malicious content or be known for stealing user credentials,” the warning reads.Of course, on its own platform Steam is fully entitled to block resources that it believes can harm its users. Some might even argue that it has a duty of care to do so, in order to keep its community safe. However, making blatantly false statements while blocking access to accurate news reporting shouldn’t ever be part of that.
It's an obvious point, but one that needs to be repeated to every person out there shouting for websites to do more site and source blocking. Because going down that road is always going to lead to this kind of collateral damage, particularly for larger platforms that need to do this kind of censorship in an automated fashion. Perhaps for some, blocking valid news organizations is worth the larger outcome of blocking content they don't like.For us, however, it's quite obvious how horrible a deal that is for free and open speech on the internet.

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posted at: 12:53am on 31-Oct-2018
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Memphis Police Department Body Cam Program Being Undercut By Its Body Cam Policies

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The Memphis PD is facing quite a bit of scrutiny right now. In addition to just having lost a lawsuit over unconstitutional surveillance of protesters and activists, and being told to stop creating fake Facebook accounts (by Facebook itself), it's dealing with the heat of a recent shooting of a Memphis resident by police officers -- one that left the victim in critical condition. Body cameras were available but not in use by all officers on the scene. In addition, it appears at least two officers deliberately deactivated their cameras during the pursuit of the suspect, Martavious Banks.

In that same Tuesday news conference, [Memphis Police Department Director Mike] Rallings had also said that two other officers who encountered Banks during a traffic stop prior to the shooting weren't using their cameras properly:“After further review, it was discovered that two additional officers who were involved in the original stop at Gill and Pillow deactivated either their body-worn cameras or in-car video systems during the pursuit from Gill and Pillow,” Rallings had said on Tuesday.
This has led to a discussion about the Memphis PD's body cam practices and policies. At this point, the MPD releases footage at its own discretion. In theory, this would allow the MPD to get out ahead of criticism by releasing footage of controversial incidents. In practice, however, this means the MPD usually refuses to release footage until forced to.Director Rallings is now out defending his department from accusations that it covers up incidents by withholding footage or, in some cases, ensuring footage is never recorded. Records released to the Memphis Commercial Appeal show there is at least some officer misconduct being captured by cameras. The records also show a number of violations of body camera policies by officers.
Fifty three Memphis police officers have violated the department's body camera policy since the cameras were deployed in October 2016, according to police records obtained Friday by The Commercial Appeal.The department has issued more than 20 reprimands to police officers who have violated its body camera policy. At least 10 of those officers were suspended. Four officers received oral reprimands.The department's records also show allegations of officers using excessive force and displaying police misconduct while not operating their body cameras.
Rallings says the comparatively small amount of violations isn't indicative of a larger problem. Instead, he posits this shows a high rate of compliance by MPD officers.
“Out of 2.4 million videos, you are going to have some officers that either make a mistake or make a bad decision," Rallings said."But I want you to divide that (number of violations) by 2.5 million and you see that it is very rare there is a negative incident. Given the 1,650 officers with body-worn cameras, that is a very small percentage,” he said, referring again to the 53 officers.
It can be both. There can be a small subset of officers who've been caught violating policies or covering up misconduct and larger overall compliance by the rest of the MPD's staff. But assuming the ones who have been caught violating policy are the only ones violating policy is a mistake.Even if it's exactly what it looks like, the MPD's refusal to release footage until forced to doesn't allow anyone outside the department to double-check this math. Director Rallings says the policy on withholding footage relevant to ongoing investigations will remain in place. This will continue to ensure no footage is released when it is of greatest public interest, as internal investigations can be extended to fit the timeframe needed for outrage to die down.Rallings is right about one thing, though. Body cameras are in place for one reason -- and it's not the reason most law enforcement agencies would publicly acknowledge.
"We bought the cameras to be an independent witness, not because I don’t trust the police officers, and, officers, y’all need to hear this," Rallings said. "It is 'cause a lot of the public doesn’t trust you."
But his internal policy undercuts his words. He acknowledges that the PD needs to rebuild trust, but then says the PD won't release footage of controversial incidents until it's convenient for the PD. Collecting footage and locking it up behind restrictive policies won't make this trust problem go away. And discovering officers are still deactivating cameras during controversial incidents doesn't exactly give citizens much confidence the new tech will serve anything more than the PD's interests.And Rallings heads completely off the rails by stating a deliberate lack of recordings -- like in the Martavious Banks shooting -- will have zero effect on internal investigations.
“The body-worn camera is just a tool, it’s not perfect," Rallings said. "There is no law in the nation that says for an officer-involved shooting to be justified, it must be captured on body-worn cameras."
So, that's what it's going to take, huh? That's a tacit admission officers will continue to act as their own film directors during questionable stops and deployments of force. They'll decide what the cameras capture and how it's framed and "no law in the land" will stop them from doing it. Director Rallings could put a stop to it by proactively releasing both footage and officers when questionable incidents are coupled with deliberate deactivation of recording devices. But he's chosen to go the other way and make the law force recordings out of his hands and accountability onto his officers. The law can only go so far. It's sad Rallings isn't willing to make up the difference.

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posted at: 12:53am on 31-Oct-2018
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Sep/Oct 2018 Magazine

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Cover Story - Migrating NorthWind Database to a MultiValue Database

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Sep/Oct 2018 - Migrating NorthWind Database to a MultiValue Database

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RDBMS model doesn't really scale well in complexity. It never has. In many cases, it doesn't really scale well in volume, either. One of the best ways to see how MultiValue exceeds the abilities of competing technologies is by comparing apples to apples. If we take the Northwinds database into a MultiValue system, we can demonstrate the speed, the ease, and the scaling that we excel at in a clear and concise way.

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Court Tells Deputy He Can't Lie About Reasons For A Traffic Stop And Expect To Keep His Evidence

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The nation's courts don't have a problem with pretextual traffic stops. Any traffic violation -- real or imagined -- can trigger an investigatory stop. There are limits, of course. The Supreme Court's Rodriguez decision says officers can't extend stops past the objective of the stop if reasonable suspicion of additional criminal activity fails to materialize.

It's perfectly legal to pull someone over for crossing a fog line when all you really want to do is search their vehicle for contraband. But you have to stick to the pretext… at least for the most part. A host of excuses and exceptions (good faith, plain view, "I smelled marijuana," etc.) salvage most stops-turned-searches but if a defendant can show the stop itself was bogus, all bets are off.

This short federal court decision [PDF] ordered the suppression of evidence obtained during a pretextual stop, and calls out a sheriff's deputy for lying about the reason for the stop, one that resulted in the discovery of drugs and weapons. (via The Newspaper)

According to the police narrative, a stop was performed on Cedric Gordon's vehicle because his rear license plate wasn't properly illuminated.

In his narrative, Deputy Forbert maintains that he attempted to read the vehicle’s license tag number but was unable to do so because the vehicle’s tag lights were out. Deputy Forbert followed the Defendant’s vehicle for approximately two minutes, or one-half mile, before initiating the traffic stop because the tag lights were out. After initiating the traffic stop, Deputy Forbert approached the Defendant’s vehicle and claims he smelled marijuana coming from the vehicle. Deputy Forbert ran the vehicle’s tag number and the Defendant’s criminal history came back positive. Deputy Forbert subsequently arrested the Defendant and the vehicle was searched, revealing a firearm and controlled substances.

This story might have held up anywhere but in court, where actual evidence needs to be presented. Gordon presented his, which included photos of his vehicle during the traffic stop -- photos that clearly showed his rear license plate was illuminated.

Faced with actual evidence, Deputy Forbert began backtracking on his original testimony, covering up his lies with more lies. The court details the Forbert's attempts to move the goalposts.

At the hearing on this Motion [14], Deputy Forbert repeatedly contradicted the statements contained in his narrative and provided implausible testimony regarding the reasonable suspicion he had at the time of initiating the traffic stop. For example, Deputy Forbert’s narrative stated that he initiated the traffic stop because the vehicle’s tag lights were not working, but when questioned by the Court, Deputy Forbert admitted that the Defendant’s tag lights were working on the night in question. Instead, Deputy Forbert explained that he initiated the traffic stop because the Defendant’s license tag was not illuminated brightly enough. Deputy Forbert claimed that he was unable to read the darkened tag from fifty feet away, as required under the statute. When questioned further by the Court, Deputy Forbert maintained that the tag was too dimly lit to read even forty feet away. However, Deputy Forbert eventually admitted at the hearing that he was able to see that the tag lights were in fact working and that the tag was illuminated once he stopped the vehicle.

With the license plate story destroyed, Deputy Forbert tried to bring in a new set of goalposts. The court wants nothing to do with them.

The Government also argues that even if the Defendant’s tag lights were working properly, Deputy Forbert had reasonable suspicion to initiate a traffic stop because the seatbelt violation alone was sufficient to justify the stop. At the suppression hearing, Deputy Forbert stated that he intended to perform a traffic stop for a seatbelt violation, contrary to the narrative he prepared the day of the traffic stop. Deputy Forbert maintained that he had reasonable suspicion to initiate the traffic stop because he was able to see the passenger attempting to put her seatbelt on through the tinted windows. However, when questioned by the Court, Deputy Forbert admitted that the windows were darkly tinted and stated that he did not actually view the passenger without her seatbelt on. Based on the evidence and testimony presented at the hearing on this matter, the Court finds the evidence of a seatbelt violation unconvincing.

In other words, the court believes the officer is lying. Of course, it's never phrased this way, but a court stating it does not find an officer's testimony credible is about as close to calling them a liar as a federal court will ever get. The end result is the suppression of evidence, the only thing supporting Cedric Gordon's conviction. Without the gun and drugs, all the government's left with is what it had to begin with: a vehicle with properly-illuminated license plates.

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posted at: 12:53am on 30-Oct-2018
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Australian MP Pushes Back Against Expanded Site And Search Blocking Laws

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We've been talking for several months now about the amendments to Australian copyright law currently under consideration by the government there. As a refresher, Australia put a site-blocking policy in place several years ago. That policy has been praised by both government and rightsholders as effective, even as those same interests insist that it doesn't do enough to stop piracy down under. As a result, the government is currently considering amendments to Australian copyright law that would make it easier for extra-judicial blocks of "piracy sites" and their mirrors, and includes demands that search engines like Google participate in this censorship as well, despite the fact that blocking search returns relevant to a user request is the opposite of what Google does. Predictably, the amendments to the law have wide support across political parties in Australia, and pretty much everyone is sure it's going to pass as is.A key aspect of this is that all of the focus is on piracy and how to stop or minimize it, regardless of whatever negative effects that might have on ISPs and a free and open internet. There has been zero focus thus far on whether these legal mechanisms are really the optimal route to addressing this problem. This week, however, one Australian MP decided to grab a microphone and finally take rightsholders to task.

An expansion of Australia's piracy site-block laws is "a form of regulatory hallucinogen", Labor MP Ed Husic has said, adding that the voice of the consumer needs to be heard and rights holders should be less "resistant" to digitisation and reforming their systems."The big challenge is the freeing-up of copyright to ensure that innovation can spread more widely and to face up to big rights holders and the types of hysterical arguments we get in this space," Husic said. "These rights holders think that by constantly using legal mechanisms through this place and elsewhere, piracy will disappear. The reality is that piracy is a reflection of a market failure."
It's rare that a member of government gets things so absolutely correct on this subject. Far too many rightsholders seem to only have one arrow in their quiver, and that's the legislative or judicial arrow. What has actually occurred is that a disruptive force, the internet, has changed the possibilities and demand for certain types of content. Does anyone remember the consumers of these products, legitimate and otherwise? They are supposed to have a voice in government as well, and yet they are consistently ignored. But, really, it's the public and the internet that are driving this whole discussion. How is it possible that they don't have a seat at the table?Husic goes on to ask the same question, all while poking lawmakers in the eye for bowing to the wrong constituency.
"As lawmakers, just because we might get a selfie with Richard Roxburgh -- I love Rake as much as anyone else -- or a political party gets a donation from a rights holder, does not mean that we should stop looking at how to make the types of reforms that balance the needs of creatives and the needs of producers versus the needs of consumers," he said.
The sad part of all of this is that Husic is the exception, not the rule. When you read that these amendments will almost certainly pass in Australia, that prediction is almost certainly correct. And, when that happens, exactly whose interests will be served? The answer, I think, cannot possibly be "the public's."

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posted at: 12:53am on 30-Oct-2018
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This Week In Techdirt History: October 21st - 27th

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Five Years AgoThis week in 2013, the latest NSA leak showed that the agency grabbed data on 70 million French phone calls in less than 30 days, leading James Clapper to play word games in issuing a denial, while the White House was trying to assuage Angela Merkel with a dodgy promise that they are not and will not monitor her phone calls (no word on the past, though). Government officials were continuing their long history of calling journalists traitors for reporting on the leaks, while Keith Alexander said the government needs to find a way to stop them. And Dianne Feinstein was trying to paint metadata gathering as not true surveillance, garnering a direct rebuttal from Ed Snowden. Also, we learned the Senate was sitting on a devastating report about CIA torture...Ten Years AgoThis week in 2008, while the EFF and ACLU were asking news networks to stop sending DMCA notices over political ads, we were wondering whether this experience would prompt either McCain or Obama to support DMCA reform. The RIAA was establishing "vexatious" as its new favorite word to lob at its critics and opponents, and a really dumb ISP takedown of a record label showed why ISPs shouldn't be copyright cops.Meanwhile, we had a big failure at Techdirt that wiped out half a day's worth of comments, but were saved by archives from the comment search engine BackType (which would go on to be acquired by Twitter in 2011).Fifteen Years AgoThis week in 2003, critics were rebelling against the MPAA's ban on screener DVDs, leading the association to finally back down a bit — though not on Jack Valenti's crowing about the moral obligation to stop piracy, or the association's new program to brainwash school children with its copyright maximalism which finally launched this week. Two different writers in the same newspaper reached opposite conclusions about the same study on file sharing, while others debated whether iTunes would put a dent in it, and we wondered if the entertainment industry's many copyright initiatives were a way of starting so many fights about complex policy that their opponents appear to be crying wolf.

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posted at: 12:53am on 28-Oct-2018
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Appeals Court Judge Tears Into ATF's Life-Wrecking, Discriminatory Stash House Stings

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The ATF's stash house stings are one of the worst things about federal law enforcement. And it's a crowded field! Sure, the FBI routinely engages in something approaching entrapment when it turns people with self-esteem problems and/or serious mental health issues into terrorists. But the FBI can't tell a judge how much terrorism to charge defendants with. The ATF stings -- involving imaginary drugs hidden in fictitious stash houses -- give the government the ability to trigger mandatory minimum sentences simply by claiming the fake stash of drugs was more than five kilos -- automatically setting up defendants for 20-year prison terms.

Another victim of the ATF's stash house stings is fighting his conviction in court. Daryle Lamont Sellers hopes to prove the ATF's stash house stings are racially-biased. There's some evidence this is the case. Researchers found sting operations in Chicago netted a disproportionate number of minority suspects. A review of hundreds of court cases by the USA Today showed the ATF targeted minorities 91% of the time.

Sellers says the ATF is engaging in selective enforcement. To do that, he needs information the ATF has on hand, but is refusing to hand over. The Ninth Circuit Appeals Court has declared Sellers should have access to this information because the claim he's making isn't the same as selective prosecution, which requires Sellers to show more than he has in this case. From the decision [PDF]:

To succeed on his selective enforcement claim, Sellers must show that the enforcement had a discriminatory effect and was motivated by a discriminatory purpose. He is unlikely to meet this demanding standard without information that only the government has. Sellers can obtain this information through discovery if he makes a threshold showing. We must decide what that showing is. We hold that in these stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under United States v. Armstrong, 517 U.S. 456 (1996).

This is good news for Sellers. And it's potentially good news for others roped in by ATF stings. If he obtains information showing discriminatory motivation, minority suspects are going to have another way to fight these charges in court.

But the entire opinion is worth reading past the opening declaration in favor of Sellers. Judge Jacqueline Nguyen tees off on the ATF in her concurring opinion, pointing out biased enforcement is only a small part of stash house sting operations' problems.

While these operations do “not . . . reduc[e] the actual flow of drugs,”2 the government touts them as an important tool “to catch people inclined to commit home invasions.” United States v. Hudson, 3 F. Supp. 3d 772, 786 (C.D. Cal. 2014), rev’d sub nom. United States v. Dunlap, 593 F. App’x 619 (9th Cir. 2014). But when the government fails to target known criminal enterprises or people suspected of engaging in serious crimes, the practice is highly questionable and raises troubling questions about race-based targeting.

There is no legitimate dispute that these stings primarily affect people of color, but the government has steadfastly resisted any defense attempt to determine whether enforcement is racially biased.

She goes on to point out the government outsources the target selection to informants -- ones who have their own interests to serve and protect. This makes it clear the ATF is searching for dangerous criminals to talk into fake stash house robberies. It's more than willing to take whoever -- which more often than not is a minority with no history of violent crime or armed robbery. From there, the government gets to decide how many years of a suspect's life it's willing to try to take away. Invariably, every fake drug stash is large enough to demand 20-year minimum sentences.

Then she gets right to the heart of the matter: of course the ATF's sting operations are racially-biased. They're based on a bunch of lies, which gives the ATF the opportunity to pick anyone as its fall guy. But the agency always seems to end up arresting the same sort of people.

Law enforcement agents, on the other hand, do not deal with a closed universe of criminal suspects. When conducting a reverse sting, literally anyone could be a target. See Black, 733 F.3d at 315 (Noonan, J., dissenting) (“In the population of this country, there is an indefinite number of persons who dream of clever and unlawful schemes to make money. Does their dreamy amorality cast them all as fit candidates for a sting by their government?”). There is no reason to suspect that persons of a particular race are more likely to agree to commit a stash house robbery unless one believes that persons of that race are inherently more prone to committing violent crime for profit—a dangerously racist view that has no place in the law. If law enforcement agents target potential stash house robbers in a race-neutral way, then the racial breakdown of targeted individuals would presumably closely mirror that in the community. If it doesn’t, then that’s potentially indicative that the agents or their informants are using discriminatory procedures.

This is what the ATF does dozens of times a year. It takes fake drugs and fake stash houses and turns them into real prison sentences. And, so far, it's been getting away with it. But it sounds like courts are beginning to tire of locking people up for unwittingly engaging in the ATF's charades. At some point, this will all come crashing down on the feds, but until then dangerous criminals will continue to walk the streets while down-on-their-luck nobodies serve their prison terms for them.

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posted at: 12:52am on 27-Oct-2018
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Detailed And Thorough Debunking Of Bloomberg's Sketchy Story About Supply Chain Hack

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Last week we noted that the general consensus at this point is that Bloomberg screwed up its story about a supposed supply chain hack, in which it was claimed that Chinese spies hacked Supermicro chips that were destined for Apple and Amazon. Basically everyone is loudly denying the story, and many are raising questions about it. In our comments, some of you still seemed to want to believe the article, and argued (without any evidence) that the US and UK governments, along with Amazon and Apple, were flat out lying about all of this. I pointed out a few times that that's not how things work. Also untrue is the idea that many floated that the US government was forcing Apple and Amazon to lie. That also is not how things work (for those who don't believe this, please check your First Amendment case history).Anyway, over at Serve the Home, Patrick Kennedy has one of the most thorough and comprehensive debunkings of the Bloomberg story, detailing how incredibly implausible the story is. Kennedy's write-up is very detailed, including lots of pictures and detailed drawings of how networks are set up. Here's just a little snippet as an example:

The next inaccuracy to this paragraph is the line describing BMCs as giving them access to the most sensitive code even on machines that have crashed or are turned off. That is not how this technology works.Baseboard management controllers or BMCs are active on crashed or turned off servers. They allow one to, for example, power cycle servers remotely. If you read our piece Explaining the Baseboard Management Controller or BMC in Servers BMCs are superchips. They replace a physical administrator working on a server in a data center for most tasks other than physical service (e.g. changing failed hard drives.)At the same time, the sensitive data on a system is in the main server complex, not the BMC. When the BMC is powered on, hard drives, solid state drives, the server's CPU (for decrypting data) and memory are not turned on. If you read our embedded systems reviews, such as the Supermicro A2SDi-16C-HLN4F 16-core Intel Atom C3955 mITX Motherboard Review, we actually publish power figures for when a system is on versus when the BMC only is active. In that review, the BMC powered on utilizes 4.9W of power. SSDs each have idle power consumption generally above 1W and hard drives use considerably more even at idle. The point here is that when the server's BMC is turned on, and the server is powered off, it is trivially easy to measure that the attached storage is not powered on and accessible.When a server is powered off it is not possible to access a server's most sensitive code. OS boot devices are powered off. Local storage is powered off for the main server. Further encrypted sensitive code pushed from network storage is not accessible, and a BMC would not authenticate.This line from the Bloomberg is technically inaccurate because a powered off server's storage with its sensitive code has no power and cannot be accessed.
There is much, much more in the piece, and it is well worth reading if you still think Bloomberg was on to something with its story.So far, Bloomberg has stood by its story, even though it increasingly seems clear that its reporters -- Michael Riley and Jordan Robertson -- were in over their heads. It is possible that something questionable happened, but it almost certainly did not happen the way they described it. The fact that Bloomberg has refused to recognize any of these concerns is incredibly damning for Bloomberg's reputation.

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posted at: 12:52am on 27-Oct-2018
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The Craft Beer UK Market Saw A 20% Increase In Trademark Registrations In 2017

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Regular readers here will know that we have been sounding the alarm on how trademarks are being handled in the enormously explosive craft beer industries. With the explosion of trademark applications in the industry, it's no surprise that a cottage industry for legal intellectual property services specifically for beer brands has sprouted up. We've already begun to see the fallout from the a once-friendly and fraternal industry devolving into protectionism, but the only sane read on the data is that it's going to get a lot worse in short order.But, lest you think this is some uniquely American problem, a report out of the UK shows that things are going to be equally insane there, too. We have previously discussed UK intellectual property law firm RPC's noting that trademark applications in the UK had doubled over the past decade, with a 20% uptick in applications in 2017 alone. A new report puts some reason to those numbers and it's likely not what you're imagining. Far from this being a result purely of the growth in new breweries entering the market, this has more to do with established breweries looking to expand trademark portfolios for everything they produce.

Some major breweries are following the craft beer model of having a larger range of trademark protected products, not just buying craft brands through mergers and acquisitions, but launching more products under their own marque. One example of this is Diageo-owned Guinness, which now produces a range of lagers and pale ales. RPC said the UK craft beer industry has followed the explosive growth of the sector in the US.
You can think of language like real estate, with trademarks being houses built on that real estate. What is happening here is that property owners are buying up 10, 20, 30 parcels of land and holding on to them, preventing newcomers from using that land themselves. It's not so much a neighborhood of competing interests as it is a neighborhood of a few competitors busily locking everyone else out. This is legal, of course, but it is also purely anathema to the way the craft beer industry operated for decades.The end result is predictable. Language is something of a finite resource. Yes, we can create new words for brands from the ether, but the vast majority of brands are some combination of existing words and phrases. With a limited number of those, moneyed interests gobbling up that finite resource for itself is going to serve to either keep new players from easily entering the market, or subjecting those new players to the risks of litigious and jealous trademark rightsholders. Again, this is the opposite of how the craft beer industry got to be so healthy in the first place.And that outcome, of course, pushes everyone into the vicious cycle, as legal groups advocate protection from this ownership culture in the form of engaging in ownership culture.
The legal company also said the rise in the number of beer trademarks has inevitably led to a number of disputes in the sector and this has emphasised the need for businesses to protect their brands from the outset.
Or we could, you know, just go back to doing business the way it was done a mere ten years ago and all be more happy and successful. But, sure, let's trademark all the things instead.

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posted at: 12:52am on 26-Oct-2018
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Victims' Rights Laws Being Abused To Hide The Identities Of Cops Involved In Use Of Force Incidents

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A law filled with good intentions and vague wording is, more often than not, a law named after the victim of a crime. So-called "Marsy's Laws" are being passed in states that grant crime victims extra rights, often at the expense of the accused's Constitutional rights. As Scott Greenfield explains, "Marsy's Laws" insert crime victims into a process that isn't theirs to be inserted into. Once a crime has been committed, the government takes over and it's between the prosecutor and the accused from that point forward. As harsh as it may sound, crime victims aren't in need of extra rights. Any effort made to "fix" this nonexistent problem only deprives others of their rights.

Prosecutors represent the government, not the victims or their families. The only party with rights in a criminal courtroom is the defendant, both because the Constitution provides it and because the defendant is the only person whose liberty is at stake.

It’s not that there is no way for a victim, or family, to obtain “justice.” They can sue civilly for their loss, in which case they will be a party to the proceeding, will be capable of choosing their own strategy and pursuing it as they deem fit. But the force of the state, the power of the police, the punishment of imprisonment or worse, is not there for the sake of the victims. It’s not theirs to use, and they get no say in the decisions that are ultimately made.

Most of these laws grant crime victims extra privacy. The laws block the release of identifying info about victims under the theory this will head off harassment of victims and their families. This privacy shield contains no exceptions for government employees, so of course it's being abused to protect people whose public service positions wouldn't normally allow them to keep their names out of the news. Scott Shackford has more details at Reason:

What on earth does a victim's rights law have to do with a police officer demanding to conceal his identity from the public? According to the Rapid City Journal, the officer in question shot 21-year-old Kuong Gatlauk following a confrontation during a traffic stop. According to the police report, Gatlauk made statements intending some sort of self-harm and fled from a police vehicle. In a confrontation, he apparently threw a beer can at the trooper and then tackled the trooper and tried to steal the trooper's gun, according to this report. The trooper was able to keep his gun and shot the suspect twice.

Because Gatlauk was subsequent charged with assaulting the trooper, the trooper is claiming the right under Marsy's Law to have his or her name kept confidential, even though this action happened in the course of public police work and much of the records involved are public records. The state's attorney general has agreed.

Considering how easy it is to "assault" an officer during the course of an arrest, this law could be used to hide the identities of officers accused of deploying excessive force or other unconstitutional policing. South Dakota's version of the law doesn't even require criminal charges to be officially filed by prosecutors for these protections to take effect. All it takes is being booked on charges, even if prosecutors decide not to move forward.

All the good intentions in the world won't undo the collateral damage. Police officers -- who already have access to a wealth of extra rights -- now have one more to use to further separate themselves from accountability. And it's all because tragedy tends to blind legislators to the possible negative side effects of feel-good legislation that grants one group special rights at the expense of everyone else.

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Fan Translator Likely Finds His Work In Official Game Release And Is Totally Cool With It

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Fan translations of movies and video games, while wildly popular in many different countries, have also come under recent attack. Claims of copyright infringement have been leveled against many sites and groups that put these translations together, with the theory being that it violates copyright to make works understandable to fans in countries where, often times, a translated version of the work isn't even on offer. If that sounds stupid and protectionist to you, ding ding ding, you're right.But it's somewhat interesting to see this scenario happen in reverse, and note how different the reaction from fans are when they find their hard work in official releases, without credit. Meet Francesco, an Italian game developer with a particular affinity for a game that I've honestly never heard of.

Francesco, who also goes by Mewster online, is a 25-year-old game developer in Italy. He told Kotaku over Discord private messages that he started translating The World Ends With You when he was sixteen."I decided to approach it only because I really loved The World Ends With You and I wanted to keep 'living in its world,' and in the same time, do something to let others who couldn't understand its language play this game," he said. "I found out that I like to translate, and being able to change a word and see the edit 'in real time' on the final game was really satisfying."
And so he completed this labor of love almost entirely solo, with a second person working only on translating the cut scenes. This was purely about his love for the game and making a translated version for other Italians to enjoy. Pretty cool.Then The World Ends With You got a port for the Nintendo Switch, with an Italian translation being included in the release. Francesco was thrilled and eagerly watched a series of let's-plays to see how his translation compared with the official release. Well, either he did a very, very good job, or the game publisher took silent notice of his work.
It didn't take him long to recognize what he says are undeniable similarities to his own work. Francesco said that some phrases were cleaned up and translated in a different way, but he recognized the majority of the work as identical to his own translations, right down to where the Switch port version had placed line breaks in the word balloons.Although Francesco hasn't seen the whole game, he said that, "according to what I had seen I could say that 90% of the main story was a possible estimate," in terms of how much of his work he believes they used.
Now let's stipulate the obvious: the title and its story text are protected by copyright by the developer and rightsholder. Were Fransesco to complain, the developer/publisher would likely point that out to everyone paying attention. And they'd be right. But that doesn't remove the moral failure that is using someone's -- a fan's no less -- hard work without bothering to give them an ounce of credit. Were the shoe on the other foot, you can imagine the hell that would be raised.But for fans? Anger isn't so much a part of the equation.
"The best I could hope for is an official acknowledgement of what happened, but I'm happy just in seeing my translation in the official game," he said. "I hope it will remain in the game after all. It means they liked 90% of my translation."
The question is why more content makers can't take their cue from fans like this and behave just as gratefully for the fans out there translating their works. These are, again, almost always labors of love, not threats to the content creator. So why are fans so much better at being awesome than far too many of the creators they support?

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Interpol Alert Issued By Turkey For Exiled Journalists President Erdogan Wants To Toss In Jail

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Turkey's government has already locked up more than 70 journalists -- most of them in the wake of a failed coup. President Recep Erdogan says the imprisoned journalists are terrorists and criminals, but rather than offer evidence of wrongdoing, Erdogan just keeps throwing more of them in jail.

The notoriously thin-skinned president has been eliminating dissent and criticism since he took power, so there's no reason to give his accusations of criminal activity credence. Erdogan has leaned on favorable laws elsewhere in the world to press for criminal charges and extradition of citizens of other nations who've offended his delicate sensibilities.

As a player on the world stage, Erdogan and his government will use whatever tools they have available to continue to eliminate their critics. It appears Erdogan is now asking the world's police forces to help him track down journalists he hasn't yet jailed. (h/t Mutlu Civiroglu)

Journalism in Turkey has come under renewed scrutiny after an Istanbul court issued an international arrest warrant for two prominent writers living overseas.

In a hearing against journalists linked to the Cumhuriyet newspaper, the 27th High Criminal Court said it would request the issuance of Interpol “red notices” for Can Dundar and Ilhan Tanir. The order notifies all Interpol member states that the individual has pending arrest warrants.

Mr Dundar, the newspaper’s former editor-in-chief, and Mr Tanir, its ex-Washington correspondent, currently live in Germany and the US respectively.

No one's under any obligation to arrest and extradite these "criminals." And certainly no one should feel they have to enforce Turkey's draconian anti-press measures halfway around the world. But it will make travel difficult, as databases will be pinged and info alleging criminal activity will be returned. If they happen to travel to a country that feels compelled to take Turkey's disingenuous government at its word, these journalists find themselves being sent home to face ridiculous charges in a kangaroo court.

Critical speech is its own crime in Turkey, despite what Erdogan says publicly.

“Turkey numbers among the world’s leading countries in matters of press freedom, the most advanced communications technologies, social media, the internet and journalism,” he said on Journalists’ Day in January.

You can only get away with saying something this ridiculous in a country where a large majority of news services are under direct government control and internet blockades are only a kill-switch away. When most of your journalists are in jail or have left the country, you're not in the running for Free-est Press in the World awards. You're just a thug in nation-state clothing.

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Mexico Reverses Ban On Selling Roku Hardware After Absurd Piracy Ruling

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So just about a year ago the Mexican court system decided to ban all Roku streaming hardware from being sold in Mexico. The ban was the result of legal action taken by Mexican cable company Cablevision, which accused Roku of facilitating piracy. How? While Roku devices are more locked down than many of the more open home media PC solutions (also the target of endless pearl clutching and hyperventilation by the entertainment industry), users can install certain unofficial, third-party "private" channels that provide access to pirated live streams of cable content.While Roku went out of its way to try and lock down their hardware, some users paid hackers a few bucks to crack open and modify the devices anyway, letting them access the dubious third-party channels in question. While this obviously wasn't Roku's fault, Cablevision believed Roku should be punished for the behavior of the company's customers, and declared it was doing Mexican consumers a public service:

"Cablevision cannot allow the content that it licenses from domestic and foreign companies to be illegally used, Cablevision spokeswoman Maria Eugenia Zurita told Reuters via email. We would also like Roku Inc to better supervise the use of its software so that it's not used inappropriately."
Roku quickly appealed, and while a federal judge initially overturned the ban, a subsequent ruling restored it, so the ban has been in place for the better part of the year, costing Roku a notable sum. Roku subsequently jumped through all manner of hoops in a bid to please the courts, including building a new internal team specifically dedicated to cracking down on piracy, posting notable warnings to users who decide to install unofficial channels, and renaming the channels from "private" to "non-certified" in a bid to make it even more obvious Roku wasn't sanctioning the behavior of its users.Fast forward to this week, and the 11th Collegiate Court in Mexico City has ruled to again overturn the ban, opening the door to Mexican consumers being able to, you know, buy whatever hardware they like and use the devices as they see fit.
"The Court reportedly acknowledged Roku's efforts to keep pirated content away from its platform, an opinion also shared by Cablevision. However, should pirate channels appear on Roku in the future, Cablevision warned that it would take further legal action to have those sources blocked via the Mexican Institute of Industrial Property and other local authorities."
Again, consumers are just using a computer to access content online, and what that content is really shouldn't really be seen as Roku's responsibility. The irony here is that Roku has spent a lot of time kissing up to entrenched cable operators here in the States, helping them scuttle efforts to make traditional cable boxes more open. Of course much like the cable industry, the more locked down Roku makes its products, the more likely consumers are to flock to products that actually let them do what they want, which obviously doesn't necessarily include piracy.The same hysteria surrounding Roku has been doubly-applied to programs like Kodi, which (in much the same way that Roku is just a computer) is just software that (with the help of plugins) can be used to access copyrighted content... and a laundry list of other things. This nannyish approach to what hardware and software can be used and how is an unproductive and expensive game of Whac-a-Mole, which is why we've pretty consistently argued that embracing openness and innovation tends to be a notably more productive and profitable solution.

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posted at: 12:52am on 24-Oct-2018
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El-P: We Make Our Music Available For Free And Trust Our Fans To Support Us, And We Always Will

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In the pantheon of massively talented musical acts that also get and embrace the power of the internet, of using free music to make money, and of emergent business models, the folks behind Run The Jewels stand particularly tall. The duo, Killer Mike and El-P, have managed to make themselves household names through a combination of freely available music, a positive and often humorous level of interaction with their fans, and the kind of forthright public statements that create a bond with those that follow them. It's all so perfectly well done that you would think Run The Jewels was following some kind of a script, but it is pleasantly obvious that these are just really good guys who happen to also make fantastic music. They also occasionally, and far too infrequently, write blog posts, including for Techdirt.The most recent version of all of this started with a Twitter user complaining to El-P that he or she typically listens to RTJ on Spotify and had no idea where to get their albums. Another Twitter account piped up confirming that, like the rest of the RTJ catalog, the albums were available for free download on the group's website. That same Twitter account mentioned that he also bought the albums through iTunes purely out of a desire to support RTJ. This, of course, happens quite frequently, which is virtually ignored by the "Piracy is killing music, argghghgh!" crowd.What doesn't happen as frequently is what came next from El-P.

And we always will. That's how you know when a philosophy has moved beyond a tryout of a gimmick and into a more dogmatic adoption of a business philosophy. And there can no longer be any doubt that behaving this way is simply good business. However, I'll be damned if all of this doesn't come off far more genuine than had it come out of a boardroom of suits looking to maximize profits. The truth is that El-P is just a really, really good dude. This is the impression one gets seeing interactions like this. And it fosters a bond with the community of fans of RTJ.

There are many more replies like that. And why not? Why wouldn't a musical act being human and awesome to its fans not foster a closer bond and desire to support that act? That seems like common sense to me, even as it eludes far too much of the music industry.

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One Company's Story Of The Soft Cost Of Aggressive Trademark Enforcement

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When we talk about trademark disputes around here, we're often talking about them at the start of a bullying process or at the conclusion of a trial. Those are the natural checkpoints for covering these kinds of disputes, with either the initiation of the dispute, often times specious, or the conclusion when an outcome is reached, often times unfortunate. Less discussed but certainly as important are the softer outcomes of trademark bullying and disputes. And it's useful to highlight just what it can cost a small entity that is victimized by all of this.Dick Fowles and Kate Ackerly opened a clothing store in 1993 called Peter-Blair Accessories, named after the duo's godchildren. Out of the blue in 2009, Fowles and Ackerly received a letter from Blair Corp., a discount retailer of accessories that primarily sells its goods online. Blair Corp. too sold ties and accessories on its website, though they were significantly different in terms of price and quality. The letter accused Peter-Blair Accessories of infringing Blair Corp. trademarks by selling its goods online. After a great deal of back and forth, Blair Corp. agreed to allow the smaller clothier to sell only its own branded ties online. Nothing else.This went on for nearly a decade, coinciding with the exact time when online clothes shopping took off.

“It was probably a lot (of lost revenue),” Snyder said. “People were starting to buy on the web more and more. That whole chunk of our business was gone.”“And people aren’t wearing ties like they used to,” Ackerly said. “We needed to branch out with the accessories company, but we couldn’t because of this infringement.”
Business was constricted due to the lack of online sales. The two went so far as to explore changing the business name to get around all of this with a creative branding company. While they eventually decided against the name change, that branding company introduced them in 2017 to a trademark attorney, Pike IP Law. That attorney found that many other retailers had attempted to get trademarks in the clothing business that included the term "Blair", with Blair Corp. opposing and forcing many to back off their applications. In some instances, however, the smaller retailers would push back and get some kind of settlement that allowed for a good chunk of goods to be sold online.A strategy was formed.
“(Pike) said we should purposefully put extra items (to sell online) into the trademark that we weren’t interested in pursuing,” Snyder said. “So that if Blair wanted us to concede in some way, we’d have something to give up.”
After putting its application in, Blair Corp. immediately opposed, initially filing for two extensions to oppose Peter-Blair's application. After some back and forth, true to form, Blair Corp. settled, with Peter-Blair giving up the fluff in its application that it didn't really want anyway. With the opposition dropped, Peter-Blair Accessories got its trademark in August. While this was reason for celebration, nothing can make up for nearly a decade of lost revenue due to a threat letter over trademarks that Blair Corp. barely ended up enforcing anyway.Sadly, this story doesn't have the happiest of endings. If you thought Fowles and Ackerly had taken the lesson from all of this to be the burden and dangers of jealous IP enforcement, think again. Missy Snyder, commenting below, is Peter-Blair's COO.
“(Dunlap and Pike) made us realize how damaging it was to not copyright some of our designs. There are companies that have copied (our designs), like Vineyard Vines, who’s much bigger than us. Bernie and Tricia have sent cease-and-desist letters on our behalf,” Snyder said.
C'est la vie.

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Texas Teens Can't Graduate High School Until They've Been Told How To Behave Around Cops

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To graduate from high school in Texas, you must first be able to show you won't provoke police officers into shooting/tasing/beating you during a traffic stop. That's according to a new state law that ran through the legislature under the guise of solving police/community relationship problems. (via Popehat)

In the aftermath of several fatal police shootings of unarmed citizens, Texas lawmakers sought to pacify tensions between law enforcement and civilians. The state legislature brought civil rights groups and law enforcement organizations together to develop a solution: the Community Safety Education Act, which was signed into law last year.

The bill requires any student entering ninth grade in the 2018-2019 academic year and thereafter to participate in a class and watch a video instruction on how to interact properly with officers during traffic stops. Without a notation of attendance on their transcripts, seniors cannot receive diplomas.

To "pacify tensions" brought about by cops killing unarmed people, we're instructing teens to become docile subhumans who should only respond to the presence of law enforcement in the manner law enforcement prefers. That's the gist of the Community Safety Education Act Instructor's Guide [PDF], which not only tells people to remain suitably cowed during traffic stops, but also gets the law wrong.

The problems with the instruction manual (and the law... and required course itself...) begin at the beginning, in the "Tips for Educators." The guide says instructors should remind students of their rights, as well as warn them that exercising them could get them killed.

Students may ask about citizens videotaping traffic stops. It is a citizen's right to videotape. Drivers and passengers should be aware that unknown items in a citizen's hand may cause safety concerns for officers.

In short, it's best not to record a stop for your own personal safety because there's no telling what a professional highly-trained in law enforcement and force deployment might do if they see something in someone's hand -- even if that something is 1,000,000x more likely to be something everyone carries with them (a cellphone) than a weapon. Most people aren't going to escalate a traffic stop into a murder one charge. But that's hardly reassuring to highly-trained law enforcement officers, who are led to believe every interaction with the public carries the potential of death and destruction and respond to every movement like bunnies scattering at the sound of a stepped-on twig.

Since highly-trained law enforcement officers are completely unpredictable, it's up to Texas' education system to crank out harmless teen drivers. Hence the stupid law and the stupid course, which comes with graduation strings attached.

The "notes for drivers" says it's "recommended" officers treat drivers courteously, but there's certainly no law requiring courteous behavior, much less one that withholds a police academy diploma until would-be officers of the law complete their "Don't Be An Asshole" course.

The advice given is basically this: do everything a cop tells you unless they tell you to stop doing it or to do something else. The course says students have the right to refuse vehicle searches, but kind of portrays assertions of rights as a way to get arrested.

And the guide gets the law wrong: specifically, Texas' "failure to identify" statute. Here's what the guide says:

Although it is lawful for you to remain silent during a traffic stop, you are required by law to truthfully identify yourself when asked to do so by an officer. A driver or passenger can be arrested for giving false identifying information to an officer.

The second part is true. The first part isn't. That's OK. Texas law enforcement officers can't manage to wrap their minds around this law, so it's unsurprising a teacher's guide put together by politicians is inaccurate. The law actually says [emphasis added]:

A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

A traffic stop is a detention, not an arrest. It likely makes little difference in the context of a traffic stop, where documents asked for by officers will likely identify the driver with or without their verbal input. But placing this misinformation inside a required course will likely cause students to think this applies everywhere, not just during traffic stops. It doesn't. An officer needs to arrest a person before they can legally demand identification. And officers can't use a refusal to provide identification as the basis for an arrest.

Passengers aren't required to ID themselves. They're only forbidden from providing false information -- the same as the driver. But the teacher's guide makes the same mistake again in its "Notes for passengers."

Although it is lawful for you to remain silent during a traffic stop, you are required by law to truthfully identify yourself when asked to do so by an officer.

The law does not require this. It does not require it of drivers, even though proving you can legally operate a vehicle tends to undermine any "remaining silent" about your identity. Passengers, however, have nothing to prove, so this course is telling high school students something that simply isn't true and will only contribute to Texas law enforcement's continued abuse of the statute.

It would be bad enough if the mandatory course was limited to "pacifying tensions" by implying unpredictable civilians are what really needs to be fixed. But the course goes even further by getting the law wrong. So, high school students will be forced to attend a pointless course containing misinformation to be considered educated enough to secure a diploma.

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This Week In Techdirt History: October 14th - 20th

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Five Years AgoThere was plenty of NSA apologia again this week in 2013. Keith Alexander was claiming that he was protecting civil liberties by violating them and playing the fear card by claiming people will die due to the Snowden leaks, while the lawyer who helped give legal cover to Bush's warrantless wiretapping was claiming everyone will grow to love the intrusive NSA, and Dianne Feinstein was playing the 9/11 card (and being debunked by the ACLU).Meanwhile, the latest information from the leaks revealed that the NSA was collecting email contact lists and instant messaging friend lists overseas with no oversight, that the agency was involved in the drone strike program, and of course that the agency was in fact drowning in a glut of data.Ten Years AgoThis week in 2008, the president finally signed the ProIP bill and created America's copyright czar position. We took a closer look at the MPAA's lawsuit against RealNetworks (and how it was all about controlling innovation), while the RIAA was appealing the mistrial ruling in the Jammie Thomas trial, and a German court was finding Google Images thumbnails to be a copyright violation. Unexpectedly, the McCain campaign sent a letter to YouTube urging them to consider and protect fair use when processing DMCA requests, and YouTube offered up the excellent response that they can't give the campaign special treatment, but they hope McCain will fix the law. Meanwhile, Larry Lessig was giving his own impassioned defense of fair use and remix culture.Fifteen Years AgoThis week in 2003, the EFF found another person who was wrongly accused of file-sharing and sued by the RIAA (they wouldn't be the last), just as the RIAA was commencing round two of its shakedown scheme by, as promised, offering people a chance to pay up before being sued (how nice of them). We also took a closer look at the RIAA's lawsuits against Grokster and Morpheus, and how their true ambitious goal was to overturn the Betamax precedent that makes video tape machines legal. Also this week, Brewster Kahle was fighting against the DMCA in an attempt to preserve old software.Meanwhile, lots of companies and industries were really struggling to adapt. Some people were discussing possible futures for usual-consumer-electronics-leader Sony after Apple beat it to the punch on smartphones, print publishers were basically dragging their heels about this whole internet thing, and Polaroid reached the highly questionable conclusion that its future was in digital photo kiosks.

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Apple Demands Retraction Of Bloomberg's Big 'Chip Infiltration' Story; Bloomberg Has Some Explaining To Do

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A few weeks ago, Bloomberg published a giant story claiming that Chinese spies did a somewhat daring supply chain hack on American big tech firms. The gist of the story was that servers from Super Micro had hidden chips that somehow were then used by Apple and Amazon (not to mention the US government), that allowed someone in China to access certain data. The story was a blockbuster that got everyone talking. But, almost as soon as it came out, a bunch of people started raising questions about the story. While the Bloomberg reporters claimed over a dozen sources, both Apple and Amazon came out with incredibly strong denials. Way stronger than is common in these situations. And while I know some cynical people insist that companies will lie about this stuff all the time, that is not actually true. Some companies may misrepresent things, or try to play down stories, but outright fabrication is not at all common (and the consequences of a company doing it would be severe). And here, both Amazon and Apple's denials were so clear, so specific and so adamant that it raised serious questions about the reporting.Since there was so much confusion over it all, we held off on writing about it, figuring more information would come out in the days and weeks after the initial story. And so far, nearly all of the "additional info" has only served to raise significantly more questions about Bloomberg's reporting. Various government and intelligence agencies all claimed they had no evidence to support these claims. Again, some will argue that they are lying, and (again) while those agencies may have a history of misrepresenting things, the denials here were clear and unequivocal. The UK's National Cyber Security Centre (a part of GCHQ) said they completely supported Apple and Amazon that no such attack occurred. The US Department of Homeland Security said the same thing. Dan Coats, the US Director of National Intelligence said the US intelligence community has seen no evidence of such an attack, which certainly undermines the Bloomberg story. Some of the folks quoted in the Bloomberg article even questioned the accuracy of the article with one going so far as to say the article that he is named in... "didn't make sense."Also, as reporter Nicole Perlroth noted, one of the reporters on the Bloomberg story -- Michael Riley -- had also done a story back in 2014 making bold claims that the NSA had exploited the Heartbleed bug, and multiple other reports ripped that story to shreds, with multiple people denying it and no one else confirming it.Now, with this story, Apple has done something it's never done before: asked Bloomberg for a retraction of the article. That's a pretty big move -- and Bloomberg says it still stands by its reporting (as it did with the Heartbleed story).However, at this point, Bloomberg has whittled away whatever benefit of the doubt there was left and set fire to the scraps. It's difficult to believe that Bloomberg's story was accurate, and the company and its reporters owe everyone an explanation -- or at least some additional evidence to support the reporting. I don't doubt that there is a kernel of truth in the story -- but given the vehement and thorough response from everyone, it certainly seems likely that the reporters on the Bloomberg piece misunderstood something big, leading to misreporting of things in a way that leads to a very inaccurate picture of what's going on. Bloomberg should, at the very least, appoint someone else to go through the work put in by reporters Michael Riley and Jordan Robertson, and explore whether or not the story really is accurate, and why it is that basically everyone is saying it's not.Reporters can, and do, make mistakes. How they respond to such mistakes is the real marker of the ethics they and the organizations they work for hold. Considering Bloomberg stood by that Heartbleed story, perhaps we shouldn't expect such a reckoning at the publication -- but, at the very least, it's going to lead plenty of people to write off Bloomberg as a credible source on issues like these, and that's unfortunate, given that there are some really big and important stories having to do with computer security right now. Having one major publication show itself to be untrustworthy in its coverage would be very bad.

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Whistleblowing About Swiss Banks' Bad Behavior Just Became Safer

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Whistleblowers play a vital role in releasing information the powerful would rather keep secret. But the former pay a high price for their bravery, as the experiences of recent whistleblowers such as Chelsea Manning and Edward Snowden make plain. Another whistleblower whose life has become very difficult after leaking is Rudolf Elmer. He has a Web site about his actions and his subsequent problems, but it's not the easiest to navigate. Here's Wikipedia's summary of who he is and what he did:

In 2008, Elmer illegally disclosed confidential bank documents to WikiLeaks detailing the activities of [the Swiss multinational private bank] Julius Bär in the Cayman Islands and its role in alleged tax evasion. In January 2011, he was convicted in Switzerland of breaching secrecy laws and other offenses. He was rearrested immediately thereafter for having again distributed illegally obtained data to WikiLeaks. Julius Bär as well as select Swiss and German newspapers alleges that Elmer has doctored evidence to suggest the bank engaged in tax evasion.
According to a new article about him in the Economist, Elmer has undergone no less than 48 prosecutorial interrogations, spent six months in solitary confinement and faced 70 court rulings. The good news is that he has finally won an important court case at Switzerland's Supreme Court. The court ruled that since Elmer was employed by the Cayman Islands affiliate of the Zurich-based Julius Bär bank, he was not bound by Switzerland's strict secrecy laws when he passed information to WikiLeaks. Here's why that is a big deal, and not just for Elmer:
The ruling matters because Swiss banks are among the world's most international. They employ thousands of private bankers offshore, and many more in outsourcing operations in countries like India and Poland. Many foreign employees are involved in creating structures comprising overseas companies and trusts linked to a Swiss bank account. Thanks to the ruling, as long as their employment contract is local they can now leak information on suspected tax evasion or other shenanigans without fear of falling under Switzerland's draconian secrecy law, which imposes jail terms of up to five years on whistleblowers.
Sadly, Elmer's problems aren't over. According to the Economist article, he was found guilty of forging a letter and making a threat, and has been ordered to pay SFr320,000 ($325,000) towards the costs of the case. He maintains this was imposed on him as "revenge" for prevailing in the main part of his case. Certainly, in the light of the Supreme Court's ruling in favor of whistleblowing, he is unlikely to have won any new friends in the world of Swiss banking.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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SLCC/FanX Gets A Stay On $4 Million In Legal Fees For SDCC Pending Appeal

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The whole saga of the trademark dispute between the famous San Diego Comic-Con comics convention and the smaller Salt Lake Comic Con has been a long and stupid one. Despite everyone with a working brain knowing that the term "comic-con" is both generic and descriptive, SDCC has a trademark on the term that it managed to wield like a legal sword attempting to slay SLCC. While a jury trial returned only a $20k judgement, the court then awarded $4 million in legal fees in favor of SDCC, arguing that SLCC's legal team attempted to jam up the trial process and timeline with its tactics. After all of this, SLCC changed its name to FanX, a whole bunch of other conventions proactively changed their own names, and FanX promised to appeal everything.But it was an open question if SLCC/FanX would survive long enough for the appeal to take place. A $4 million dollar payout to SDCC, according to SLCC, would simply have crippled it and put it out of business altogether. This was the argument made to the appeals court, in which SLCC/FanX asked for a stay on the payments pending the appeal process. Fortunately, the court agreed to delay the attorney's fees payments.

With the judgment set to come due Oct. 22, FanX organizers sought a stay from the 9th Circuit Court of Appeals last week, arguing paying the bill in full now would "destroy" the business, hurt Utah's economy and prevent them from continuing with their appeal.However, organizers argued that if they were allowed to wait to pay, FanX would be able to continue operating and, if they ultimately lose their appeal, they could pay the judgment in full.In FanX wins the appeal, the judgment could be invalidated.
And not just that, but FanX is also seeking to have the entire verdict that resulted in this award appealed as well, arguing that its lawyers were prevented from making sound arguments that "comic-con" is a generic term, which it absolutely is.But two things should be immediately obvious. First, this stay is perfectly just. A legal fees award that would cripple a party from defending itself on appeal is the sort of thing that seems purely outside the realm of how the legal process is supposed to work. The second is that this attorney's fees award is absolutely just as bonkers as I claimed it was when it was announced. To have that kind of number in fees awarded attached to a judgement that was in the five figures breaks all barriers of simple common sense.At least this way, we'll get to see FanX take this to appeal.

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posted at: 12:50am on 19-Oct-2018
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Mississippi Law Enforcement Performed $200,000 Worth Of Illegal Forfeitures Because It 'Didn't Realize' Law Had Changed

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Ignorance of the law is no excuse, us lowly peons of the American justice system are told. The same does not apply to law enforcement, whose business it is to enforce laws. I mean, it's right there in the name. And yet…

Mississippi police agencies have been seizing cash, guns and vehicles without legal authority for months after a state law changed and police didn't notice.

An Associated Press review of a Mississippi Bureau of Narcotics database shows more than 60 civil asset forfeitures with nearly $200,000 in property taken by state and local agencies under a law that lapsed on June 30.

"Didn't notice." Try using that excuse the next time you, I don't know, hand someone a straw or... um... offer underweight ice cream to consumers. That's the AP's phrasing of the official excuse for law enforcement's inexplicable inability to stay abreast of laws affecting their work.

Here's what officials actually said, which uses more words, but doesn't sound any better.

Mississippi Bureau of Narcotics Director John Dowdy said he didn't know the law had expired until September, when a Rankin County prosecutor notified him.

"Honestly, we were unaware of the sunset provision," he said. "We thought that had been fixed in the legislative session."

Now, this could be a legitimate excuse. But not for a narcotics director who probably had plenty to say about the impending demise of the most profitable part of the state's asset forfeiture program. He could not have been completely "unaware." After all, here he is announcing the roll out of a website listing state forfeiture actions as mandated by the same law Dowdy now claims he didn't know much about.

It might be a legitimate excuse for a federal official who may not know the legislature included a sunset provision that gave legislators a chance to kill the passed law before it went into effect. Some efforts were mounted to roll back the reforms, but they both died without moving forward.

Because law enforcement can't follow the law, lots of people will be getting their stuff back. The Tampa Bay Times article says the Mississippi Bureau of Narcotics is offering to return $42,000 worth of property it illegally seized -- a phrase that makes its effort sound far more magnanimous than the reality: relinquishing stolen property.

But this screw up isn't going to keep it from seizing what it can, no matter how petty the amount. The thirty-day window on seizures under $20,000 is still open on a few cases, so law enforcement is still moving ahead with a few small-ball forfeitures.

Dowdy said agencies that seized property could still sue, seeking a judicially-sanctioned forfeiture, if less than 30 days elapsed. In Harrison County, for example, officials filed suit to seize $939 from Danielle Laquay Smith on Sept. 26, exactly 30 days after seizure.

The new law requires all forfeitures to be handled in court. The old law only required that on seizures above $20,000. There's more than $200,000 in illegal seizures on the books, and the potential return of $42,000-worth still leaves a lot unaccounted for. And much of that appears to be held by another person who can't keep track of legislative developments despite his position as a government official.

In northern Mississippi, District Attorney John Champion said, "I wasn't aware of that," when asked about the change. Police agencies in his five-county district, particularly in DeSoto County, have the majority of questionable seizures listed statewide.

Officers are Johnny-on-the-spot when it comes to perceived violations by citizens, but blissfully unaware of legal changes directly affecting their daily work. This is absurd. And it is the status quo. Prosecutors -- who directly benefit from forfeitures -- aren't aware either, most likely because knowing the law would adversely affect a valuable revenue stream. This is inexcusable, but it's also likely to go unpunished. The law is clear on the matter: negative effects of legislation shall be borne by the general public.

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Chinese Professor Argues Google Should Launch A Censored Search Engine In China

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There's been quite a lot of reasonable uproar over the leaked plans for Google to re-enter the Chinese market with a censored, locked down search engine. There's a lot of history there, but giving in to the authoritarian government's desire to block access to all sorts of content would seem to go very much against Google's stated focus on helping provide access to information around the globe. There have been numerous recent reports of Google employees protesting this decision internally, and even some employees have quit Google to put an exclamation point on just how against this idea they are. Recently an opinion piece in the South China Morning Post from a Chinese professor started making the rounds, arguing that "even a censored Google search engine would be better" for people in China than its current main search engine, Baidu.The argument from Bai Tongdong, a professor of philosophy at Fudan University, is pretty straightforward. More or less, it argues that Baidu is not a very good search engine. Google, even in a heavily censored fashion, is almost certainly going to be a lot better, and thus it will certainly aid in getting everyday people in China more access to information:

As a college professor, I find Baidu's search results on scholarly matters deeply frustrating, because they don't lead me to the webpages I wish to find. In contrast, Google's search results are far more useful. Thanks to my part-time employment at New York University's law school, I can use its virtual private networks (VPN) to access Google, a benefit that I consider more valuable than the extra pay.And it is not just terrible search results, and the lack of access to useful tools such as Google Books. Baidu's shameless commercialisation of its search engine has been the subject of controversy. For example, companies could - and maybe still can - bid for the top spots in Baidu's search results, and users are not warned that these results are the outcome of commercial bidding and not sorted by relevance, as is the practice with Google.In one case that sparked a public outcry, a young man used Baidu to search for treatments and clinics for the rare form of the cancer he suffered from. The man's family spent over 200,000 yuan (US$29,000) on an experimental treatment at one of the for-profit hospitals that topped his Baidu search, but the treatment was unsuccessful and he died. The search results could have caused him to miss potentially life-saving treatment.
Undoubtedly this is true. It would certainly probably improve the search engine results and options for Chinese residents. But that's not really the point of why Google left China nearly a decade ago, nor the reason why people are concerned about its plans for a censored re-entry. I don't think anyone denies that it probably would be useful for Chinese residents and citizens. The question is at what cost does this come? Giving into an authoritarian government, hiding important and often useful information -- including information critical or mocking of the Chinese government -- is something that many people think is fundamentally wrong. Appeasing authoritarian governments never leads to good outcomes.The article suggests that since it would improve the lives of the average Chinese individual, and because Google could always pull out again if it felt pressured to go to far in the moderation of the search engine, that this shouldn't be a huge concern. But that ignores the idea that having the government censor the search engine results in the first place should already be seen as a bridge too far.Finally, he argues against the idea that Google staying out of China leads to China changing its policies, and thus, Google should re-enter the market:
...the simple fact is that, although it has been years since Google exited China, nothing much has changed or is expected to change for better in those areas. While the situation can't worsen, there is a chance that Google might prompt an improvement.In a world in which the only choices available are between the purely good and the purely evil, that is, in a world that has never existed and will never exist, do no evil would be a good guiding principle. In the world we live in though, the practical motto should be do the lesser evil. For, after all, a morally compromised Google is still better than Baidu.
That's really throwing in the towel entirely, though. The entire argument is based on the idea that Google hoped that leaving China would prompt some change in its unhealthy censorship policies. But, if true, that would entrust to Google a lot more power than I think even the biggest Google booster thinks the company has. It didn't pull out of China to try to force China's hand. It pulled out of China because it believed China's censorship and surveillance campaigns were simply wrong. That hasn't changed, and that's why Google shouldn't give in here. It's not about some big calculus about what's better for whom. It's about not censoring content at the behest of an authoritarian censorship-happy government.

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posted at: 12:50am on 18-Oct-2018
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ISU Student Groups Changing Names En Masse To Protest School's Ridiculous New Trademark Policy

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You will recall that over the past few years, we have been discussing how Iowa State University essentially did everything wrong concerning an alumni group running a pro-marijuana organization that made use of school symbols and iconography. After initially approving the group's use of school trademarks, several members of the state's conservative legislature got involved, leading to the school rescinding that authorization. NORML, the name of the group, sued the school, claiming all of this was a violation of their free speech rights. The courts agreed, eventually to the tune of a $600k judgement, meaning that school wasted over half a million dollars of taxpayer money to fail at trademark bullying.You might have expected that this would serve as a delightful education for the school as to the reasons why they don't want to be a trademark bully. You would be wrong, of course. Instead, the school's next step was to immediately rewrite its trademark use policy, making it laughably restrictive and essentially attempting to give the school broad oversight over all uses of its iconography by student groups. This, predictably, has led to a full on revolt both by many of the school's student organizations and its student government.To start with the student organizations, they are largely dropping ISU connections from their name and branding like a hot stone.

A year ago, Iowa State University's student chess club was easily tied to the university through its name. Now, it’s the Ames Collegiate Chess Club. The student aviation group had been the Flying Cyclones. Now, they’re the Ames Flyers. And the student space club, which had had “Iowa State” in its name, is Ames Space Teaching and Recognition Association.Why the changes? University administrators over the summer tightened Iowa State’s trademark policy by limiting most student organizations' access to trademarked references to the institution.
As noted elsewhere in the post, ISU has a habit of puffing its chest out over its large roster of student-led organizations and clubs. Yet, because of its heavy-handed new policy, those ties to the university are being severed, taking those bragging rights away. Where ISU once could be seen as having a rich tradition of clubs and organizations reveling in student participation, a separation line has now been drawn. All because the school wants to choose control over culture.And the students are pissed.
The policy so riled student government members that they unanimously approved a resolution this week requesting the administration, at least temporarily, backpedal from the guidelines that were posted Aug. 1 on ISU’s Trademark Licensing Office website."The administration went about this poorly," Michael Tupper, an ISU student government member, said at this week’s meeting. "They implemented the change in the middle of the summer, when there were no students on campus."In addition, Tupper said during the meeting, “We’ve been told multiple times that the change was not in direct result to the lawsuit. … That is not true.”
A school spokesperson states that the school will review the resolution and then meet with the student government, but it's painfully obvious that it would rather have avoided student interaction altogether through sheer timing. Making such a policy change where the primary effect will be felt by student groups when students weren't even on campus isn't particularly subtle. Meeting with the student government now is CYA, not some kind of olive branch. And that's likely why the student government is not screwing around here.
Some at this week’s student government meeting suggested that if university officials don’t follow through on any requests in the resolution, other actions could be taken, including votes of no confidence or censure.
It's a problem entirely of ISU's own making. And, given the culture that is supposed to be fostered on college campuses, this is about as wholly unnecessary as it gets. As entertaining as it is watching an institution like ISU learn absolutely all the wrong lessons from a well-publicized trademark dispute, it has to be just as frustrating for the students on campus.

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posted at: 12:50am on 18-Oct-2018
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Art, AI & Infringement: A Copyright Conundrum

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I don't want to waste any space with a long introduction, other than to say it's always incredibly frustrating when artists come up with inventive new ways to produce artwork, only to have those efforts met with stupid intellectual property issues. Experimentation is key to the artistic world and we've begun to see how artists are incorporating technology into what they produce. This should be exciting, but all too often that excitement is plagued by legal issues.A case in point of this would be Canadian artist Adam Basanta, who has come up with a bonkers and very cool method for both producing machine-generated art and then validating that art for human consumption by comparing it to real-world artwork made by us lowly apes. Let's start with his setup.

Broadly, Basanta’s machine has two stages: creation and validation.Creation happens with a hardware setup that Basanta likens to a Rube Goldberg machine: two computer scanners tipped on their sides and pointed face to face, endlessly scanning each other, and the results – influenced by shifts in the room’s lighting, randomized settings and an automatically moving mouse – are interpreted by a computer and turned into colourful abstract pictures.The second stage is validation. Another computer running a custom-built program automatically checks each image against an online database of real art made by human hands. If the machine-made image is similar to one that has been human-made, the computer dubs it a success and keeps it; if there is no match, the image is deleted forever.
If that doesn't get your heart beating a little faster, you simply don't care about art. This setup is, at the very least, incredibly interesting, and Basanta's method for validating whether the art produced by the machines is good enough for human consumption or not kicks the interest level into overdrive. His setup generates something like a thousand images a day, with a tiny fraction of that being deemed worthy of retention. The whole thing was good enough to warrant an art exhibit in Canada and Basanta has featured many of the images on his website as well.And that's where the trouble started. Artist Amel Chamandy has alleged that Basanta violated her copyright on a piece she created called "A World Without Trees", as well as the trademark rights she has on her own name. Both claims stem from one of the pieces Basanta's machine setup used to validate its own artwork against and the naming convention it used to denote the new pieces it created.
In June, someone – it’s not clear if it was Chamandy herself or someone who works with her – did a Google search for her name and the name of a 2009 wall installation she made called Your World Without Paper.The first result in the Google search, according to documents filed in court, was Chamandy’s website. But the second and third results pointed to Basanta’s website, because his machine had named one of its own pictures after one of hers. The offending image, some magenta lines on a field of indigo, is called: 85.81%_match: Amel Chamandy “Your World Without Paper”, 2009.
The trademark claim rests solely on the name of the file including Chamandy's full name. It's a silly argument for trademark infringement as the whole point of including the name is to weigh the new art piece against her specific work, which necessarily involves anyone viewing these pieces being informed that they are not the work of the original author. The whole purpose of the validation process is to show what differentiation remains between the new piece and the human-made example. That's not trademark infringement. It's not really even close.As for the copyright portion of this, it's important that you not be fooled by the percentage the machine setup notes in the validation process. You might think that an 85% match would mean the two images are very similar and would share a ton of features that would link the two in the viewer's mind. That's not even close to being the case, as you can see just how different the two images are below.
If that looks like copyright infringement to you, you need your head examined. Indeed, the entire setup here is defined by the fact that this is a totally independent creation -- and the "validation" process only serves to highlight that there is no copying. Indeed, the idea that independent creation is a defense against copyright goes back ages, and this is quite obviously an independent creation. The only reason the other artwork is mentioned at all, because it's the literal coincidence that the computer judged these images similar that leads to the name being mentioned. Judge Learned Hand famously wrote:
... if by some magic a man who had never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an "author," and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats's...
This is a case where "some magic" took place, and one artist "composed anew" something that a computer (but no human eye) judged to have a decent level of similarity to another's work.Were her name and the name of her work never mentioned on Basanta's site, she simply never would have noticed. Nor would anyone else. Ever. And, yet, because Basanta's entire project centers around pointing out the kind of quality his machine setup can produce in artwork by comparing it to real-world creations made by humans, suddenly Basanta is mired in intellectual property claims.And that's what sucks more than anything. One artist suing another, on incredibly specious grounds, is a betrayal of how art is created in the first place. If anything, Basanta was crediting Chamandy and pointing people toward her wider works by doing things the way he did. And this is the thanks he gets, because copyright.

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posted at: 12:49am on 17-Oct-2018
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FBI Releases Guidelines On Impersonating Journalists, Seems Unworried About Its Impact On Actual Journalists

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The FBI's impersonation of journalists raised questions about its investigative activities, none of which the FBI felt like addressing. An Inspector General's investigation of FBI investigations using this tactic found that it was generally a bad idea, but not an illegal or unconstitutional one. Prior to the investigation, the FBI apparently had no clear policies governing this form of impersonation, which it used to snare a school-bombing suspect.

Following the report, a policy was put in place that added some additional layers of oversight but didn't indicate the obvious downside of impersonating journalists: that the people the FBI wants to investigate are going to do a lot less talking to anyone they don't know, which includes journalists attempting to document newsworthy events that might contain criminal activity.

The FBI blew it with one of its other impersonation efforts. As Camille Fassett reports for the Freedom of the Press Foundation, a more recent effort may have put a serious damper on its fake news(person) efforts.

In an even more disturbing incident in 2015, FBI posed as a documentary filmmaker crew in order to gain the trust of a group of ranchers engaged in an armed standoff with the government. The fake crew recorded hundreds of hours of video and audio and spent months with the ranchers pretending to make a documentary.

The FBI tacitly acknowledged these efforts are great for the short-term, but ultimately harmful to the FBI in the long-term. Notably, it's not because they have a chilling effect on press freedoms, but rather because they undermine trust in the entities the FBI wants to impersonate.

The FBI’s own arguments in the case acknowledge the chilling effect on journalism presented by this tactic. In a motion of summary judgment obtained by Freedom of the Press Foundation, the agency argued that it should not be required to disclose details about other instances of media impersonation, on the grounds that “it would allow criminals to judge whether they should completely avoid any contacts with documentary film crews, rendering the investigative technique ineffective.”

The Reporters Committee for Freedom of the Press has obtained the FBI's guidelines [PDF] for undercover efforts that involve impersonating journalists. They indicate there are several levels of approval needed, but don't contain details about what's considered by those making these determinations.

The relevant FBI field office must submit an application to the Undercover Review Committee at FBI headquarters and it must be approved by the FBI Deputy Director after consultation with the Deputy Attorney General. The guidelines do not provide any criteria the FBI Deputy Director and/or the Deputy Attorney General must consider when approving these undercover activities.

All well and good, but one wonders how high the potential impact on civil liberties rates on the scale of 0-Impersonation, or whether it's more important the agency doesn't undermine future investigations by setting fire to the reputation of the impersonated entities by opening the Adventurous Reporter dress-up kit once too often.

I don't believe the FBI doesn't care at all about the collateral damage. I'm just reasonably certain it's far more concerned about how often -- and how successfully -- it will be sued. Adding more layers of oversight won't necessarily steer agents away from questionable tactics, but it will make it more difficult for plaintiffs to show the FBI carelessly caused damage to their livelihoods by pretending to be the press.

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posted at: 12:49am on 17-Oct-2018
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Vizio Customers Get A Pittance In Settlement Over Snooping Televisions

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As we frequently note, most of the "smart" products you buy are anything but intelligent when it comes to your privacy and security. Whether it's your refrigerator leaking your gmail credentials or your new webcam being hacked in mere minutes for use in massive new DDoS attacks, the so-called "smart" home is actually often dumb as nails and potentially hazardous. So-called smart-televisions have been particularly problematic, whether that has involved companies failing to encrypt sensitive data, or removing features if you refuse to have your daily viewing habits measured and monetized.Last year Vizio joined this not-so-distinguished club when it was discovered that the company's TVs had been spying on users for the last several years, starting back in 2014. Vizio's $2.2 million settlement with the FTC indicates that the company at no time thought it might be a good idea to inform customers this was happening. The snooping was part of a supposed "Smart Interactivity" feature deployed in 2014 that claimed to provide users with programming recommendations, but never actually did so. Its sole purpose was to hoover up your data and help Vizio sell it, without your express consent.Vizio was also hit with a class action lawsuit over its actions, and the finishing touches on a settlement are just getting hashed out now. Lawyers representing consumers in the case state Vizio secretly tracked and sold the usage habits of around sixteen million Vizio owners for around three years. They're demanding a settlement of $17 million and a promise from Vizio that this won't ever happen again:

"Under the terms of the proposed settlement, Vizio will establish a $17 million settlement fund that will deliver money directly to consumers who bought Vizio Smart TVs that were subsequently connected to the Internet between February 1, 2014 and February 6, 2017. Vizio has also stopped tracking what is displayed on its Smart TVs unless a consumer consents to this tracking after receiving a prominent notification. And Vizio will delete the remaining contested viewing data in its possession."
What this actually means for consumers is a bit less impressive. Ars Technica took a closer look at the court filings in the case and found that consumers are likely to get all of somewhere between $13 and $31 for the inconvenience of being spied on without their permission. Lawyers will, unsurprisingly, get significantly more:
"When it's all said and done, new court filings submitted on Thursday say each of those 16 million people will get a payout of somewhere between $13 and $31. By contrast, their lawyers will collectively earn a maximum payout of $5.6 million in fees."
On the plus side, insiders tell Ars Technica that the $17 million being doled out is more than Vizio made from selling this data, which usually isn't the case in other similar failures of trust (especially by cellular carriers, who'll often be fined millions for privacy violations that potentially netted them billions). And while Vizio's promises are good and all, many argue we need stronger public deterrents for companies that fail to respect user privacy, starting first and foremost with efforts to include privacy and security oversights in product reviews.

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posted at: 12:49am on 16-Oct-2018
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African Nations Rife With Illegitimate Collection Societies: Nigeria Files Criminal Complaint Against COSON

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You may recall that we have discussed the complete chaos that is copyright collection societies in Kenya over the past few years. At issue in Kenya is that the country has multiple collection societies, which are overseen by a government sanctioned body that can request to look at their books to make sure artists are being paid appropriately, and officially licenses the collection societies themselves. Some of those collection groups have apparently not felt the need to respond to requests for oversight, leading the government to pull or not renew their licenses. Instead of being the end of the story, a number of those collection societies continue to threaten people and collect royalties anyway, acting essentially as an illegal extortion outfit.Kenya is not the only African nation going through this, it seems. Across the continent on the opposite coast, the Nigerian Copyright Commission has been going through similar issues, specifically with a collection group called COSON.

The Nigerian Copyright Commission has filed a criminal charge against the Copyright Society of Nigeria, its Chairman, Chief Tony Okoroji, and principal officers for carrying out the duties of a collecting society without the approval of the Nigerian Copyright Commission.The NCC, in a statement signed by its Director-General, Afam Ezekude, and made available to our correspondent on Tuesday, said, “In Charge No FHC/L/338C/18, filed on October 8, 2018 at the Lagos Division of the Federal High Court, the accused persons were alleged to have performed the duties of a collecting Society by demanding and collecting royalties from Noah’s Ark of 9 Sowemimo Street, GRA, Ikeja, Lagos.”The commission also accused COSON of carrying on the business of negotiating and granting licences on behalf of copyright owners without its approval, thereby committing an offence contrary to and punishable under sections 39 (4), (5) and (6) of the Copyright Act Cap C 28 Laws of the Federation of Nigerian 2004.
This is now becoming a trend, with collection societies in several African nations simply and rather brazenly carrying on the business of shaking down businesses for music licensing fees, even beyond the point of their being legally allowed to do so. Frankly, given the copyright collection industry, this is not a huge leap to take. These societies already have many of the hallmarks of extortion rings, with their undercover "patrons" at businesses and their threat letters that might as well begin with, "Nice business you have there. Be a shame if anything happened to it."But what this really shows, more than anything else, is how many of these copyright collection groups are devoid of any interest in the law, in the artists they represent, or in acting with even a modicum of ethical standards. Instead, these are money-making operations, and that money-making doesn't stop just because the law says they have to.

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This Week In Techdirt History: October 7th - 13th

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Five Years AgoThis week in 2013, the US government shut down. Former CIA director Morell used that as an excuse to skip an NSA surveillance review board meeting, while James Clapper warned that failing to pay the agency's mercenary contractors might lead to security problems. The TSA similarly used the shutdown as an excuse for letting a nine-year-old sneak on to a flight, and a lawsuit by tech companies over NSA surveillance was put on hold. Outside the government, some folks were having fun with the shutdown, such as the Russian pirates offering to host the NASA website, someone submitting a bug report to GitHub describing how "government occasionally shuts down", and Good Old Games started offering some free thematically-appropriate games to furloughed government workers.But hey, at least Congress's members-only gym was deemed essential and kept open.Ten Years AgoThis week in 2008, it was still the early days of the global financial crisis. Many self-serving and/or bizarre explanations popped up, blaming things like short selling and Wikipedia edit wars or, most strangely, flickering computer screens (according to author Tom Wolfe). Cooler heads took a closer look at the real causes: leverage and derivatives and a toxic, complex financial system.Meanwhile, bogus stats and arguments were coming strong from the US Chamber of Commerce and members of congress in a push to get the president to sign the bill creating a copyright czar. At the same time, a judge ordered an injunction against Real's DVD copying software and for some inexplicable reason kept it secret, then extended it.Also, long before the Snowden leaks and following Congress's capitulation on warrantless wiretapping, early leaks were already documenting NSA surveillance abuse.Fifteen Years AgoThis week in 2003, as we took a look at the role of music retailers in the industry's failure to adapt, the record companies were trying to ape the success of DVDs by adding "extras" to CDs. That's extra content — not extras like BMG's new DRM system, which a researcher discovered could be defeated by holding down the shift key while inserting the disk. SunnComm, the company that made the laughably useless DRM, naturally announced plans to sue the researcher for besmirching their good name — but reversed course in less than 24 hours in the face of public outcry. The software industry, on the other hand, was just beginning to dip its toe into the waters of a DRM approach that would gain much more traction (even while still being quite easily circumvented): product activation codes.

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posted at: 12:49am on 14-Oct-2018
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Report Shows LA Sheriff's Deputies Engaging In Biased Policing, Performing Tons Of Questionable Traffic Stops

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The LA Times has put together a blockbuster piece showing local law enforcement engaging in some arguably biased policing. Analyzing over 9,000 traffic stops recorded by the LA Sheriff's Department over the last five years, the LA Times noticed some alarming statistics. Latino drivers comprised 69% of the stops and had their vehicles searched two-thirds of the time. Other drivers -- the remaining 31% -- were subjected to searches less than half the time.

Also alarming: most searches were consented to by drivers, suggesting drivers are either unaware of their rights or simply felt pressured into allowing deputies to do what they wanted. It also suggests most stops are fishing expeditions, rather than truly traffic-related, which may put more recent stops on the wrong side of legality, thanks to the Supreme Court's Rodriguez decision. This decision said traffic stops are over when the objective of the stop has been fulfilled -- i.e., the delivery of a citation or warning. Killing time to wait for drug dogs or backup units is no longer permissible if reasonable suspicion has failed to materialize.

The LA County Sheriff's Department likes to brag about the hundreds of kilos of drugs it has seized over the years. But it doesn't have much to say about its apparent targeting of Latino drivers or the fact that these drivers were no more likely to be carrying contraband than races/ethnicities stopped/searched far less frequently.

The whole thing is worth reading, but a couple of details pop out. First, the author of the paper was riding shotgun during what appears to be an illegal traffic stop. Deputies stopped a Mexican man for driving too slow and searched his entire vehicle, including removing part of the dashboard to look for hidden drugs. Nothing appears to have risen to the level of probable cause and the paper's documentation of the stop doesn't include the driver giving his consent to be searched.

The deputies may have had reasonable suspicion to extend the stop, but that's only if you believe a person reacting normally to the presence of several law enforcement officers is inherently suspicious.

The man seemed fidgety and nervous to [Deputy John] Leitelt. With traffic zooming by, the deputy instructed him to get out and walked him to the back of the Volkswagen. Leitelt asked in Spanish whether he was carrying methamphetamine. Heroin? Cocaine? Marijuana? A large amount of cash?

The man repeatedly said no, and his voice and expression remained unchanged — usually a sign, the deputy said later, that someone is being truthful. But Leitelt also thought the man was avoiding eye contact, which he interpreted as an indication of possible deception.

Truthful, but lying. From there, Leitelt discovered a suitcase and searched it, finding normal stuff: clothes and some greeting cards. If you think this may have dissipated the cloud of suspicion, you obviously don't work for the LASD.

Thinking the suitcase could be “a prop,” Leitelt kept going. Using an assortment of prying tools, he and the other deputy popped off a section of the dashboard in search of a hidden compartment traffickers sometimes build.

Luggage is a "prop." Remember that when a government employee says your lack of luggage is suspicious. Stuff you bring with you is suspicious. Stuff you didn't bring with you is suspicious. Your mere existence on a road drug traffickers use is suspicious.

No drugs were found and the driver was free to go. Everyone's time was wasted, along with some tax dollars, because a deputy thought a bunch of normal stuff was "suspicious." The finely-tuned collective instincts of LASD's deputies has resulted in a ton of stops but contraband is found less than 20% of time, according to the LA Times' analysis.

But let's go back to what's claimed to be reasonably suspicious enough to extend a traffic stop past its original intent. Courts are starting to call out cops for claiming anything a driver does during a stop is suspicious, even when one alleged indicator of suspicion is the polar opposite of another indicator stated in another case. Mainly surfacing in drug cases where deputies have managed to find contraband, judges are seemingly a bit less willing to give law enforcement a pass on bad faith assertions.

A suppression motion resulted in some conflicting testimony from Deputy Michael Vann, who received a solid hammering from the suspect's defense attorney.

When the driver, Mario Manjarrez, told Vann he had been visiting family in Los Angeles and pointed toward the city, the deputy saw the gesture as “an anchor point movement,” which he said criminals use to distract officers. In this case, Vann concluded, Manjarrez had been struggling to recall a made-up story about visiting family and pointed toward the city in an attempt to seem more confident.

When the motorist took a step away from the car, the deputy wrote, it was an unconscious attempt at “distancing himself” from what was inside. And the fact that he switched from saying ‘no’ to silently shaking his head when asked if he had methamphetamine or cocaine was reason for Vann to suspect he was carrying the two drugs.

Manjarrez’s lawyer questioned how handing a license over too quickly could be a telltale sign of deception. She noted that Vann claimed in other stops that it was suspicious when drivers were slow and clumsy in handing over their licenses.

And she pointed out that although Vann maintained that Manjarrez’s finger pointing was a sign of a forgotten cover story, the deputy also had said that in other stops he based his suspicions on people who recited their stories too smoothly.

Deputy Vann tried to argue every stop was unique, which was why things that were suspicious in other cases weren't suspicious in this one… or vice versa. The court was not impressed.

U.S. District Judge Philip S. Gutierrez concluded that Vann’s justifications could make any word or movement grounds for suspicion.

“I have doubts about the magical psychological powers of Deputy Vann,” Gutierrez said at a hearing in November. “To me, it’s psychological babble.”

Here's the full version from the linked hearing transcript [PDF], which is even harsher in its assessment of Deputy Vann and his magical law enforcement powers.

The issue becomes -- so he says it -- and I believe the parties mention this. At least six times he says "based on my training and experience." And the other incidents -- for example, if he says, based on my training and experience, the defendant looking up means nervousness or whatever. I'm just giving examples. Then in some other prior instances, based on my training and experience, looking down means nervousness. And then in other cases he says based on my experience looking straight at me is nervousness.

That bears on whether or not the Court should give credibility to his, quote, "training and experience" that it's -- in this particular case. The same applies to "He gave me the license quickly. That means he wants to shorten the stop."

In the other case, "He fumbled and gave it to me, and that gives me some other fact that gives me reasonable suspicion to suspect criminal activity." Or he points in a certain direction in this case which means something and pointing in another case means something else.

And I don't think it's any surprise because I've never seen any testimony like Deputy Vann's before. I mean, to me, as I said before, it's psychological babble. And from my perspective, even without these other instances, I think the government is going to be hard-pressed for me to give credibility to Deputy Vann not only for the psychological babble, because you can turn any stop -- Deputy Vann is adept, I guess. He could turn any stop into a reasonable suspicion that criminal activity is afoot.

But the other clincher for me was his attitude. He has a bad attitude. He had a bad attitude in this court. He was disrespectful. He was short. The public defender was just asking him questions. He didn't need to be disrespectful. The public defender was just doing his job. But he decided he was going to take charge of the cross-examination which he did but it reflected on his credibility as being straightforward.

Perhaps hoping to avoid an adverse precedential ruling covering pretextual stops, prosecutors dismissed charges before a ruling on the suppression motion was handed down.

What's detailed in this excellent report is troubling. The LASD says it doesn't engage in biased enforcement but the stats say otherwise. Deputies may honestly believe they're not singling out Latinos, but somehow that's still who's getting pulled over the most. On top of that, they're far more likely to have their vehicles searched. And from what was observed by the LA Times, deputies don't seem all that concerned about the Constitutionality of the searches they perform. Further, their testimony in court indicates they believe everything is "suspicious." And when everything is suspicious, it's pretty easy to extend stops past their purpose.

Targeting drivers who might not be familiar with their rights or speak English well just greases the wheels for invasive searches. And even with all of this going for them, deputies only find contraband 20% of the time. This doesn't mean 80% of vehicle searches performed by deputies are unconstitutional, but it does mean a not-insignificant percentage of them very likely are.

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Warner Media Opposes Trademark Filed By Actual 'Wicked Witch' Over Its Wizard Of Oz Trademarks

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Thanks to the convoluted nonsense that is copyright law, readers here will likely be familiar with the insanity that is intellectual property rights revolving around The Wizard of Oz. Thanks to some of the works being in the public domain, some of them being under copyright, and the courts mostly treating all of this on a case by case basis, it's fairly clear at this point that basically nobody knows who is allowed to do what with anything associated with The Wizard of Oz. Usually, issues relating to the work revolve around this axis of confusion.But that's less the case when it comes to trademark issues. For all of its flaws, trademark law is blessedly limited to public confusion and true competition within a specific market. That's what makes it bewildering that Warner would bother to oppose the trademark application filed by a pagan priestess for her "Wicked Witch Mojo" brand.

Turner Entertainment Company has filed an opposition with the U.S. Patent and Trademark Office to stop witch and Pagan elder Dorothy Morrison from trademarking her brand name ‘Wicked Witch Mojo.” Turner Entertainment, a subsidiary of AT&T’s WarnerMedia, serves as the copyright holder for a large library of productions made by its sister subsidiary Warner Bros. Entertainment Inc. (aka, Warner Brothers), that includes The Wizard of Oz (1939).Morrison said, “I was stunned. I couldn’t believe that Turner Entertainment could have A] been allowed to trademark the phrase ‘Wicked Witch,’ and B] that they had accused me of deliberately weakening their trademark.” She said that, after the shock wore off, she was just angry. “It occurred to me that if Turner saw fit to go after me, there was nothing to stop them from going after anyone in the magical community who’d ever used that phrase. And I couldn’t, in good conscience, allow that to happen,” she explained.
And so she contacted a lawyer and there is now a case pending. Warner's lawyer apparently discussed the case with her lawyer, refused to budge on the opposition, and suggested that she could be sued for copyright as well for using some imagery in her branding, specifically red-heeled shoes on her business cards. That, and of course, the characters that Warner claims are being referenced in her name and branding.And that's where we get right back into the confusing bullshit.
Morrison’s attorney Richard Bullock argues otherwise, saying that these images and words recall the books, not the movie. Bullock writes, “The marks are derived from the writings of L. Frank Baum’s novel The Wonderful Wizard of Oz and its various sequels.”He also argues that Turner’s trademarks are only limited to certain product areas, and that Turner is not likely to be moving into the metaphysical arena; nor will Morrison be producing products for the mainstream toy or clothing markets, and other industries specified within Turner’s trademarks. Bullock wrote that there would be “no likelihood of confusion.”
The latter part referencing the trademark oppositions are almost certainly valid. Nothing in Morrison's actual trade dress brings The Wizard of Oz to mind at all, regardless of its various forms. Certain references to that work, such as her online marketplace being dubbed "The Flying Monkey Express" can be said to reference the books, not the films. And that really only matters on the copyright question, for which a suit hasn't been filed. On the trademark piece, it really should be enough that Warner isn't in the religion business. With no crossover of marketplaces, there is no serious concern for public confusion.So, in the end, we have a large company trying to push around a real life wicked witch over a specious trademark claim. Warner executives should be thankful, I suppose, that Morrison doesn't have an actual army of flying monkeys to set upon them.

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Netflix Reminds Everyone That The Internet Isn't A Broadcast Medium With New Choose Your Own Adventure Shows

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For over a decade, we have been making the point that the internet is a communications platform, not a broadcast medium. This seemingly obvious statement of fact has long been the subject of legacy content provider objections, which is part of what has led to much of the ongoing conflicts centering around intellectual property and digital business models. With big content players feeling control over their content slipping away in the internet, they have attempted to wrestle back that control by pretending the internet is something it isn't. For that reason, it's always a useful thing to point out to examples that remind people that the internet simply isn't a movie theater or television.The latest example of that is provided by, of course, Netflix. Netflix is reportedly working on some new shows that are something of a "choose your adventure" type experience, which is something that traditional television simply isn't capable of.

Two of the interactive projects currently in negotiations are based on existing video game properties, the report suggests. That seems to include the previously announced Minecraft: Story Mode, which was largely completed with the help of Telltale before that company's massive layoffs last month. Netflix has frequently said it is not interested in getting directly into the video game business, however.It's currently unclear just how much narrative branching will be possible in these Netflix specials, or how divergent the storylines can become based on viewer interaction. Filming extra content for such branching storylines can add significantly to the production cost of traditional linear TV narratives to create content that some viewers may never end up seeing.
"Interactive" is the key word here, one which precisely shows the separation between broadcast and communications mediums. It's a small thing, it might seem, and doesn't really touch on the typical intellectual property concerns we discuss at Techdirt, but it also beautifully highlights how the internet and broadcast mediums are simply different. And, if you accept that difference, the obvious conclusion is that they should not be treated and/or regulated as though they were the same. That important distinction has an impact across the world of how the internet functions and is treated by government and the law.In fact, this type of interactive narrative storytelling has more in common with the video game market, or even the tabletop gaming market, than television and film.
Live TV programs and game shows have long integrated interactive elements via telephone calls, webpages, and custom apps. But fully interactive narrative stories have been more closely associated with video games, from text-based stories like Zork to Hollywood-style blockbusters like Detroit: Become Human and everything in between. This narrative flexibility has also been included in video game experiments focused on filmed live-action stories, ranging from the campy Night Trap to this year's innovative WarGames reboot.
So tuck this one away for the next time you hear someone harping on about how entertainment over the internet should be treated no differently than entertainment offered via broadcast. They're not the same. And, ultimately, that's a good thing, as that dissimilarity is what allows for cool new experiments such as what Netflix is trying to create here.

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New Bill Tries To Ban Obnoxious Hidden Fees On Broadband, TV

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For years we've talked about how the broadband and cable industry has perfected the use of utterly bogus fees to jack up subscriber bills, a dash of financial creativity it adopted from the banking and airline industries. Countless cable and broadband companies tack on a myriad of completely bogus fees below the line, letting them advertise one rate -- then sock you with a higher rate once your bill actually arrives. These companies will then brag repeatedly about how they haven't raised rates yet this year, when that's almost never actually the case.Despite this gamesmanship occurring for the better part of two decades, nobody ever seems particularly interested in doing much about it. The government tends to see this as little more than creative financing, and when efforts to rein in this bad behavior (which is really false advertising) do pop up, they tend to go nowhere, given this industry's immense lobbying power.The latest case in point: US Rep. Anna Eshoo last week quietly introduced a bill that would require broadband and cable TV providers to include all charges in their advertised price. Eshoo explains the proposal as such in her announcement:

"Customers deserve to know exactly what they're paying for when it comes to monthly cable and Internet service bills. Today, they're sold a service for one price, only to be blindsided by higher bills at the end of the month from tacked on 'service' or 'administrative' fees, Rep. Eshoo said. These 'below-the-line' fees add up to hundreds of millions of dollars each year for cable and Internet service providers at the expense of consumers who have little to no option than to pay up. The TRUE Fees Act is commonsense legislation that brings transparency to consumers and empowers them when it comes to phone, cable and Internet fees."
Of course this bill is never going to pass this current Congressional body, which tends to go out of its way to protect these companies from anything even vaguely resembling accountability. The industry is likely to pull out all the stops, given the billions that are made annually from such bogus fees, and because the bill also prohibits forced arbitration clauses when cable TV or broadband providers make billing mistakes.Again, this problem is rampant. CenturyLink has been charging its broadband customers an "internet cost recovery fee," which the company's website insists "helps defray costs associated with building and maintaining CenturyLink's High-Speed Internet broadband network" (that's what your full bill is supposed to be for). Comcast and other cable companies have similarly begun charging users a "broadcast TV fee," which simply takes a portion of the costs of programming, and hides it below the line. The names differ but the goal's the same: falsely advertise one rate, then charge consumers a higher price.And again, efforts to do something about it always get killed thanks to industry lobbying and corruption. The FCC tried to at least mandate transparency as part of its now-dead 2015 net neutrality rules, which current FCC boss Ajit Pai dismantled for, you know, freedom or whatever. Of course you wouldn't need legislation like this if there were more competition in the telecom sector letting consumers vote with their wallets, but given Pai and other industry BFFs don't want to fix that specific problem either, being quietly, covertly ripped off will remain the law of the land for the foreseeable future.

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Creative Commons Continues To Try To Help Courts Understand What Its NonCommercial License Means

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Over the years we've expressed some concerns about the NonCommercial license option from Creative Commons. Even as we're incredibly supportive of CC, the NonCommercial license often seemed to raise more questions than answers -- to the point that some have argued that it actually harmed CC's brand and resulted in significant confusion for how CC licenses work. There have even been suggestions that CC should drop the NC license option altogether.To its immense credit, people at Creative Commons have appeared to take these concerns quite seriously over the past few years, doing quite a bit of work to try to clarify what NonCommercial means for the purpose of the license. Our specific concern is that NonCommercial could mean all different things to different people. If you're using a NonCommercial CC-licensed image on a personal blog and you have ads on that blog (even if you don't make much money from it) is that non commercial? If you use it in a tweet and your Twitter bio promotes your business is that non commercial?Two years ago we wrote about Creative Commons stepping in to file an amicus brief in a case that raised some specific issues concerning a NonCommercial license. An educational non-profit, Great Minds, sued FedEx over FedEx Office shops photocopying some Great Minds works for educational entities, even though the works were licensed under CC's BY-NC-SA 4.0 license. Great Minds argued that because FedEx made money from copying, it's "commercial" and thus in violation of the license. Creative Commons stepped into that lawsuit and explicitly stated that Great Minds interpretation was wrong.In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds' interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were "actively soliciting" schools to copy Great Minds' works). The court didn't buy it.That case has now been appealed to the 9th Circuit (who, as we've noted all too frequently, mucks up copyright cases). And Creative Commons is back again asking the court if it can file an amicus brief again. This seems like the perfect situation for an amicus brief, given that Creative Commons certainly should understand its licenses the best. The proposed brief is well worth a read.

Creative Commons appreciates the valuable contributions to thedevelopment of open educational resources made by Great Minds, along with itsuse of a standard CC public license to enable broad reuse of the materials itproduces. However, its interpretation of the Creative Commons license at issue inthis lawsuit is incorrect. As the U.S. Court of Appeals for the Second Circuitcorrectly determined in Great Minds' prior suit against another copy shop, FedExOffice, the license authorizes a bona fide non-commercial user to discharge herlicensed rights by directing a third party like Office Depot to make copies at herinstruction. Creative Commons welcomes and respectfully seeks a similar holdingfrom this Court:
Under the Creative Commons NonCommercial licenseat issue, a bona fide non-commercial user may engagecontractors to exercise the non-commercial user's ownlicensed rights on behalf and at the direction of the noncommercialuser, irrespective of whether the contractor isitself non-commercial actor.
Going into details, CC explains how Great Minds is completely misinterpreting its NC license term:
The CC BY-NC-SA 4.0 license fully authorizes the conduct that GreatMinds contends on appeal is unlawful. The only licensee here is the schooldistrict. Under the terms of the license and prevailing principles of law, a schooldistrict may permissibly use Office Depot as a means by which the school districtexercises its own licensed rights. The license does not restrict the school district tousing only its own employees to exercise those rights; it allows the school districtto engage anyoneemployees and non-employee contractors aliketo do so. Toestablish a rule that denies a licensee the ability to use non-employee actors toexercise the rights it is lawfully entitled to exercise would contravene the plainlanguage of the license and established precedent.To be sure, Office Depot could not on its own initiative make copies ofGreat Minds' curricular materials and sell them for a profit. In that scenario,Office Depot would not be acting at the direction of a bona fide licensee, wouldnot be shielded by any bona fide licensee's license, and thus would itself need torely on the terms and conditions of the CC BY-NC-SA 4.0including limiting itsconduct to non-commercial purposes when reproducing the licensed work. Butthat is not what is alleged here. Instead, on the facts as pleaded, the school districthas, under its license from Great Minds, engaged Office Depot to make copies andpaid Office Depot for the service, just as it could have paid an employee to makethe same copies at an Office Depot store. In that scenario, Office Depot is not alicensee in its own right, and its own, independent purpose is analyticallyirrelevant.
Hopefully the 9th Circuit follows the lead of the 2nd and agrees that Great Minds is misreading the NC part of the license. This would go a long way towards further establishing that NC licenses aren't so limiting.

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Titleist Goes After Another Parody Golf Gear Company After Settling With The First

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A little over a year ago, we discussed how Acushnet, the company that owns brands like Titleist and FootJoy in the golf gear industries, had sued I Made Bogey, a company that created parody golf gear. Crude parodies, at that, with the headlining product being a hat styled after Titleist's famous golf hat that read "Titties" instead of "Titleist." While Acushnet had brought claims of trademark infringement and dilution, we noted at the time both that these claims were fairly specious -- the parody only works in all of this if you are clear on the difference between golf's waspy culture and I Made Bogey's sophmoric take on it -- and that the case would almost certainly be settled out of court. It's not like I Made Bogey had the same gobs of money to throw at the case as Acushnet, after all.Well, it seems like this might be turning into a game of litigious whac-a-mole, as Acushnet has now sued another company pulling the exact same parody and joke, and a whole bunch more.

On Friday, Acushnet set its sights on an Australian company called Golf Gods that is apparently making the same joke. The company’s website boasts a diverse inventory of accessories and apparel — including polo shirts patterned with flamingos or decorated with a cartoon figure breaking his club over his knee — but Acushnet wants punitive damages and an injunction over the line similar to its Titleist products.
The complaint details all of the supposed cases of infringement in question, but one of them is the exact same "Titties" hat that I Made Bogey had been selling. Alongside that one, Acushnet claims that various other parody lines of clothing and apparel also represent trademark infringement and dilution.
In addition to its cursive logo, Acushnet says Golf Gods has been infringing its protected marks “#1 Ball in Golf,” “Pro V1” and “Footjoy.”The latter company’s products use the marks “#1 Sluttiest Ball in Golf,” “Hoe V1” and “Footjob.”
So let's just make a couple of things clear. First, these jokes mostly suck. This kind of lazy parody built on offense is mostly stupid, save for its unique value in poking fun at golf culture. Even there, they barely do the job. Second, tastefulness is not in question when it comes to trademark concerns. For infringement, there needs to be a risk of customer confusion between the companies putting forth these products. That, as was the case with I Made Bogey, is of no concern here. The only value in Golf Gods products rests solely on everyone being in on the joke, no matter how the products themselves are stylized.As for dilution, Acushnet would have to show that these parody products somehow harm the Titleist reputation or steal some of its fame. Again, such claims are laughable. These jokes again only work because Titleist is so famous, well known, and respected. That's the entire point.As was the case the last go around, a settlement is somewhat likely. The one wrinkle is that Golf Gods is an Australian company. Given that the parody company isn't talking about the suit at all, however, indicates that it's taking this seriously. So, again, probably a settlement coming for what is clear parody that ought to be protected.

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Nobel Econ Award Goes To Two Economists Who Have Greatly Shaped My Thinking On Economics Of Innovation

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Let's get this out of the way upfront: if you're one of those people who pedantically feels the need to sneeringly point out that the economics Nobel is "not a real Nobel Prize," shut up: no one cares.Now, let's get on to the point: for basically the last decade, I've been specifically waiting for Paul Romer to finally win this prize and each year I've been disappointed when someone else did. Finally, this year he won it and did so with William Nordhous, which is even better, as I'll explain shortly. Both Romer and Nordhous have greatly influenced my thinking on many of the things I write about here at Techdirt, specifically when it comes to the economics of innovation, and, more specifically, the economics of information and so-called "non-rivalrous" goods (I prefer to call them "infinite goods"). I've reference Romer multiple times in the past, specifically in discussing how innovation creates economic growth in powerful ways. One of my favorite Romer quotes is as follows:

Economic growth occurs whenever people take resources and rearrange them in ways that are more valuable. A useful metaphor for production in an economy comes from the kitchen. To create valuable final products, we mix inexpensive ingredients together according to a recipe. The cooking one can do is limited by the supply of ingredients, and most cooking in the economy produces undesirable side effects. If economic growth could be achieved only by doing more and more of the same kind of cooking, we would eventually run out of raw materials and suffer from unacceptable levels of pollution and nuisance. Human history teaches us, however, that economic growth springs from better recipes, not just from more cooking. New recipes generally produce fewer unpleasant side effects and generate more economic value per unit of raw material.Every generation has perceived the limits to growth that finite resources and undesirable side effects would pose if no new recipes or ideas were discovered. And every generation has underestimated the potential for finding new recipes and ideas. We consistently fail to grasp how many ideas remain to be discovered. The difficulty is the same one we have with compounding. Possibilities do not add up. They multiply.
I have also regularly recommended an absolutely brilliant book by David Warsh, called Knowledge and the Wealth of Nations: A Story of Economic Discovery and I'll do so again here. I've long recommended it to people who are interested in the economics of innovation, because the first half of it is a very entertaining and wonderful history of the economics of information, and the second half is the story of Romer coming up with his own theory of endogenous growth. The book, at times, comes off a bit "hero worshipy" of Romer, but it's totally worth it, as it puts into place an economic model that helps explain so much of why innovation remains so important. My one disappointment with it is that for nearly the entire book I was nodding in agreement with Romer, except for some stuff on intellectual property, where I felt that Romer gets his own model backwards.Either way it's great -- and doubly so that Nordhaus is similarly rewarded. Warsh's book about Romer also talks about Nordhaus, including a section on Nordhaus' incredible paper on the cost of light throughout human history, which is a stunningly wonderful work of economics that shows just how innovation leads to economic growth. In fact, thanks to Warsh's book about Romer, and its section on Nordhaus -- as well as a few other mentions -- that made me go out and pick up a copy of The Economics of New Goods, which is a collection by the National Bureau of Economic Research (NBER) of some of the absolute best papers on economics and innovation. The two books have sat for years next to each other on my bookshelf, and I have revisited Nordhaus' paper (which is the first in that collection) numerous times in trying to better think through ways to explain the economics of innovation.So I'm delighted to see Nordhaus and Romer both honored at the same time. And it is doubly timely, seeing as it's happening just at the moment when we're facing so much backlash against technology and innovation, and many people trying to argue that the harms from technology somehow outweigh the gains. Reading and understanding the work of both Romer and Nordhaus hopefully will help people get past that belief, and back to recognizing how much overall good comes from innovation. Congrats to both.

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NHL Team Institutes 'No Video Game' Policy For Players Due To Fortnite 'Addiction'

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Video game addiction as a concept has been tossed around for the past decade or so, with mixed feelings coming from all sides. Disagreement abounds as to whether or not gaming addiction is a real thing, both among medical professionals as well as the public. There's even disagreement among Techdirt writers (disclosure: I don't think it's a thing).But as the concept continues to infect the common public lexicon, it's something we're going to hear more and more about. It's something of a checkpoint, therefore, that the issue has risen to the level of an NHL team instituting a ban on gaming for players while on the road visiting other cities.

The Canucks “veterans,” such as they are, have led the players to self-institute a ban on all video games on the road. “No more Fortnite,” Bo Horvat told TSN 1040.“In my opinion, there’s better ways to spend time on the road, whether it’s hanging with the guys in the room or going to a movie with the guys. There’s a lot of cool cities we visit and to be cooped up in your room all night, playing Fortnite, is a waste of your time.”
The tie-in for gaming addition here is that last year the Canucks claimed that a young un-named player was inactive and seeking counseling for video game addiction. Whether this player-led ban on gaming is a direct result of that incident, or simply a scapegoat for the Canucks being fairly bad at professional hockey as of late, is unknown. What is known is that this ban pretty squarely centers around Fortnite, which is amazing advertising for just how fun and enjoyable that game is.More interesting to me is how the team appears to be taking the blunt-tool approach that mirrors what many parents do in fear of video game addiction. These kinds of blanket bans, taking into consideration nothing about how individual players, or children, can handle gaming appropriately, is almost certainly a mistake. Even if video game addiction is indeed a thing, it must be true that it's a thing that will afflict a minority of the population. That makes these blanket bans massive overkill.But don't be surprised to hear this story raised in NHL broadcasts if the Canucks manage to be less than awful this year.

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This Week In Techdirt History: September 30th - October 6th

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Five Years AgoThis week in 2013, as we discussed how the NSA had essentially built its own "shadow" social network, we learned and then confirmed that the agency was collecting GPS data from mobile phones. A We The People petition calling for a pardon for Ed Snowden was being quietly ignored, while Michael Hayden was joking about putting Snowden on a 'kill list'. We also learned that the NSA was storing all metadata for at least a year, and performing man-in-the-middle attacks with the help of telcos. Plus, it was working hard to compromise Tor, despite James Clapper's claims that they were just trying to "understand" it.Ten Years AgoThis week in 2008, the House followed the Senate in creating a copyright czar position, even as it let orphan works legislation die and the Senate moved on to more international piracy shaming. Cox was quietly adopting a copyright three strikes policy and lying about it being required by the DMCA, a comprehensive review of the RIAA's lawsuit strategy showed just how much of a failure it was, and The Pirate Bay was launching its own copyright lawsuit to expose the absurdity of the system.Fifteen Years AgoFive years earlier in 2003, in the early days of the RIAA's lawsuits, another 63 people gave in to its shakedown letters this week, while the agency concluded a Senate hearing by promising to at least leave a little time in between the letters and the lawsuits in future — but at least one senator wanted much more substantial change. There was talk about compulsory licensing for music and a lot of questions about how it could be abused depending on how you define "music" — not to mention talk about how the cost of making music was going way, way down. It was also around this time that the practice of bundling TV, internet and phone service was picking up steam.

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posted at: 12:47am on 07-Oct-2018
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Philly Cops Face Criminal Charges For Performing An Illegal Pedestrian Stop

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Weird stuff is happening in Philadelphia. Things have changed drastically since Larry Krasner became District Attorney. Anyone who enters this office and immediately earns the undying hatred of the local police union is probably someone actually serious about accountability.

Right after taking office, DA Krasner secured 33 resignations from prosecutors and staff who weren't willing to get on board with his reform efforts. He went after the bail system, pointing out it did little else but ensure the poorest Philadelphians spent the most time in jail while still presumably innocent. Then he pissed off the police union by daring to tell incoming police cadets force deployment -- especially deadly force -- is a power to be used only when necessary and handled with the utmost of respect.

Accountability INTENSIFIES. A bogus pedestrian stop performed by two cops has led to [rubs eyes in disbelief] the arrest of the two cops who performed the stop. (h/t Max Marin)

The statement [PDF] issued by the DA's office says two Philly PD officers, Matthew Walsh and Marvin Jones, stopped a citizen for "apparently using narcotics." This citizen filed a complaint, resulting in an Internal Affairs investigation.

The narrative delivered by the two cops on their report was undone completely by video obtained by Internal Affairs.

Based on video surveillance recovered during the course of the IAD investigation, Police Officer Walsh and Police Officer Jones could not have seen the citizen "apparently using narcotics." In addition, the citizen was fully compliant at the time of the stop. Moreover, the search of the citizen (which resulted in the removal of a prescription pharmaceutical from the citizen's pants pocket) was not noted on the "Vehicle/Pedestrian Investigation Report" prepared and submitted by the officers.

Normally this sort of behavior would result in a halfhearted investigation and officers being cleared of any wrongdoing. In extreme cases, someone might be suspended with pay. Lies and illegal stops rarely result in anything more than stern words and civil rights lawsuits. They almost never result in the arrest of the officers involved.

But not here. Officers Walsh and Jones have both been arrested and charged with criminal conspiracy, false imprisonment, tampering with records, obstructing administration of law, and official oppression. Rather than force the citizen to fight this abuse in court, the DA's office has taken steps that will result in far more deterrence of future unconstitutional policing by making it clear abusive actions will be punished severely.

Unbelievably, there's more. Another near-impossibility was achieved only a few weeks earlier.

Today, Philadelphia District Attorney Larry Krasner announced that the Philadelphia District Attorney’s Office is charging former 15th District Philadelphia Police Officer Ryan Pownall with Criminal Homicide (18 Pa.C.S.A. § 2501), Possession of an Instrument of Crime (18 Pa.C.S.A. § 907), and Recklessly Endangering Another Person (18 Pa.C.S.A § 2705). Pownall voluntarily turned himself in today.

The Investigating Grand Jury (IGJ), whose members completed a review of the evidence and events leading up to the shooting death of David Jones, recommended that the Philadelphia District Attorney’s Office (DAO) issue charges against Pownall.

Officer Pownall shot David Jones in the back three times while he was running away from the officer. Jones was carrying a gun, which Pownall found during his search of Jones, but following a brief altercation, Jones tossed his weapon away and ran from Officer Pownall. Perhaps Pownall could have justified his actions (or attempted to) if he felt Jones was still carrying his gun, but his own statements to responding officers made it clear he'd seen Jones throw his weapon away before running. Video recovered from the scene showed Jones was unarmed, never turned towards Officer Pownall or acted in a threatening manner at any point during his brief flight.

As the grand jury sees it, this killing was completely unnecessary.

The IGJ (Investigative Grand Jury) found that by firing his gun in the direction of traffic, Pownall recklessly endangered other people in his vicinity, that at the time of his flight, Jones was not a danger to anyone and that Jones’s death was not necessary to secure his apprehension.

True, it doesn't take much to secure a conviction from a grand jury. But when the target is a cop, prosecutors -- despite playing on a completely-skewed playing field -- rarely seem to be able to talk grand jurors into returning charges. Officer Pownall is innocent until proven guilty, but he'll get to see firsthand what that presumption actually means once a trial's underway.

This has been a big month for police accountability. Hopefully, this trend continues... and expands much further than one DA's office in Pennsylvania.

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posted at: 12:47am on 06-Oct-2018
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Tim Berners-Lee Moves Forward With His Big Plan To Fix The Web By Bringing Back Its Original Decentralized Promise

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Here we go. For years I've been talking about how we really need to move the web to a world of protocols instead of platforms. The key concept is that so much of the web has been taken over by internet giants who have built data silos. There are all sorts of problems with this. For one, when those platforms are where the majority of people get their information, it makes them into the arbiters of truth when that should make us quite uncomfortable. Second, it creates a privacy nightmare where hugely valuable data stores are single points of failure for all your data (even when those platforms have strong security, just having so much data held by one source is dangerous). Finally, it really takes us far, far away from the true promise of cloud computing, which was supposed to be a situation where we separated out the data and the application layers and could point multiple applications at the same data. Instead, we got silos where you're relying on a single provider to host both the data and the application (which also raises privacy concerns).Despite some people raising these issues for quite some time, there hasn't been much public discussion of them until just recently (in large part, I believe, driven by the growing worries about how the big platforms have become so powerful). A few companies here or there have been trying to move us towards a world of protocols instead of platforms, and one key project to watch is coming from the inventor of the web himself, Tim Berners-Lee. He had announced his project Solid a while back: an attempt to separate out the data layer, allowing end users to control that data and have much more control over what applications could access it. I've been excited about the project, but just last week I commented to someone that it wasn't clear how much progress had actually been made.Then, last Friday, Berners-Lee announced that he's doubling down on the project, to the point that he's taken a sabbatical from MIT and reduced his involvement with the W3C to focus on a new company to be built around Solid called inrupt. inrupt's new CEO also has a blog post about this, which admittedly comes off as a bit odd. It seems to suggest that the reason to form inrupt was not necessarily that Solid has made a lot of forward progress, but rather than it needs money, and the only way to get some is to set up a company:

Solid as an open-source project had been facing the normal challenges: vying for attention and lacking the necessary resources to realize its true potential. The solution was to establish a company that could bring resources, process and appropriate skills to make the promise of Solid a reality. There are plenty of examples of a commercial entity serving as the catalyst for an open-source project, to bolster the community with the energy and infrastructure of a commercial venture.And so we started planning inrupt - a company to do just that. Inrupt's mission is to ensure that Solid becomes widely adopted by developers, businesses, and eventually everyone; that it becomes part of the fabric of the web. Tim, as our CTO, has committed his time and talent to the company, and I am delighted to be its chief executive. We also have an exceptional investor as part of the team.
I'm certainly hopeful that something significant comes of this, as it truly is an opportunity to move the internet into that kind of more distributed, less centralized/silo'd world that shows off the true power of the web. I have heard some grousing among some people that this is just Tim Berners-Lee just rebranding the concept of the Semantic Web that he started pushing nearly two decades ago, without any real traction. And, of course, there have been plenty of other attempts over the decades to build these kinds of systems. As it stands right now, there are a few other projects that are getting some traction, including the more distributed social platform Mastodon or some of the ideas that have come out of IndieWeb.That said, we may finally be entering an era where both users and companies alike are recognizing the benefits of a more distributed web and the downsides of a more centralized one. So it really does feel like there's an opportunity to embrace these concepts, and it's good to see the founder of the world wide web ramping up his efforts on this. If it produces real, workable solutions, that would obviously be fantastic, but at the very least if it gets more people just thinking about these concepts, that would also be useful. So, this should be seen as big news for anyone concerned about the powers of the largest internet companies (especially if you're skeptical about government trying to step in to deal with those companies when they don't know what they're doing). While the details and implementation will matter quite a bit, it's exciting to see more movement towards a world in which the data layer is not just separated out, but where end users will be able to fully control that layer themselves, and potentially choose which apps can access what (and for how long). It certainly opens up a real opportunity to bring back the early promise of a truly decentralized web... and that would be a web built on protocols rather than centralized, silo'd platforms.

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posted at: 12:47am on 06-Oct-2018
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Can We Make Congress Less Dumb About Technology?

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Earlier this week, a bunch of organizations -- including Techdirt's own sister organization, the Copia Institute -- announced the launch of a new project, called Future Congress. It's a coalition of organizations, some of whom rarely agree on anything with some of the other members. It is made up of organizations with a variety of political viewpoints and policy ideas. But, this coalition does agree one one thing: we need to stop Congress from being so damn clueless about technology.For many years, we've talked about the unfortunate decision by a Newt Gingrich-led Congress back in the mid-90s to dismantle the Office of Technology Assessment (or OTA). This was the organization that was a non-partisan, careful think tank focused on providing useful technology briefings to anyone in Congress who needed it. And yet, just as technology was becoming central to our every day lives, Congress defunded it (technically, the office still exists on the books, but it has no funding and no staff). Over the years there have been many calls to bring OTA back, and every so often someone in Congress floats a bill... which always gets shot down (the latest was just a few months ago).The goal of the Future Congress coalition is to try to convince Congress to fix this -- for its own good. For many, many, many years now, we've highlighted how every time there's a hearing related to issues regarding technology, nearly all of our elected officials come off looking totally clueless to a degree that is outright embarrassing. They could easily fix this -- in a way that will both stop making them look clueless in front of the world and likely lead to better policy outcomes. Hopefully, they realize this.I will note that last month there were some baby steps towards this, with Congress putting some language into an appropriations bill that fund a study of reviving the OTA while also moving to let the GAO take on some of the work that OTA used to do. It's unclear if this will actually survive or do very much, and Congress should be willing to step up and do much more. Hopefully, this Future Congress coalition will help make it clear to Congress why it should stop being so ignorant on technology -- especially when it has the means to better educate itself.

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posted at: 12:47am on 05-Oct-2018
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GOG Celebrates 10 Years Of Competing With Piracy And Being DRM Free By Saying So

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In gamer circles, Good Old Games, or GOG, is everybody's favorite go-to retort whenever someone brings up the necessity for DRM. While the platform has always been something of a kid brother to Valve's Steam, GOG has made a name for itself by refusing to allow DRM on any titles it sells and, more importantly, being hyper-engaged with its customers and community and fostering that relationship by being genuinely open and human. What many people might not know, however, is that GOG first started in Europe, trying to figure out how to compete with piracy and the grey market long before it waged its war on DRM.Well, GOG is taking a moment to remind everyone of that fact while celebrating its 10 year anniversary.

The GOG.COM story began in Poland, 1994 – a time and place where bootlegging reigned supreme and legal games were a luxury that few could afford. These were the early days of CD PROJEKT – back then specializing in local retail distribution, but the job wasn't easy. After all, how do you compete with the grey market?Our answer was to offer value that gamers were already used to and then some: beloved games in big beautiful boxes packed with goodies, professional localization, and prices that are simply reasonable. And it worked!
It did indeed. In fact, the story of GOG's anniversary is the story of one platform successfully competing with free, with a much bigger competitor, and having to drag wary publishers that might be scared off of the anti-DRM stance along for the ride... for ten years. For a decade now, GOG has built a business that started and is still largely centered around retro-games that are easily pirated in the video game industry of all places, where customers are far more likely to know the methods for piracy than in other industries. And, yet, here they are, retelling how it filled the market for retro-games by assuming many people actually still wanted developers to be rewarded for great game-making.
Good Old Games launches in open beta as a legal way to support classics at affordable prices. No longer abandoned, all games would come with tech support and sorcery to get them running on modern PCs. Every game stuffed with goodies and bonus content that tickles our inner collectors. Everything would be DRM-free – it's only fair after all, and it captures that feeling of ownership on your digital shelf.
And it was both that catering to the public demand for valid and working versions of these games, and of course the stripping out of frustrating DRM, that built up GOG's loyal following. It was merely a few years later when GOG was the platform for several major title day 1 releases, all of which had to follow the anti-DRM "ideology", as GOG puts it. That there is an honest to God DRM-free option is the full response to any publisher that insists DRM is must-have.

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posted at: 12:47am on 05-Oct-2018
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African Countries Shooting Themselves In The Digital Foot By Imposing Taxes And Levies On Internet Use

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Techdirt has written a number of stories recently about unfortunate developments taking place in the African digital world. The Alliance for Affordable Internet (A4AI ) site has usefully pulled together what's been happening across the continent -- and it doesn't look good:

A4AI's recent mobile broadband pricing update shows that Africans face the highest cost to connect to the internet -- just 1GB of mobile data costs the average user in Africa nearly 9% of their monthly income, while their counterparts in the Asia-Pacific region pay one-fifth of that price (around 1.5% of monthly income). Despite this already high cost to connect, we're seeing a worrying trend of governments across Africa imposing a variety of taxes on some of the most popular internet applications and services.
The article goes on to list the following examples.Ugandaimposes a daily fee of UGX 200 ($0.05) to access social media sites and many common Internet-based messaging and voice applications, as well as a tax on mobile money transactions.Zambiahas announced it will levy a 30 ngwee ($0.03) daily tax on social network use.Tanzaniarequires bloggers to pay a government license fee roughly equivalent to the average annual income for the country.Kenyaaims to impose additional taxation on the Internet, with proposed levies on telecommunications and on mobile money transfers.Beninimposed a 5 CFCA ($0.01) per megabyte fee to access social media sites, messaging, and Voice-over-IP applications, causing a 250% increase in the price for 1GB of mobile data.The article explains that the last of these was rescinded within days because of public pressure, while Kenya's tax is currently on hold thanks to a court order. Nonetheless, there is a clear tendency among some African governments to see the Internet as a handy new source of tax income. That's clearly a very short-sighted move. At a time when the digital world in Africa is advancing rapidly, with innovation hubs and startups appearing all over the continent, making it more expensive and thus harder for ordinary people to access the Internet threatens to throttle this growth. Whatever the short-term benefits from the moves listed above, countries imposing taxes and levies of whatever kind risk cutting their citizens off from the exciting digital future being forged elsewhere in Africa. As the A4AI post rightly says:
Africa, with the largest digital divide of any geographic region, has the greatest untapped potential with regards to improving affordable access and meaningful use of the internet. With affordable internet access, African economies can grow sustainably and inclusively.
Sadly, in certain African countries, that seems unlikely to happen.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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posted at: 12:47am on 04-Oct-2018
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Lawsuit Settlement Looking To Kill Philadelphia's Severely Abused Forfeiture Program

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The Institute for Justice has secured a big win in Philadelphia. The city's asset forfeiture program is being torn down and rebuilt as the result of IJ litigation.

In documents filed with the U.S. District Court for the Eastern District of Pennsylvania today, city officials agreed to a set of reforms that will end the perverse financial incentives under which law enforcement keeps and uses forfeiture revenue, fundamentally reform procedures for seizing and forfeiting property, and establish a $3 million fund to compensate innocent people whose property was wrongly confiscated.

The city's program was infamous for things like seizing a house because one resident (not the owner) sold cops $40 worth of drugs. Another case featuring the IJ's legal assistance sought the return of another home seized after a $140 drug purchase. In the first instance, prosecutors dropped the case and returned the property after the litigation received national attention. In the latter, the state's Supreme Court found the seizure of the house unwarranted and unjustifiable -- a harsh punishment that far outstripped the seriousness of the crime.

The proposed settlement [PDF] would drastically alter Philly's forfeiture laws and policies. Importantly, it would strip the financial incentive for seizures by redirecting forfeiture funds towards drug rehab programs and away from the law enforcement agencies that have directly profited from this program for years.

It also would make tiny forfeitures -- the ones least likely to be disputed -- a historical relic. Seizures of less than $1,000 would either need to be tied to an arrest or used as evidence in criminal cases. Cash seizures of less than $250 would be completely forbidden. This is important because data shows the median cash seizure by Philly law enforcement is $178.

More due process is being introduced into the forfeiture process as well. If citizens can show a need for the seized property, they may be able to retain possession of it throughout the forfeiture proceedings. Property owners would -- for the first time -- be allowed to file requests for continuances if unable to make scheduled court dates. It also fully shifts the burden of proof to prosecutors, making them prove owners knew about illegal use of their property.

If the entire settlement is approved, the perverse incentives that have turned a potentially-useful crime fighting tool into a crime of opportunity will be removed and replaced with a set of deterrents that will steer law enforcement towards seizures supported by prosecutions and convictions, rather than by conclusory statements about theoretical illegal activity.

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posted at: 12:47am on 04-Oct-2018
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Confused Swedish Ad Board Says 'Distracted Boyfriend Meme' Is Sexist

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It's pretty difficult to have been on the internet over the past year or so and not come across the distracted boyfriend meme. It has been everywhere. And, unlike many other memes, this one's popularity has shown little sign of waning. If somehow you did miss it, uh, welcome back to the internet after a year away? The meme involves a stock photo of what appears to be a guy checking out a girl who just walked by him, while his somewhat unhappy girlfriend looks angrily at him. Then to make it "meme-like" you put captions over all three characters. Here was one of the early ones that kicked off the meme:

There are thousands of other ones, some of which are actually kinda funny.The reason this is in the news again is that the Swedish ISP Banhof attempted to use the meme in an advertisement on Facebook and Instagram:
A bunch of people complained that the ad was sexist, and reported it to the Swedish Advertising Ombudsman, who recently agreed that the ad was sexist.
"It portrays women as interchangeable objects, and that only their appearance is interesting," wrote the ombudsman, which was unanimous in its decision. It added that there was no link between the services provided by Bahnhof and the objectified image of the women."According to the committee, the objectification is reinforced by the fact that women are designated as workplace representatives while the man, as the recipient of the advertisement, is being produced as an individual," the judgment said.Some of the reviewers involved in the decision also said that the advert presented "degrading" stereotypical views of both women and men. "It gives the impression that men might change female partners in the same way they change jobs. One notifier pointed out that Bahnhof may put off female applicants with the advertisement," the judgment stated.
That feels... like a particularly humorless way to read a meme (it should be noted, FWIW, that the same photographer has a similar stock image with the gender roles reversed).Also, the meme doesn't seem to be commentary about women being interchangeable objects (if anything, it's about what a jackass the guy is), but especially it's use as an ad here seems to be a lot more about playing off the popularity of the meme, and making Banhof seem hip and on top of what all the internet kids are into these days. Amusingly, Banhof noted this in its own statement -- while mocking its own late-to-the-game use of this meme:
"Everyone who follows the internet and meme culture knows how the meme is used and interpreted. [Whether someone is a] man, woman or neutral gender is often irrelevant in this context. We are an internet company and are conversant in this, as are those who would look for a job with us, so we turned to that target group," the statement continued. "If we should be punished for anything, it's for using an old and tired meme."
It's unclear from the reporting if there's any actual punishment for Banhof, or if it just can't keep using that advertisement (though, given that this has now received a ton of press attention, it probably has given the company a lot more attention). Either way, Sweden's Advertising Ombudsman needs to lighten up a bit and maybe enjoy a meme.

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posted at: 12:46am on 03-Oct-2018
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Fashion Designer Balenciaga Opposes Parody Pet-Wear Maker's Trademark Application For 'Pawlenciaga'

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Everyone who knows me knows I love two things more than anything in this world: animals... and puns. And, to my delight, much of the pet industry considers using puns as something of a religion. You've all seen this, with groan-worthy names of pet stores, doggie daycares, and treat makers. And because the world simply can't be a fun place in which to exist, sometimes these punny names cause intellectual property disputes, such as when the Prosecco people managed to oppose a trademark for a pet treat named "Pawsecco", or when a real-life human being hotel called the Chateau Marmont sent a cease and desist notice to the Cateau Marmont, a hotel for, I don't know... raccoons?And now one fashion designer has decided to oppose the trademark for a maker of parody pet clothing, arguing ostensibly that the public both cannot tell the difference between human clothes and pet clothes, as well as that this same public doesn't have a sense of humor.

While Demna Gvasalia has been preparing for Balenciaga’s Spring/Summer 2019 runway show, the brand’s legal team has been readying for a fight. Counsel for the Paris-based brand moved to oppose a pending U.S. trademark application for registration this week, taking issue with “Pawlenciaga,” a trademark that is being used by Pawmain Pets, a North Carolina-based company in the business of making what it calls “parody streetwear for your pets.” According to the opposition that Balenciaga filed on Monday, Pawmain Pets’ “Pawlenciaga” trademark – if registered for use on leather goods, as Pawmain has proposed – “will cause confusion, mistake and deception with respect to those goods, by virtue of [Balenciaga’s] prior registration, use and fame of its Balenciaga trademarks, including [on leather goods].” Moreover, Balenciaga alleges that Pawmain’s proposed registration “would substantially harm [Balenciaga]” and “is likely to cause confusion” with Balenciaga’s trademark rights, which date back to at least 1975.
It's quite a bold argument for a high-end fashion designer to insist that a puntastic name is all that's needed to confuse the public between its goods and those made for animals. One would think that the quality of the product might do some work to stave off such confusion, but apparently not. Still, the average buyer of pet-goods, particularly such luxury items as pet clothing, will be well-acquainted with the long and glorious tradition of puns and parody in the pet industries. It seems laughably unlikely that anyone is actually going to be confused as to the product source or association.Now, while the USPTO has apparently never upheld a parody defense to a trademark opposition, though that defense has obviously been used a zillion times once lawsuits have been filed, it seems there is already some caselaw on the books that the USPTO might turn to as particularly relevant.
The legally-minded amongst us will already be thinking of a similar matter that precedes Balenciaga’s opposition: Louis Vuitton v. Haute Diggity Dog. In that case, Louis Vuitton sued the pets-wear company, alleging that ones of its handbag-shaped dog toys, one that was labeled “Chewy Vuiton” and that was similar in shape, monogram (“CV” vs. “LV”), repetitious design and coloring to a Louis Vuitton Speedy bag, ran afoul of trademark and copyright law. The Fourth Circuit Court of Appeals handed Haute Diggity Dog a win in 2007, holding that despite Louis Vuitton’s claims of trademark infringement and dilution and copyright infringement, Haute Diggity Dog could continue to make and sell plush dog toys that make use of famous luxury trademarks, as “Haute Diggity Dog’s parody is successful.”  
That kind of makes this pretty straightforward, as it's the exact same subject matter and industries participating in this opposition. Whether the USPTO will bother to look to that case to inform its decision is an open question. What isn't an open question is that there was obviously no reason for Balenciaga to do this. There were plenty of other routes to take, including simply ignoring this whole thing while noting that there was little concern for customer confusion. Why it chose to go the bullying route is a question that needs to be put to the designer.

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posted at: 12:46am on 03-Oct-2018
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Court Shoots Down Record Label's Attempt To Expand The Definition Of 'Vicarious' Infringement

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While there has been plenty of attention paid to the BMG v. Cox case, in which Cox was found not to be protected by the DMCA's safe harbors in dealing with repeat infringers, it's increasingly looking like the ruling in that case (which eventually led to a "substantial" settlement) was fairly unique to Cox's situation. Specifically, while much was made of Cox's "13 strikes" repeat infringer policy, in the end the nature of the policy wasn't what sunk Cox: it was the fact that Cox didn't follow its own policy. In other cases, courts seem willing to grant much more latitude to the ISPs to make their own calls. We wrote about the 9th Circuit and its ruling in the Motherless case, which made it clear that a platform gets to set its own policy, and that policy need not be perfect.Meanwhile, down in Texas, there's the UMG v. Grande Communications case, which many had seen as a parallel case to the BMG v. Cox case. This was another case that involved an ISP being bombarded with shakedown (not takedown) notices from Rightscorp, in which Righscorp and its clients felt that ISP was not willing to pass on those notices (thus denying Rightscorp and its clients the ability to collect money in exchange for a promise not to sue). As we noted back in April, while still in the district court, the Grande case wasn't going nearly as smoothly as the Cox case for those wishing to copyright troll. The magistrate judge was quite skeptical, and had tossed out entirely the claims of vicarious infringement (while somewhat skeptically allowing the claims of contributory infringement to move forward).Vicarious and contributory infringement are often lumped together, but they are different. For there to be vicarious infringement, you have to show that the party being sued both had the right and ability to supervise the activity, and that it would directly financially benefit from the infringement. The court rejected that in the case of Grande, noting that just because Grande makes money from its subscribers, that's not enough to show that it was profiting from the infringement.Universal Music tried to amend the complaint to show that it had "more evidence" that Grande and its management company, Patriot, were still vicariously liable -- but the magistrate judge says it's just trying to re-litigate what it lost last time. The recommendation makes fairly quick work of UMG's arguments:

The new evidence Plaintiffs rely on is: (1) Grande tracks its infringing customers; (2) thesecustomers are a la carte internet customers; (3) Grande's profit margins on a la carte customers areits highest of any business lines; and (4) Grande never terminated any user regardless of how manynotices of infringement it received... Plaintiffs contend that these facts make adifference, and are enough to suggest that Grande's failure to terminate infringers is a draw.... The Court disagrees. First, the original Complaint alleged essentially the sameor similar facts. Second, the new allegations still fail to say anything about the motivations ofGrande's subscribers when they sign up with Grande. That is, Plaintiffs still fail to plead factsshowing Grande gained or lost customers because of its failure to terminate infringers. Instead, theproposed amended complaint states that, the evidence demonstrates that Plaintiffs' CopyrightedSound Recordings were a draw to Grande's infringing customers, including customers Grande hadidentified as repeat infringers. ... But as has been noted in prior orders, the meansby which Plaintiffs contend the infringing subscribers infringed the Copyrighted Sound Recordingsby use of the internet and the BitTorrent protocol, which one can access through any ISP. Again,the draw must be something more than this to state a vicarious infringement claim. The allegedlynew facts are insufficient to overcome the deficiencies of the original Complaint.
This is important. For years, the legacy copyright players have continually tried to expand what third parties could be liable for when it came to infringement. It's always been a stretch to use both vicarious and contributory infringement claims in these ways, and it's good to see courts pushing back (though, in this case, the contributory infringement claims still have a chance...). The court directly pointing out that just because a company makes money from a client, that doesn't mean the money is from infringement is an important point that many among the copyright legacy world would like to ignore.

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posted at: 12:46am on 02-Oct-2018
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Sony Caves: The PS4 Will Soon Begin Supporting Cross-Console Play

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Back in June, we talked about a fun little bit of trolling that Xbox and Nintendo teamed up for at the expense of Sony and its PlayStation 4. At issue was Sony's longstanding stance against inter-console play for multiplayer games that would otherwise allow for it, whereas Xbox and Nintendo players all over the world were happily playing MineCraft and Fortnite against one another. The end result of Sony's stance has been both a decent level of frustration by gamers that expect modernity in their console's features, and several YouTube videos and Twitter exchanges between Xbox and Nintendo highlighting that their own consoles had inter-console functionality. In that post, we said it was an open suggestion whether or not this public ribbing would change Sony's stance on the subject.Narrator: it changed Sony's stance on the subject.

After what it calls "a thorough analysis of the business mechanics required," Sony announced on Wednesday the first crack in the PlayStation Network's walled garden approach to cross-console functionality. Starting today, Fortnite on the PS4 will allow for "cross-platform gameplay, progression, and commerce" with versions on the Nintendo Switch and Xbox One (in addition to the Android, iOS, Windows, and Mac platforms where such support was already integrated).
By all accounts, the thorough analysis mostly consisted of high level executives sitting around a table, asking one another if the Playstation should finally support inter-console play, and then sort of staring blankly at one another for days on end until one of them quietly muttered, "Yes?" And this isn't the account of pissed off gamers without an understanding of how this works on the backend. Rather, publishers and developers have basically been screaming at Sony about this for several years now.
Sony has kept the PlayStation Network stubbornly closed off from other consoles' online platforms, despite complaints from multiple game developers that Sony's policy was the only thing stopping them from adding such support to their games.Things started coming to a head earlier this year, when Fortnite players found that merely linking their game accounts to the PS4 version of the game locked them out from using that same account on the Nintendo Switch version. More recently, Bethesda issued what it called a "non-negotiable" demand that any pending console version of its Elder Scrolls Legends card game must have full cross-console support.
So, while Sony can't credibly take credit for listening to fans, it can be said to have happened indirectly, with developers being the ones wanting to bring these features to their customers, and then pushing and threatening Sony over it. Now, of course, Sony will want platitudes for giving its customers what they've wanted for two or so years, but it likely won't get them.By stubbornly choosing protectionism in the form of a walled garden, Sony has made even its eventual good moves come without reward.

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posted at: 12:46am on 02-Oct-2018
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