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This Week In Techdirt History: December 9th - 15th

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Five Years AgoThis week in 2013, we learned about how the NSA and GCHQ infiltrated World Of Warcraft and Second Life, and about how the NSA was to track people. Most big tech companies were calling for major surveillance reform while AT&T was rebuffing criticism from shareholders — but the government's plan for reform seemed mostly cosmetic and ineffectual. Law enforcement was also ramping up its collection of cellphone data and use of Stingray devices, though for the time being the feds were accepting a ruling saying they need a warrant to put GPS devices on cars. But the feds definitely didn't want to share their FISC legal filings with companies suing them over surveillance, and Keith Alexander was insisting he couldn't think of any way to keep Americans safe without bulk metadata collection.Ten Years AgoThis week in 2008, Warner Music was pushing for a music tax and we were explaining why that's a bad idea. Universal was continuing to wage war on Redbox, online video sites were harming themselves with geographical restrictions, and a hairdresser in New Zealand got billed for playing the radio in her shop. In the DRM world, Nokia's flopped "Comes With Music" scheme for devices had its DRM cracked, while Ubisoft finally decided to drop DRM on Prince of Persia in a highly passive-aggressive way.Fifteen Years AgoThis week in 2003, the deluge of online music offerings got even sillier with Coca Cola launching its own download store, even while across the industry customers were starting to question the standard pricing (and it was becoming clear that the real money was in selling hardware). Meanwhile, the RIAA hired ATF chief Bradley Buckles to head up its anti-piracy efforts, while a court was telling MPAA head Jack Valenti that he doesn't get to decide whether studios can send out DVD screeners. But Hollywood was winning on other fronts, trying to push its anti-camcorder laws to the national level, and doing well in its fight for a broadcast flag because consumer electronics companies weren't united in their opposition.

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posted at: 12:13am on 16-Dec-2018
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Kansas Supreme Court Says Cops Can Search A House Without A Warrant As Long As They Claim They Smelled Marijuana

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The Kansas Supreme Court has just given cops a pass to treat residents' homes like cars on public roads. Being in a car greatly diminishes your Fourth Amendment protections and many a warrantless search has been salvaged by an officer (or a dog) testifying they "smelled marijuana" before tearing the car apart.

Unlike a car on a public road, a person's home has traditionally been given the utmost in Fourth Amendment protections. The bar to search a home is higher than the bar to search a vehicle. Cops aren't supposed to be walking up to windows to peek inside. Nor at they supposed to hang out by the door, hoping to catch a whiff of something illegal.

But that's exactly what they'll be able to do now. If they can find a reason to approach someone's home, all they need to do is declare they smelled marijuana to get past the front door without a warrant. This completely subjective form of "evidence" can be used as probable cause to effect a warrantless search.

The stupefying opinion [PDF] opens with an equally-stupefying bit of exposition:

While on routine surveillance at a local convenience store, Lawrence Police Officer Kimberly Nicholson checked a vehicle's license plate. That records check indicated the car had been stopped several weeks earlier with Irone Revely driving. It was noted there was an active arrest warrant for Revely's brother, Chayln Revely. Nicholson confirmed Irone was the driver, and she believed the passenger matched Chayln's description.

Nicholson followed the vehicle, looking for a traffic violation that would permit a vehicle stop and might allow the officer to confirm the passenger's identity. No violation occurred, so Nicholson followed the vehicle to an apartment complex. The passenger got out and ran into an apartment. Irone trailed behind. Nicholson approached and asked Irone if the person who ran into the apartment was his brother. Irone did not answer and continued walking toward the apartment with Nicholson following.

I'm still trying to wrap my mind around the phrase "routine surveillance at a local convenience store" that's just casually dropped into the opening of the opinion as if that collection of words made any sort of sense. Is this how we're spending our law enforcement dollars? Hanging out by local businesses and running plates? It seems, at best, incredibly inefficient.

That being said, the 7-11 stakeout (or whatever) led Officer Nicholson to the door of Lawrence Hubbard's apartment. That's when the law enforcement magic happened:

Nicholson later testified she was about 2 feet from the front door when Hubbard exited. She further testified she "smelled a strong odor of raw marijuana emanating from the apartment." The officer questioned Irone and Hubbard about the smell. Hubbard denied smelling anything and said his lawyer told him humans cannot detect a marijuana odor.

(That last sentence is equally stupefying. Marijuana does have an odor. That being said, that odor is not always present when an officer claims it is. See also: every search predicated on the smell of marijuana that fails to turn up any marijuana.)

More officers had arrived by that time and decided they might need a warrant. The officers told everyone present to leave until the apartment could be searched. Three officers, including Nicholson, performed a "security sweep" to make sure everyone had left. During this sweep, officers saw drug paraphernalia, a gun, and a locked safe. The warrant arrived and the safe was pried open, resulting in the discovery of 25 grams of marijuana.

Now, let's look at Officer Nicholson's claim:

Nicholson said she "smelled a strong odor of raw marijuana emanating from the apartment."

Here's what was found:

[O]fficers pried open the safe and found 25.07 grams of raw marijuana inside a Tupperware container…

So, from two feet outside the doorway, Officer Nicholson smelled raw marijuana located in Tupperware container inside a locked safe inside a bedroom inside the "back bedroom" closet. That's the story she stuck with, which seems facially unbelievable given the facts of the case.

Whatever, says the Kansas Supreme Court. Officer Nicholson was declared credible, given her past nasal expertise. The same with the other officer, who also smelled raw marijuana through the Matryoshka-esque layers shielding the contraband from random apartment visitors.

Among its factual findings, the court concluded: (1) Nicholson had "detected the smell of raw marijuana 200 to 500 times and burnt marijuana 100 to 300 times" in her law enforcement training and professional experience; (2) when Hubbard came out of his apartment, closing the door behind him, both Nicholson and Ivener could smell what they identified as the odor of raw marijuana coming from the apartment; (3) Ivener testified the smell was "potent" and "overwhelming…"

LOL at "overwhelming." One burnt cig and 25 grams in a locked safe inside a sealed Tupperware container. Officer Ivener is more bloodhound than human and is obviously credible as fuck. This third attempt to suppress the evidence fails because the state Supreme Court says assertions that cannot be proven are all that's needed to waive probable cause search requirements. If an officer claims to smell marijuana, the exigent circumstances exception to the warrant requirement kicks in. After all, preventing someone from flushing weed down the toilet is more important than ensuring the rights of the policed.

[W]e agree with the panel that the probable cause plus exigent circumstances exception permitted the warrantless sweep. Therefore, to the extent the paraphernalia evidence and the search warrant were fruits of a warrantless search, the sweep was not illegal and the challenged evidence is not subject to exclusion.

The sound you hear accompanying this sentence is the Constitution being run through the shredder like Banksy artwork:

We hold that the totality of the circumstances surrounding a law enforcement officer's detection of the smell of raw marijuana emanating from a residence can supply probable cause to believe the residence contains contraband or evidence of a crime.

There's all officers need to obtain a warrant. And since you can't have anyone destroying the evidence you claim you smell while you're waiting for a warrant, you get a free warrantless peek.

The panel focused on the second, fourth, and fifth Dugan factors. Under the second, the court highlighted Ivener's testimony that he did not know how many people had been in the apartment originally and whether they all left, so the officers could not know whether everyone was out. This weighs in the State's favor. Under the fourth factor, the panel noted there was evidence the occupants were aware of the officers' presence, so this also weighs in the State's favor because it demonstrates anyone staying behind would be alerted to the likelihood of an impending search.

The dissent says the lower court did not do enough to vet the officers' claims about their ability to identify the odor of raw marijuana a few dozen feet away from where it resided inside a sealed container inside a locked safe. It points out that if officers want to be considered experts on the odor of marijuana, they should be treated as expert witnesses when testifying. Instead, the lower court accepted their claims of expertise (the hundreds of past marijuana odor sniffs) but then decided they should only be held to the same standard as a lay person giving non-expert testimony. From the dissent:

The officers in this case were not testifying as mere lay persons. On the contrary, they specifically stated that the origin of their ability to smell and identify the source of their olfactory perception as raw marijuana stemmed from their brief exposure to the identified odor during their study at one or more police academies, followed by their experience with numerous cases in which they had successfully detected the substance. This uncontroverted dependency between the officers' training and experience on the one hand and the opinions they expressed on the other hand qualified their testimony about detecting the strong, potent, or overwhelming odor of raw marijuana as expert opinion testimony.

[...]

As urged by the defense, the science, if any, behind the officers' apparently sincere belief in their professed ability to detect an odor of raw marijuana should have been subjected to vetting under the rule of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which is now codified in subsection (b). The officers' expert opinion testimony should have been admitted on the critical issue of the existence of probable cause at the time of the sweep of the apartment only if "(1) [t]he testimony [was] based on sufficient facts or data; (2) the testimony [was] the product of reliable principles and methods; and (3) the witness[es] ha[d] reliably applied the principles and methods to the facts of the case." K.S.A. 2017 Supp. 60-456(b). The district judge erred by failing to exercise her gatekeeping function under subsection (b).

This would have given the defendant a chance to raise a Daubert challenge during trial, which could have resulted in the lower court finding in his favor on the unconstitutional search argument. Rather than officers simply saying "Oh, I've smelled weed a lot and also this time," they'd actually have to provide some evidence of their claims. Is there anything "scientifically valid" about claiming to have experienced the "overwhelming" odor of raw marijuana safely ensconced in a goddamn safe? Probably not. But we'll never know because Kansas courts won't apply that standard. And the state's courts will never have to apply the standard because the top court has stated it's now OK for cops to rescue a warrantless search simply by saying they smelled something illegal.

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posted at: 12:12am on 15-Dec-2018
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Sony Released Its Playstation Classic Console In A Way That Makes It Eminently Hackable

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Gamers of a certain age will be very familiar with the insanity from roughly 2010 that was Sony's reaction to having its Playstation 3 console hacked to return functionality that Sony initially advertised and then rescinded via a firmware update. While PS3 owners cheered on the hack, as many of them loved the function that Sony took away, Sony instead began a full on legal war with the Geohot, the hobbyist who gave users what they wanted. The whole thing was a complete mess that made Sony look awful and ultimately resulted in the Playstation 4 of course not having the function that users wanted, and the console being much, much more locked down at release.I'm going to take a moment again to remind you that this all occurred only roughly 8 years ago. Why? Well, because Sony recently released its Playstation Classic retro console... and apparently made it very, very easy to hack.

The PlayStation Classic was a great idea that was disappointingly executed. Not surprisingly, hackers have been hard at work trying to crack the novelty console as they’ve done already with Nintendo’s NES Classicand SNES Classic.The job’s been made easier, the hackers claim, thanks to Sony reportedly housing the key to decoding the PlayStation Classic’s firmware on the device itself, rather than utilizing a private key held by Sony. The underlying code that runs on game console is encrypted to prevent people from tampering with it, but in this case the tools to unlock and start changing how the console operates were available to anyone who dug through the code by copying it onto a PC. As first reported by Ars Technica, console hacker yifanlu pointed it out on Twitter late last week in-between streaming his attempts to break open the console’s digital architecture on Twitch. So far they’ve been able to play unincluded PS1 games like Spyro using a thumb drive and are currently working on getting other emulators working on it as well.
Here again we see hackers enabling what gamers wanted out of their Playstation Classic devices, but which Sony failed to provide. The biggest disappointment in the Playstation Classic has been the short game library. By screwing around with the console, tinkerers can enable playing many, many more games. And, given that this is Sony we're talking about that just went through all of this with the PS3, you have to wonder just how much of this was done on purpose, and how much is Sony not having things buttoned up on their end.
“There really isn’t any security on the device at all,” yifanlu told Kotaku in an email. “Sony managed to accidentally include their firmware update private keys on every console.”
If that's true, you have to wonder if another round of stupid of the kind we saw with the PS3 is about to happen. Sony is notoriously protective of its hardware, often leading it down a litigious path. But if the company were to once again attack tinkerers and deprive users of useful features for its product, and did so after so willfully ignoring securing its consoles from this type of thing, that would nearly smack of a honeypot rather than Sony having any true gripe.

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posted at: 12:12am on 15-Dec-2018
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EU General Court Refuses To Allow St. Andrews Links To Trademark 'St. Andrews' For All The Things

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For those of us who have fallen in love with the world's most personally infuriating sport, golf, the name The St. Andrews Links Golf Course is of course quite notable. The famed "Cathedral of Golf" also happens to be located in a town of the same name, St. Andrews in Scotland. St. Andrews is a fairly common term in the naming of locations and famous landmarks. Despite this, The Saint Andrews Links went to the EU's Intellectual Property Office to request it be granted a trademark for "St. Andrews" in roughly every category, including broadly in apparel and sports goods. When that request was denied in 2016 on grounds that location names have high bars to clear to get trademarks and are therefore relatively rarely granted, St. Andrews Links took its case to Luxembourg on appeal.There, the EU General Court dismissed the appeal, arguing again that "St. Andrews" is primarily a reference to the town of St. Andrews, not to any provider of the type of goods that St. Andrews Links wanted to hold trademarks for.

But having had its application to the European Union Intellectual Property Office (EUIPO) turned down in 2016, an appeal against the decision has now been dismissed by the EU General Court in Luxembourg.  According to official documents, the appeal board argued “the expression ‘St Andrews’ referred above all to a town known for its golf courses though not particularly for the manufacturing or marketing of clothing, footwear, headgear, games and playthings.”The court said EU and UK law generally excludes the registration of geographical names as trade marks “where they designate specified geographical locations which are already famous, or are known for the category of goods or services concerned.”
In other words, the town itself is also well known and, because the mark applied for consisted of the name of that famous town, St. Andrews Links can't lock up "St. Andrews" for itself in a bunch of categories not directly related to its business. Readers here will likely be nodding along, understanding that this all makes perfect sense. The reason I'm highlighting all of this is because of how frustratingly rare it is for an intellectual property office and appeals court to get this so, so right. Too often, corporate wishes are simply granted, especially when dealing with an entity like St. Andrews Links, which is itself rather famous and is a point of pride for the region.It sure would be nice if other IPOs applied the intent of the law this strictly.

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posted at: 12:12am on 14-Dec-2018
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No Agreement Made On EU Copyright Directive, As Recording Industry Freaks Out About Safe Harbors Too

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Today was the latest set of "Trilogue" negotiations for the EU Copyright Directive, between the EU Council, the EU Commission and the EU Parliament. When the trilogues were first scheduled, this was the final negotiation and the plan was to hammer out a final agreement by today. As we've been reporting lately, however, it still appeared that there was massive disagreement about what should be in Article 13 (in particular). And so, today's meetings ended with no deal in place, and a new trilogue negotiation set for January 14th. As MEP Julia Reda reports, most negotiators are still pushing for mandatory upload filters, so there's still a huge uphill battle ahead -- but the more regulators realize how disastrous such a provision would be for the public, the better.Also worrisome, Reda notes that after the Parliament rejected Article 13 back in July, MEP Axel Voss agreed to add an exception for small businesses that helped get the proposal approved in September. Yet, in today's negotiations, he agreed to drop that small business exception, meaning that if you run a small platform that accepts user generated content, you might need to cross the EU off your list of markets should Article 13 pass.One other important thing. Earlier this week, we noted that the TV, film and sports legacy companies were complaining that if Article 13 included a basic safe harbor (i.e., rules that say if you do certain things to remove infringing content, you won't be liable), then they no longer wanted it at all -- or wanted it to just be limited to music content. That suggested there might be some separation between the film/TV/sports industries and the music industries. But, no. Right before the trilogues, the legacy recording industries released a similar letter:

The fundamental elements of a solution to the Value Gap/Transfer of Value remain, as acknowledged by all three institutions in their adopted texts, to clarify that UUC services now defined as Online Content Sharing Service Providers (OCSSP) are liable for communication to the public and/or making available to the public when protected works are made available and that they are not eligible for the liability privilege in Article 14 of the E-Commerce Directive as far as copyright is concerned. We continue to believe that only a solution that stays within these principles meaningfully addresses the Value Gap/Transfer of Value. Moreover, licensing needs to be encouraged where the rightsholders are willing to do so but at the same time not be forced upon rightsholders.Therefore, proposals that deviate from the adopted positions of the three institutions should be dismissed.Unfortunately, for a number of reasons, the text now put forward by the European Commission would need fundamental changes to achieve the Directive's aim to correct the Value Gap/ Transfer of Value.For example, solutions that seek to qualify or mitigate the liability of Online Content Sharing Service Providers should be considered with an abundance of caution to avoid the final proposal leaving rightsholders in a worse position than they are in now. Any mitigation measures, should they be offered to OCSSPs, must therefore be clearly formulated and conditional on OCSSPs taking robust action to ensure the unavailability of works or other subject matter on their services.
This is pretty incredible when you get passed the diplomatic legalese. These music companies are flat out admitting that the entire goal of this bill is to hit internet companies with crippling liability that makes it literally impossible for them to host any user generated content. This isn't -- as they claim -- about a "value gap" (a made up meaningless term). Rather this is the legacy entertainment industry going all in on an attempt to change the internet from a platform for the public, to a locked up platform for gatekeepers. In short, they want to take the internet and turn it into TV. Europe should not let this happen.

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posted at: 12:12am on 14-Dec-2018
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School Boots Professor Off Campus After He Exposes Its Complicity In Predatory Publishing Schemes

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Predatory publishing -- the pay-for-play practice that allows anyone to have their research published as soon as the check clears -- may end up costing a professor his job. Derek Pyne, associate professor of economics at British Columbia's Thompson Rivers University, has managed to turn his own campus against him simply for telling the uncomfortable truth.

His 2017 paper, The Rewards of Predatory Publication at a Small Business School, exposed the ugly side effects of the constant pressure on researchers and academics to be published. "Publish or perish," the saying goes. And if you can't get published by someone who thinks your research is worth publishing, get published by someone who thinks everyone with enough cash on hand deserves to be published.

What Pyne found was schools rewarding publication, whether or not the publication was bought and paid for.

It finds that the majority of faculty with research responsibilities at a small Canadian business school have publications in predatory journals. In terms of financial compensation, these publications produce greater rewards than many non-predatory journal publications. Publications in predatory journals are also positively correlated with receiving internal research awards.

Some of those who were reaping the rewards of being published by taking advantage of pay-for-play publications were Pyne's associates at Thompson Rivers University. They didn't appreciate being the data set Pyne used in his research paper. This backlash has led to Pyne being ousted from the campus of the school that employs him. (via Reason)

As a result of that 2017 paper and the media attention that followed, Pyne says, he’s been effectively banned from campus since May. He may visit only for a short list of reasons, such as health care. Teaching is out and so, too, is the library. It’s unclear when, or if, Pyne will be allowed to resume his normal duties.

This isn't the only thing Pyne has done to piss off his colleagues. He's also engaged in a number of heated arguments with faculty about the quality of the school's grad programs and brought his numerous complaints to the press. Administrators claimed coworkers were afraid of him and demanded he undergo a psychological evaluation. His keys were taken and he was banned from campus. Pyne cleared the psych eval -- one that found (understandably) Pyne felt persecuted by his employer. He's now back on the payroll, but has been told to "cease communicating inappropriate, defamatory and insubordinate statements" about the school.

Fortunately, Pyne has a few allies. Retraction Watch -- an essential site with zero sympathy for predatory publications -- is now involved in Pyne's fight against the university.

Ivan Oransky, Distinguished Writer in Residence at New York University's Arthur Carter Journalism Institute and co-founder of Retraction Watch, has followed Pyne’s case for over a year. He said recently that he was “puzzled” about “what's actually going on. It's not very helpful when a university takes action like this but doesn't say why.”

That's why Retraction Watch has argued for the release of university investigations, he said, citing an article on why Cornell University hasn’t released its findings in the Brian Wansink research misconduct case, among other similar incidents elsewhere.

He also has some free speech warriors of the Canadian variety helping him out.

Canada's Society for Academic Freedom and Scholarship has appealed to Thompson Rivers on Pyne's behalf. The Canadian Association of University Teachers, similar to American Association of University Professors, is also looking into the case.

Thompson Rivers has refused to participate in that investigation so far, David Robinson, CAUT’s executive director, said recently.

“This is a very peculiar case,” Robinson said. “But certainly criticizing colleagues’ research or his administration is intramural speech protected by academic freedom. These are matters of educational quality. He may be correct, or he may not be correct. But he certainly has a right to express his views on educational quality.”

Entities that can't handle criticism love shooting the messenger -- especially when that messenger is pointing out the university's willingness to reward quantity over quality. Whatever reputational damage the school and its pay-for-play professors are suffering isn't the result of defamation or inappropriate statements from Pyne. It's a direct result of their actions and the incentives the university employs. The university says it will reward educators who publish. And those educators are hastily shoving receipts from sketchy publications into their pockets as they make cases for merit raises. The university could have responded by altering its incentive programs, and those stung by Pyne's research could have acknowledged their gaming of the system. Instead, they're doing this, which is unfortunate, but also just as unfortunately, unsurprising.

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posted at: 12:12am on 13-Dec-2018
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Under Armour Can't Help But Issue A Cease And Desist For Tiny Clothier Cascade Armory

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Athletic clothing maker Under Armour has graced our fair pages a few times in the past, always for being on exactly the wrong side of the trademark equation. Between trying to torpedo tiny Christian companies like Armor & Glory, and ensuring that every member of the public is aware that its own executives don't have a sense of humor that they are aware of by suing Ass Armor, the mega-company has been quite busy making sure the entire world knows that only it is allowed to use the word "Armour." Notably important in all of this is that the company is exactly wrong in this claim, as trademark law nearly always comes down to whether customers will be confused by the use of words and trade dress, and it is not a platform for a single company being able to lock up a fairly common word.This is a lesson that apparently hasn't stuck for the folks at Under Armour, however, as the company has recently fired off a C&D letter to another tiny clothier, Cascade Armory.

According to Source Weekly, a start-up clothing store in Bend, Oregon named Cascade Armory has received a cease and desist order from the gigantic corporation claiming that the tiny store's brand could cause confusion to the billions of dads and bro-dudes who wear Under Armour's ass-ugly athletic gear.As you can see from the [below] picture, the logos of both companies share almost no similarities—other than the word "armor" which UA seems to have trouble spelling.
Here are the logos in question.
The first thing that should immediately jump out at you is just how insane any claim that there is the potential for customer confusion here would be. Cascade Armory isn't even using the word "armor", never mind the British spelling that Under Armour uses. On top of that, all of the dress and iconography is significantly different. Add to all of this that Cascade Armory isn't an athletic clothing maker, but a traditional one, and that should be the final nail in all of this. Under Armour can play make-believe pretending it lives in a world where it can tell everyone else on the planet that they cannot use any words that are even close to "armour" if it wants, but it simply isn't true.And, yet, the company makes demands far outside its legal rights.
In the cease and desist order, Under Armour demanded that Cascade Armory abandon with prejudice its application for trademark and any other applications and registrations for marks comprised of or containing the term armory, armoury, armor, armour or any misspellings or variations thereof. The company demanded Cascade Armory permanently quit using, registering or applying to register the Cascade Armory mark and any versions containing the same versions of 'armory' or 'armor.' Also, they demanded that Cascade Armory deactivate its website and social media pages that contain the same words.
These demands are flatly obscene given the flimsy nature of Under Armour's basis for all of this. Of course, we've said many times that big companies play the trademark bully because it works, largely because it can scare the hell out of startups and small companies that don't have a comparable legal war chest with which to work.
While the owners of Cascade Armory, Alex and Diana Short, have no intention of kowtowing to Under Armour's bullying tactics, they also admit that a legal fight against the conglomerate would put their young business in peril.
Which is why companies like Under Armour get away with this nonsense. Why they feel the need to do so is an open question.

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posted at: 12:12am on 13-Dec-2018
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How Bike-Sharing Services And Electric Vehicles Are Sending Personal Data To The Chinese Government

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A year ago, Techdirt wrote about the interesting economics of bike-sharing services in China. As the post noted, competition is fierce, and the profit margins slim. The real money may be coming from gathering information about where people riding these bikes go, and what they may be doing, and selling it to companies and government departments. As we warned, this was something that customers in the West might like to bear in mind as these Chinese bike-sharing startups expand abroad. And now, the privacy expert Alexander Hanff has come across exactly this problem with the Berlin service of the world's largest bike-sharing operator, Mobike:

data [from the associated Mobike smartphone app] is sent back to Mobike's servers in China, it is shared with multiple third parties (the privacy policy limits this sharing in no way whatsoever) and they are using what is effectively a social credit system to decrease your "score" if you prop the bike against a lamp post to go and buy a loaf of bread.
Detailed location data of this kind is far from innocuous. It can be mined to provide a disconcertingly complete picture of your habits and life:
through the collection and analysis of this data the Chinese Government now likely have access to your name, address (yes it will track your address based on the location data it collects), where you work, what devices you use, who your friends are (yes it will track the places you regularly stop and if they are residential it is likely they will be friends and family). They also buy data from other sources to find out more information by combining this data with the data they collect directly. They know what your routines are such as when you are likely to be out of the house either at work, shopping or engaging in social activities; and for how long.
As Hanff points out, most of this is likely to be illegal under the EU's GDPR. But Mobike's services are available around the world, including in the US. Although Mobike's practices can be challenged in the EU, elsewhere there may be little that can be done.And if you think the surveillance made possible by bike sharing is bad, wait till you see what can be done with larger vehicles. As many people have noted, today's complex devices no longer have computers built in: they are, essentially, computers with specialized capabilities. For example, electric cars are computers with an engine and wheels. That means they are constantly producing large quantities of highly-detailed data about every aspect of the vehicle's activity. As such, the data from electric cars is a powerful tool for surveillance even deeper than that offered by bike sharing. According to a recent article from Associated Press, it is an opportunity that the authorities have been quick to seize in China:
More than 200 manufacturers, including Tesla, Volkswagen, BMW, Daimler, Ford, General Motors, Nissan, Mitsubishi and U.S.-listed electric vehicle start-up NIO, transmit position information and dozens of other data points to [Chinese] government-backed monitoring centers, The Associated Press has found. Generally, it happens without car owners' knowledge.
What both these stories reveal is how the addition of digital capabilities to everyday objects -- either indirectly through smartphone apps, as with Mobike, or directly in the case of computerized electric vehicles -- brings with it the risk of pervasive monitoring by companies and the authorities. It's part of a much larger problem of how to enjoy the benefits of amazing technology without paying an unacceptably high price in terms of sacrificing privacy.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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posted at: 12:11am on 12-Dec-2018
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Iowa State Tells Students To Piss Off And Continues Its New Trademark Policy Despite Their Concerns

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We've been discussing Iowa State University's bold attempt to twist itself into a knot over its trademark policy for some time now. This all started when the school attempted to bow at the alter of certain Iowa state government reps to disallow a pro-marijuana alumni group from using school iconography. For its efforts, the alumni group beat the school in court on First Amendment grounds, eventually resulting in a $600k judgement against the school. Rather than learning its lesson, the school reacted to all of this by rewriting its trademark policy for student groups, pulling back permission of all kinds for groups to use the school's name and symbols. This, predictably, led to a full on revolt by students, with all kinds of groups refusing to associate themselves with the school at all. The student government, meanwhile, pointed out that the policy was written with zero input from students or student representatives.In other words, ISU managed to piss off its own students by trying for iron grip control for... reasons?With the revolt in full swing, you might have thought that perhaps this would be the thing that caused ISU to wake up and reverse course. Noooooooope. Instead, the school's administration simply penned what reads like a canned letter to its students about the trademark policy, explaining its reasoning for doing whatever the fuck it wants and brushing student concerns aside.

“Thank you for your interest and concern regarding the recently modified Guidelines for University Trademark Use by Student and Campus Organizations (Guidelines),” the opening of the letter sent by the university trademark office reads. “We value your input as representatives of the student body.”The letter explains the purpose, process and means through which the policy was implemented, going through the Trademark Advisory Committee (TAC) of which one current member of Student Government was present.
The letter did promise to expand the TAC to include more student representation, but that pledge is little more than tripe given that the policy has already been written and put into practice as of the first semester of school. On top of that, a big part of the frustration on the part of students has been the school's nonstop claim that the policy change had nothing to do with the court battle it recently lost, whereas the letter admits that it was.
Whereas University Counsel Michael Norton had said the court case between the Iowa State chapter of the National Organization for the Reform of Marijuana Laws’ (NORML) and the university had nothing to do with the implementation of the policy at a Student Government meeting in August, the letter said the policy was “certainly influenced” by court cases across the country, including the NORML lawsuit.“It seems to have made student organizations more angry, it is getting worse not better,” Woodruff said. “The university still hasn’t apologized for their miscommunication, they still haven’t claimed any responsibility … This response is more of the same, telling students they are just associated with the university. We aren’t associated with the university, we are the university.”
Frankly, you would think the school would want to boast of a robust student organization landscape. That's one of the draws in campus life that brings students in. Prospective students as of this moment, however, have to be scratching their heads wondering why the school is in some stupid, needless intellectual property war with its own students.And, honestly, why at every turn in this saga of stupid, Iowa State has managed to do exactly the wrong thing.

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Denuvo-Protected Just Cause 4 Cracked In A Day, Suffering From Shitty Reviews

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Two common topics here at Techdirt are about to converge in what will likely serve as a lovely example of how piracy is often a scapegoat rather than a legitimate business issue. The first topic is Denuvo, the once-unbeatable DRM that has since become a DRM that has been defeated in sub-zero days before game releases. The exception that used to prove the rule that DRM is always defeated has become another example that yet again proves that rule. On the other hand, we've also talked at length that the real antidote for piracy is creating a great product and connecting with fans to give them a reason to buy. The flipside of that formula is that no amount of piracy protection is going to result in big sales numbers for a product that sucks.While that's typically obvious, we're all about to watch what happens when a game both has its piracy protection fail completely and is deemed to be a shitty product, with Just Cause 4 having its Denuvo protection defeated a day after launch while the game is suffering from withering reviews.

This long-anticipated AAA action-adventure title is the follow-up to Just Cause 3, which was also protected by Denuvo. That game was released in December 2015 but wasn’t cracked until the end of February 2017.Compare that with Just Cause 4. The game was released on December 4, 2018 then cracked and leaked online December 5, 2018. Just Cause 3 and Just Cause 4 were both defeated by cracking group CPY, who are clearly getting very familiar with Denuvo’s technology.
Okay, so the game is available on all the regular torrent forums, fully cracked in a day. This again raises the question as to why game publishers even bother with Denuvo any longer. The instances in which Denuvo games are defeated immediately after release are so commonplace at this point that I don't even bother writing them all up. The assumption at this point should be that Denuvo is useless. Somehow, game publishers don't appear to be getting the memo.But Just Cause 4 is also being thoroughly panned by reviews.
While having the game appear online the day after release is bad enough, another problem is raising its head. According to numerous reviewers on Steam, the game is only worthy of a ‘thumbs down’ based on complaints about graphics, gameplay, and numerous other issues.While these things are often handled via early patches from developers, the negative reviews mean that the average score on Steam is currently just 5/10. That, combined with the availability of a pirated version online, seems like a possible recipe for disaster and something that could raise its head later should sales fail to impress.
And if that in fact happens, we'll all get a front row seat to watch a game publisher decide exactly how to respond to all of this. On the one hand, the focus could be on the quality of the product, with reasonable communications sent out acknowledging customer concerns and promising to address them with quality patching and updating. On the other hand, the company could simply point to the pirated versions available online and scapegoat piracy as the reason for all that ails the sales numbers.Given that this is Square we're talking about, it seems practically inevitable that what we'll see is the latter. But when you do see that, keep in mind that customers didn't like this game and reviewed it poorly. And recognize it for what it is: blame-shifting.

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Atlanta Cops Caught Deleting Body Cam Footage, Failing To Activate Recording Devices

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Atlanta, Georgia, August 23, 2016:

Officials are promising more transparency on the part of law enforcement, and greater trust between cops and the community. The body cameras “will strengthen trust among our officers and the communities they serve by providing transparency to officer interactions,” said Atlanta Mayor Kasim Reed this past week in announcing a purchase.

Oh, we were all so very young then. Look at us (including me!), pointing to the increasing adoption of body cameras as the ushering in of a new era of transparency and accountability. Didn't take long for this lily to get unceremoniously de-gilded.

Cameras are great tools of accountability. They just can't be controlled and maintained by cops. Two years after promising a better police force brimming with accountable officers steadily working to rebuild relationships with the citizens they police, Atlanta residents are being informed their servants/protectors are cheats and liars.

The audit looked at a random sample of 150 videos from officers’ body cameras. In more than half the cases, officers failed to activate and deactivate their cameras at the required time, the audit said.

Officers also miscategorized 22 of the videos, including a use of force incident. Auditors said mislabeling the videos may have led to some being deleted prematurely.

And the audit said that officers failed to capture two-thirds of dispatched calls between November 2017 and May 2018.

These results shouldn't shock Atlanta residents or readers of this site. It doesn't even shock Atlanta Police officials. Police Chief Erika Shields says she's "not happy" with the results of the audit, but also "not surprised." She excuses her officers actions in the worst possible way:

"I knew that what we are asking of officers is a culture shift."

It's your job to make sure the "culture" actually "shifts," Chief Shields. That it hasn't budged despite the addition of body cameras says a whole lot about the culture at the top of the PD. Whatever discipline Shields has meted out (she only says it happens, not how frequently or severely) clearly isn't enough. And the culture that remains in place in the Atlanta PD is downright nasty.

Auditors identified 64 videos “that were deleted by users who should not have had been authorized to delete videos from the system” from November 2016 to 2018.

Officer use-of-force incident videos are supposed to be handled differently. Supervisors are supposed to upload them and they to be labeled properly in case the department or the public needs to review them later.

But the audit found APD supervisors routinely didn’t understand their responsibilities. One zone supervisor told auditors he was unaware that it was his job to upload use of force videos.

Officers know the system is flawed and abuse it. Those in charge of securing recordings officers may not want retained either don't know what they're doing or are playing dumb when questioned by auditors. At the top of the miserable heap is a chief who has allowed flagrant policy violations to occur under her watch.

An official worth a damn would never express their lack of surprise at this sort of behavior from underlings. There should be shock and dismay at these results, not a shrug of "They're cops, what can you do?" emanating from the top person in Atlanta law enforcement. If that's the official reaction, the next audit will just find more of the same.

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This Week In Techdirt History: December 2nd - 8th

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Five Years AgoThis week in 2013, we saw a spate of worrying changes around the world, with a German court telling Wikimedia that it's liable for user content, a French court ordering a search engine to make an entire website disappear over copyright infringement, and Italian politicians looking to have copyright handled by regulators, not courts — but at least in the UK, a court was also ruling that software functionality is not subject to copyright. Back in the US, just before the MPAA reached a settlement with Hotfile that would assuredly not actually help any artists, the agency was surprisingly told it couldn't use the words "piracy", "theft" or "stealing" during the trial. And there were developments in two major long-term IP court battles, with the appeals court overturning the ruling exempting APIs from copyright in the Oracle/Google case, and the Supreme Court agreeing to hear the Alice software patent case.Ten Years AgoThis week in 2008, before Denuvo became the leading name in the useless and annoying DRM world, it was SecuROM driving gamers nuts while failing to stop pirates — and so nobody was happy when RockStar decided to use it for Grand Theft Auto (apparently having learned nothing from seeing the high-profile failure of Spore's DRM). Warner Music was trying to talk universities into making students pay a piracy tax, while copyright apologists were arguing that schools which refuse to do so were protecting "terrorists, pedophiles, phishing-scheme operators, hackers [and] identity thieves". The MPAA, meanwhile, was trying to claim that its desire for selectable output control on media devices was a pro-innovation stance being opposed only by the luddites at the CEA...We also saw a few key copyright developments in the courtroom: the banning of Bratz dolls (we covered this fascinating fight in a podcast this year), and Joe Satriani's lawsuit against Coldplay.Fifteen Years AgoThis week in 2003, the spam wars heated up as the world headed into the holiday shopping season, with spammers using new techniques to get around filters and even designing extensive spam campaigns just to annoy and hinder anti-spam companies — which were themselves becoming a lucrative industry. Alongside all this, we were beginning to realize just how much spam was coming from networks of hijacked computers. Meanwhile, with every damn tech company trying to launch an online music store, even Hewlett Packard was trying to get in on the action, while the RIAA was filing more insane filsharing lawsuits including one infamously targeting a 79-year-old retiree with no computer.

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The Emmys People Are Opposing A Pet Products Company Named After A Dog Named 'Emmy'

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In the pantheon of dumb trademark disputes, you would probably expect there to be some correlation between the volume or level of dumb of a dispute and the involvement of a member of the entertainment industry. Without having any hard data in front of me, I still feel quite comfortable stating that this expectation is almost certainly correct. The entertainment industries are notoriously protective of all things intellectual property, after all. Still, sometimes you run across a dispute that is so silly it takes your breath away.Meet Kevin Rizer. Kevin owns a pet products company in Texas. When he named his company, he drew inspiration from his own furry, four-legged friend, his cancer-surviving dog, whose name is Emmy. Thus, Emmy's Best was created to make pet products, and, damn it, you already know where this is going, don't you?

Last February, Rizer filed for a trademark for Emmy’s Best. That’s when he said the National Academy of Television Arts and Sciences pushed back. NATAS, the organization behind the Emmy Awards, claimed the trademark would confuse consumers, according to Rizer.“They don’t think people can tell the difference between a pet products company…. and what they do… which is give out awards,” Rizer said.
It should go without saying that this trademark opposition from NATAS is ridiculous. The two companies aren't remotely in the same marketplace, never mind competing with one another. On that same level, it's a stretch to suggest that any member of the public is going to go shopping for their beloved pets and suddenly find themselves confused into thinking that the Emmy awards are somehow involved. Despite this, Rizer tried to reason with NATAS, going so far as to offer to drop the trademark application entirely. NATAS, however, says this isn't enough and is demanding that Rizer's business name be changed entirely.Its reasoning? Well, Emmy the dog was given that name because Rizer at one point wanted to win an Emmy. Seriously, NATAS, highlights this "About Us" page on Emmy's Best's website as evidence.
I had always wanted an Emmy, but not this one. You see, I was a struggling television director/producer when this white bundle of a fur ball came into my life. Having always wanted to win an Emmy award, a friend recommended that I name my new puppy Emmy. Eight years later, there is still only one Emmy in my life, and I wouldn't have it any other way. This white labrador retriever-human mix has brought more joy, satisfaction and companionship into my life than any shiny statue ever could. It is with great pride that Emmy's Best Premium Pet Products was born, and bears my Emmy's name.
With that ammunition, NATAS claims the name must be changed.
“Emmy has been the premier mark of excellence in television for seven decades,” wrote Paul Pillitteri, the senior vice president of communications for NATAS. “Emmy’s Best cites this legacy as its inspiration for copying the famous Emmy trademark.”“EMMY® has been the premier mark of excellence in television for seven decades. Emmy’s Best cites this legacy as its inspiration for copying the famous EMMY trademark. We are actively and generously seeking an agreement that allows the company to continue to grow without infringing this iconic trademark.”
It's hard to imagine a better example of big versus small trademark bullying at work, particularly as Emmy is now waging a third battle with cancer and may not live through the rest of the year. Emmy's owners, meanwhile, are locked into a stupid trademark battle just because NATAS wants to play the unreasonable bully.Real good look for the entertainment industry, guys.

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It's Been 50 Years: Take Some Time This Weekend To Watch Doug Engelbart's Mother Of All Demos

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Normally, on the weekend, we look back at what we wrote about on Techdirt five, ten and fifteen years ago, but I'm going to pre-empt at least a bit of that with this post. Ten years ago, we wrote about the 40th anniversary of the famous and iconic "Mother of All Demos" by Doug Engelbart on December 9th, 1968. A little over five years ago, we wrote about it again, unfortunately on the occasion of Engelbart's passing.But, Sunday will now mark the 50th anniversary of the demo, and there's a very impressive looking Symposium about it happening at the Computer History Museum in Mountain View, California.It's interesting, in Silicon Valley, how much disdain some have for the past. After all, it's here that we're always talking about inventing the future. Engelbart's demo, 50 years ago, was exactly that. Before even the idea of a graphical user interface for a computer, or the concept of a wider internet, was conceived of, Engelbart was literally demoing a ton of ideas, products, concepts and services that we all use regularly today. Even the demo itself (let alone what he was demoing) was somewhat historic, as the demo showed what was happening on his computer on-screen, but part of it was done via teleconferencing and video sharing (again before most people even had the foggiest idea what that could mean). It demonstrated, for the first time, ideas like the computer mouse, a word process, windows, a graphical user interface, computer graphics, hypertext linking, collaborative editing, version control, dynamic linking and more.I watch the entire 90 minutes every few years, and it's amazing how inspiring it is. How miraculous it is. Every time we link to it, it ends up moving around or appearing in different chunks online, but the Doug Engelbart Institute now has it in three separate parts (each about 30 minutes) on YouTube, so I'll post that version here:

Or, if you really don't want to watch the entire thing, there's a nicely done "interactive version" that breaks it down into sections and sub-sections, so you can just watch the clips that are of most interest to you (though, I still recommend watching the entire thing for context).Part of what's so inspiring about the demo, of course, is that we're watching it in retrospect. We now know what transpired over the next 50 years. If none of what Engelbart had presented became common, the demo would probably just be seen as quirky nonsense, a la predictions of flying cars and moon bases. But, that's not what happened at all. Instead, we know that watching Engelbart's demo is watching real history in action.It's watching the impossible, the magical, become reality. It's the very thing that has made Silicon Valley so much fun for the past 50 years. Making the impossible not just possible, but everyday. Enabling people to do amazing things.Of course, we're living now in an age where the narrative on technology has shifted. People are recognizing that innovation and advancement isn't always all good for everyone. People are recognizing that it has consequences and creates problems -- sometimes serious ones. And those conversations are vital.But as that narrative has shifted, I worry tremendously about throwing out all of the good things that have come with innovation in our rush to prevent any possible downsides. I'm glad that there's some level of reckoning happening, and people are proactively trying to think through the impact (both good and bad) of what they're creating these days. But, I worry that the narrative has shifted so far that in order to prevent "bad" we're going to end up tossing out much of the good that is set to come as well.I'm not quite 50 years old yet, but the amount of technological change and innovation in my lifetime has been amazing -- and I'd argue that the vast majority of it has been good. It has opened up new worlds. It has enabled new ways to communicate. It has brought knowledge and information to far flung corners of the globe. It has enabled people all over the world to have an impact. And it continues to change as well.Watching the Mother of All Demos once again lets us wonder about what will happen in the next 50 years. And it gives us a chance to appreciate all that has happened (and has been allowed to happen) over the past 50 years. Engelbart didn't lock up his ideas. He didn't block others from using them. There aren't stories of nasty patent fights (even if he had a bunch of patents). He shared these ideas for the world to see, and the world took these ideas and ran with them, built on them, improved on them and created the amazing world we now live in. This should not be the end of the history of innovation, but a sign of what happens when people do allow for great innovation, and seek to make the impossible, possible.

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Cubs, Nationals Launch Another Trademark Opposition Over A 'W' Logo

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Back in 2015, we wrote about a really dumb trademark dispute between a financial services firm and two Major League Baseball teams, the Washington Nationals and Chicago Cubs, over the letter "W." This insanity went on for years, with the MLB teams claiming there would be some sort of customer confusion in the public between professional baseball teams and a company that provided money management.Well, in case you thought that this was insanity of the one-off variety, both baseball clubs are back at it with an opposition for the trademark of Starwood Hotels and Resorts, whose logo is, you guessed it, a "W."

At the end of November, the Nationals and Cubs filed an opposition with the Trademark Trial and Appeal Board against Starwood Hotels & Resorts Worldwide. The Nationals and Cubs are apparently upset with Starwood’s pending trademark application to register “W” in connection with “Entertainment services, namely, planning, conducting and hosting music festivals, concerts and performances by musical groups and individuals.”Starwood claims to have started using “W” in connection with the aforementioned services as early as January 2005. The Nationals and Cubs could care less. They say that if Starwood gets its wish of registration, then Starwood will be given permission to confuse people into thinking that its services are in some way approved, endorsed or sponsored by the Nationals and/or Cubs.
This is the type of situation that calls for people to recognize the subtle differences and to keep their eye on the ball for trademark law, which is customer confusion. Yes, all three trademarks in question are versions of the letter "W." Yes, all three entities in question are in some segment of the entertainment industry, two being baseball teams and the third wanting to use its trademark for music concerts and performances. That, however, doesn't equate to Starwood's use somehow resulting in public confusion. Just to be clear, this is one of the many iterations of hotel logo we're talking about.
Really makes you think of the Cubs and/or Nationals, right? And, with just a brief moment of thought put into this, it becomes clear that fear of confusion makes no sense. A member of the public is going to go to a Starwood property to see a concert, see the "W" logo, and... what? Think the Cubs are affiliated with the concert? Or maybe the Nationals? Both? These baseball teams are somehow putting on concerts at Starwood properties?Fortunately, the general consensus appears to be that the MLB teams aren't going to prevail.
This seems like a stretch of a case for the Washington Nationals and Chicago Cubs, since Starwood is very widely known for its “W” brand of hotels and no reasonable person is confusing said hotel brand with the baseball clubs. Further, Starwood already owns trademark registrations for the “W” brand, including one in relation to providing hotel services, food and beverage and bar and cocktail lounge services. Unless the Cubs and Nationals are also going to attempt invalidating those registrations, this new opposition seems half-hearted and destined to fail.
So, strike two?

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Nintendo Attempts To Bottle The Leak Genie With Copyright Strikes

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A cursory review of our posts on Nintendo will reveal a company all too willing to wield intellectual property purely as a way to combat anything it doesn't like. The gaming giant jealously protects its IP, sure, but it also deploys its lawyers for such purposes as scaring the shit out of ROM sites, silencing YouTubers, shutting down fan-games from its biggest fans, and holding its consoles hostage unless customers agree to updated EULAs. Outside of Nintendo, many groups have tried to use copyright laws and the DMCA to combat leaks about content, or the content itself. This is rarely a good idea, what with the opportunity to use such leaks as free promotional material being an option instead.Well, as you may have heard, Nintendo suffered its own high-profile leak recently, with the forthcoming Super Smash Bros. Ultimate finding its way onto the internet before the game has even been released. As you would expect, Nintendo got its lawyers busy firing off DMCA notices for all kinds of sites that were hosting the actual game that leaked. It also, however, decided to issue copyright strikes on YouTubers who showed any of the games content.

The YouTuber named Crunchii has been uploading new remixes from Super Smash Bros. Ultimate to his channel over the past few days, which has drawn the ire of Nintendo. Crunchii's channel has been hit with copyright strikes from Nintendo of America, which has caused him to be locked out of his account and will result in its termination over the next few weeks.There is also a YouTuber named Dystifyzer, who also posted songs from Super Smash Bros. Ultimate's soundtrack. He too has been hit with numerous copyright strikes from Nintendo and is expecting his YouTube channel to be gone by next week.
This is stupid on so, so many levels. First, combating leaks with copyright notices rarely works at all, never mind well. Once the bell has been rung on the internet, it's nearly impossible to fully unring it. On top of that, going after YouTubers that are simply showing off the leaked product really only makes a ton of sense if you don't have a ton of confidence in the quality of that product. If you believe the product is awesome, you should want it shown off, even prior to release. Hell, maybe especially just prior to release, as a way to hype the game even further and push more sales.It's worth noting both that pretty much everyone showing off this leaked content was expecting Nintendo to freak out over it, and that the leaked content itself isn't terribly compelling.
The sad thing is that the leaked content from Super Smash Bros. Ultimate hasn't been all that exciting – it's mostly new music tracks and some new facets of the World of Light mode. There haven't been any secret unannounced characters hiding in the code of the game that Sakurai was hoping to spring on the fans.The reason why the World of Light mode doesn't have as many cutscenes as the Subspace Emissary mode is due to how disappointed Sakurai was when all of the lovingly crafted FMV sequences were quickly uploaded to the Internet. The Super Smash Bros. Ultimate leak proves that he was right to reveal everything beforehand, as any secrets would have been spoiled just two weeks before the game was released.
Making it all the more head-scratching that Nintendo is going to these lengths to combat the showing of the leaked content. But, hey, Nintendo is gonna Nintendo, I suppose.

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Some EU Nations Still Haven't Implemented The 2013 Marrakesh Treaty For The Blind

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The annals of copyright are littered with acts of extraordinary stupidity and selfishness on the part of the publishers, recording industry and film studios. But few can match the refusal by the publishing industry to make it easier for the blind to gain access to reading material that would otherwise be blocked by copyright laws. Indeed, the fact that it took so long for what came to be known as the Marrakesh Treaty to be adopted is a shameful testimony to the publishing industry's belief that copyright maximalism is more important than the rights of the visually impaired. As James Love, Director of Knowledge Ecology International (KEI), wrote in 2013, when the treaty was finally adopted:

It difficult to comprehend why this treaty generated so much opposition from publishers and patent holders, and why it took five years to achieve this result. As we celebrate and savor this moment, we should thank all of those who resisted the constant calls to lower expectations and accept an outcome far less important than what was achieved today.
Even once the treaty was agreed, the publishing industry continued to fight against making it easier for the visually impaired to enjoy better access to books. In 2016, Techdirt reported that the Association of American Publishers was still lobbying to water down the US ratification package. Fortunately, as an international treaty, the Marrakesh Treaty came into force around the world anyway, despite the US foot-dragging.Thanks to heavy lobbying by the region's publishers, the EU has been just as bad. It only formally ratified the Marrakesh Treaty in October of this year. As an article on the IPKat blog explains, the EU has the authority to sign and ratify treaties on behalf of the EU Member States, but it then requires the treaty to be implemented in national law:
In this case, the EU asked that national legislators reform their domestic copyright law by transposing the 2017/1564 Directive of 13 September 2017. The Directive requires that all necessary national measures be implemented by 12 October 2018. Not all member states complied by this deadline, whereby the EU Commission introduced infringement procedures against them for non-compliance. The list of the non-compliant countries is as follows:Belgium, Cyprus, Czech Republic, Germany, Estonia, Greece, Finland, France, Italy, Lithuania, Luxembourg, Latvia, Poland, Portugal, Romania, Slovenia, UK
The IPKat post points out that some of the countries listed there, such as the UK and France, have in fact introduced exceptions to copyright to enable the making of accessible copies to the visually impaired. It's still a bit of mystery why they are on the list:
At the moment, the Commission has not published details regarding the claimed non-compliance by the countries listed. We cannot assume that the non-compliance proceedings were launched because the countries failed to introduce the exceptions in full, because countries can also be sanctioned if the scope of the exception implemented is too broad, so much so that it is disproportionately harmful to the interest of rightsholders. So we will have to wait and see what part of the implementation was deemed not up to scratch by the Commission.
As that indicates, it's possible that some of the countries mentioned are being criticized for non-compliance because they were too generous to the visually impaired. If it turns out that industry lobbyists are behind this, it would be yet another astonishing demonstration of selfishness from publishers whose behavior in connection with the Marrakesh Treaty has been nothing short of disgusting.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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New York Court Tells CBP Agent He's Not Allowed To Pretend He's A Traffic Cop

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In a short decision, the Supreme Court of the State of New York reminds federal agents what they can and can't do while operating under the color of law. In this case (via The Newspaper) a CBP officer, who was supposed to be keeping an eye on the ultra-dangerous Canadians, decided he wanted to be a traffic cop instead.

Spotting a driver "engaging in dangerous maneuvers," the CBP agent (who is unnamed in the decision) decided to pursue the vehicle. He called the Buffalo (New York) Police Department to relay his observations. Deciding it would take too long for Buffalo PD officers to respond -- and supposedly concerned about the danger posed by the driver -- the CBP agent activated the lights on his vehicle and pulled the driver over.

The CBP agent did not approach the driver until a Buffalo police officer arrived -- not out of concern for the Constitution, but rather for his own personal safety. The CBP agent left after more police officers arrived. A gun was discovered during the stop and the driver was charged under New York law with illegal possession of a firearm.

The driver moved to suppress the evidence, arguing the stop itself was unlawful. The court found the CBP agent had the "powers of a peace officer," a fact that's relevant to its final determination. As such, the CBP agent can do certain things related to customs/border protection, but pulling drivers over for traffic violations isn't one of them. From the decision [PDF]:

In concluding that the agent unlawfully stopped the vehicle, the court determined that the agent had the powers of a peace officer, but that the traffic stop could not be justified on that basis because the agent was not acting pursuant to his special duties or within his geographical area of employment.

The state argued the CBP agent was not acting as a peace officer when he performed the stop. It claimed the agent was nothing more than a concerned citizen performing an ultra-rare "citizen's arrest." LOL, says the court. Even if the court had found that a CBP agent is not a peace officer, the agent's actions undercut any arguments construing this as a citizen's arrest.

Even assuming, arguendo, that the agent, as a marine interdiction agent with the U.S. Customs and Border Protection Air and Marine Operations and a deputized task force officer with the Niagara County Sheriff’s Office, is not a peace officer and does not possess the powers thereof [...] we conclude that the court properly determined that the agent did not effect a valid citizen’s arrest.

The agent, while contemporaneously reporting the incident to the police over the telephone and requesting the presence of a police unit, activated red and blue emergency lights in the grille of his truck and a light bar inside the windshield for the purpose of stopping the vehicle. A private person, however, is not authorized to display such emergency lights from his or her private vehicle (see Vehicle and Traffic Law § 375 [41]; People v Hesselink, 76 Misc 2d 418, 418-419 [Town of Brighton Just Ct 1973]). Moreover, a private person may not falsely express by words or actions that he or she is acting with approval or authority of a public agency or department with the intent to induce another to submit to such pretended official authority or to otherwise cause another to act in reliance upon that pretense (see Penal Law § 190.25 [3]; see generally People v LaFontaine, 235 AD2d 93, 106 [1st Dept 1997, Tom, J., dissenting], revd on other grounds 92 NY2d 470 [1998]).

Thus, the agent was not lawfully acting merely as a private person effectuating a citizen’s arrest when he activated emergency lights that were affixed to his truck by virtue of his position in law enforcement. Additionally, the agent was not acting merely as a private person when he approached the seized vehicle as backup in cooperation with the officer for safety purposes.

The state also tried to argue that even if the seizure was not lawful under New York law, it was not unconstitutional. The court says "you had us at 'illegal seizure.'"

Even if a violation of the citizen’s arrest statute is not necessarily a violation of a constitutional right, we conclude that adherence to the requirements of the statute implicates the constitutional right to be free from unreasonable searches and seizures…

And away goes the evidence and the conviction. The lesson is: if you're a federal agent charged with keeping an eye on the border, do that. If you feel the need to act like a concerned citizen, try to do it without turning on your emergency lights and pulling them over. Otherwise, all you've done is waste a bunch of people's time.

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Monster Energy Loses Trademark Opposition Against UK Drink Company, But May Have Bullied It To Death Anyway

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A review of our stories about Monster Energy's trademark bullying ways might leave some scratching their heads as to why the company continues along these lines at all. After all, any review of those stories will leave one with the impression that Monster Energy seems to lose these trademark oppositions at nearly every turn. So, if that's the case, why continue with this losing streak?Well, as we've explained previously, winning an opposition or lawsuit is only one of the real goals in trademark bullying. Other goals include making the opposition so painful and expensive so as to either push the victim into unreasonable changes or to simply drain the victim of cash and assets as they attempt to defend themselves. Likewise, such bullying serves as public notice to anyone else that might consider similar actions that would draw the bully's ire, chilling their willingness to do so. In this, Monster Energy's trademark bullying is often quite successful.An example of this can be found in UK beverage company Thirsty Beasts, which recently won its case against Monster Energy's opposition to its trademark for the second time on appeal.

Dan Smith, from Newbury, created healthy drinks company Thirsty Beasts in 2018, and the US firm filed a legal challenge against him.It claimed customers would confuse both Mr Smith's slogan - "Rehab the beast" - with its "Unleash the beast" line. The case, which was dismissed, cost Mr Smith more than £30,000 in legal fees. He said he and his wife had ploughed every penny they had into launching the business. After registering his first trademark in the UK in 2016, Mr Smith then filed the Thirsty Beasts logo. Billion-dollar company Monster Energy objected to his application, claiming Mr Smith's slogan was too similar to its own.The UK Trademark Office ruled in favour of Thirsty Beasts, but Monster Energy appealed the decision.
And Thirsty Beasts won that appeal. The Trademark Office once again reviewed the material provided by the two companies, including the branding, company names, and logos, and rightly decided that there was no customer confusion to be had here. You can read the entire timeline of events for yourself on the company's website, but ultimately this story has a happy ending, right?Well, again, winning the opposition isn't the only, or perhaps even primary goal, of the trademark bully.
"Financially it has crippled the company," Mr Smith said. He added: "We had savings set aside to boost the product, to do the marketing, to get that one drink out. Now we've burnt all of that, that and more trying to win this. We are two years behind where we want to be."The entrepreneur now needs to raise £28,000 for a limited launch of the product in spring 2019.
Maybe the Smith family will be able to do that, maybe they won't. And that's the real harm of large corporate trademark bullies like Monster Energy. Even in losing, it might still ultimately win if its victim can't survive in business because of its bullying. And, again, Monster Energy can point to such an outcome should anybody else out there want to take similar innocuous actions.Trademark bullying works. And on more than one front.

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Tennessee Legislators Can't Stand Up To Cops; Keep Federal Loophole Open For Nashville Law Enforcement

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Earlier this year, the Tennessee legislature passed some very minimal asset forfeiture reforms. The bill, signed into law in May, does nothing more than require periodic reporting on use of forfeiture funds and the occasional audit.What it doesn't do is require convictions. It also doesn't close the federal loophole, which allows Tennessee law enforcement to bypass state laws if they feel they're too restrictive. Given that state law doesn't really do anything to curb forfeiture abuse, the federal adoption lifeline isn't used quite as often in Tennessee as it is by law enforcement agencies in others states with laws that are actually worth a damn.But local cops really really really want the federal loophole open. They've been applying pressure to Nashville legislators and it has had the expected effect. (h/t Daniel Horwitz)

Nashville on Tuesday renewed its participation in a controversial 1980s-era federal program that's allowed the police department to keep proceeds from seized assets taken from people suspected of crimes involving drugs.After spirited debate, the Metro Council voted 25-5 with two abstentions to renew Metro's participation in the "equitable sharing program" with the U.S. Department of Justice and federal Drug Enforcement Administration.
The loophole Nashville law enforcement barely needs will remain open. And it will remain open because… well, budgets are tight and we can't keep asking state taxpayers to make up the difference.
Councilwoman Jacobia Dowell, who also voted for renewing the agreement, said not renewing the program would leave a hole in the city's budget."I have zero confidence in this council body to find $150,000," Dowell said, noting the city's budget struggles this past year.
So, instead of all taxpayers, Councilwoman Dowell wants to have just a few taxpayers pitch in to help cops -- taxpayers who happen to have property law enforcement thinks they didn't acquire legally.Or not even taxpayers! Why even trouble those who reside in the state to give law enforcement some extra cash. Why not just take money from people leaving the state? That's the way Tennessee's "drug interdiction" teams work. According to law enforcement, they want to stop the flow of drugs into the state. That doesn't really explain their actions:
While drugs generally come from Mexico on the eastbound side of Interstate 40 and the drug money goes back on the westbound side, the investigation discovered police making 10 times as many stops on the so-called "money side."
Law enforcement doesn't seem to mind the drugs coming in, but it's certainly not going to let the cash head back out. Councilwoman Dowell thinks if cops can't lift money from drug dealers, they won't be able to buy the stuff they need to continue to allow drugs to flow into the state.What Dowell absolutely doesn't want to see is her poorest constituents asked to dig even deeper to keep the drug interdiction units in business.
She said [the budget shortfall] would end up coming from Nashville's "most distressed and the impoverished communities."
Bless her heart. Oh wait.
Although civil asset forfeiture affects people of every economic status and race, a growing array of studies indicates that low-income individuals and communities of color are hit hardest. The seizing of cash, vehicles, and homes from low-income individuals and people of color not only calls law enforcement practices into question, but also exacerbates the economic struggles that already plague those communities.
None of the rationale makes sense. The drug teams that don't actually catch drugs need money to keep doing the job they're not doing and they need to take it from someone since the state's not going to help them out. The people who are going to help them out are either people leaving the state or low-income residents.The problem is that when you say someone's going to have to come up with $150,000, someone will have to come up with it. And when that number increases -- and it will -- the shortfall comes directly from residents and other US citizens who have their belongings taken from them without even being accused of a crime.$150,000 is only the cut from federal sharing. That's Nashville law enforcement's manageable money habit. There's more to it than the federal slush fund. Nashville law enforcement has created a drug enforcement ecosystem that can't be sustained without the seizure of millions of dollars every year. Even prosecutors recognize the problem.
[Nashville County District Attorney Glenn] Funk stated that on his first day as Nashville’s District Attorney, he was told that $1.7 million to $2 million would be needed to be brought in through seizures in order to keep the drug task force in operation. He also expressed concern that individuals were indicted or subject to forfeiture proceedings who would not otherwise have been if civil asset forfeiture were not a “cash cow.” He stated that officers sometimes target people with high-value cars so they can forfeit them and put the cars into service. General Funk provided these as examples of problems that arise “when we don’t have legislative oversight over the funds and assets . . . that are being seized.”
If you want to start fixing forfeiture abuse, start with the federal loophole. Agencies will realize it's not impossible to live without this money. And from there, you can start cutting them off from the main supply by eliminating civil asset forfeiture altogether by adding a conviction requirement. But if you can't even make this small move, you're not serious about fixing the problem. That's Nashville's problem -- one that harms citizens while keeping law enforcement flush with funds they really didn't earn.

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Public Records Law Reforms Still Haven't Made Massachusetts Any Less Of A Hellhole For Records Requesters

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Nearly a third of the official guide to public records requests published by the state of Massachusetts is given over to exemptions. That should give records requesters some idea of what they're in for when tangling with the state's agencies.

The state has developed a reputation for being a public records black hole that sucks in requests but never spits anything back out. MuckRock has a detailed post about one agency -- the Medford Police Department -- that appears, for the most part, to simply ignore requests it doesn't feel like fulfilling.

MuckRock records show that the agency consistently fails to acknowledge and fulfill requests, sometimes for years and despite appeals to the Massachusetts Supervisor of Public Records. Its failure to comply with even the updated legislation highlights the shortcomings that remain in enforcement mechanisms for citizens entitled to government information.

This means the nonprofit is burning up man hours attempting to communicate with the MPD's brick wall.

The oldest pending request, dating back to April 2013, had 112 email follow-ups that were sent to an officer who, at some point since initial submission, had left the department; these were followed by 14 fax follow-up messages to a currently valid office fax number.

If there's an exemption that can be used, it will be used. Up until recently, the state had the worst public records laws in the nation. And it looks like they're still the worst. This has allowed a state agency to claim a 63-year-old murder case investigation was still ongoing, despite the lead suspect having died years ago. In another case, the State Police took $180 from a requester and then refused to hand over the records requested.

The recently instituted public records law reforms don't seem to be having much of an effect on state agency responsiveness. MuckRock is reporting law enforcement agencies continue to be the main offenders, upholding the proud police tradition of ignoring laws officers and officials don't like.

This leads to insane, if not illegal, responses to records requests. Todd Wallack of the Boston Globe requested a photo of an officer and detective employed by the Boston Police Department. It rejected his request citing public records exemption f, which claimed the staff photos were "investigatory materials." When Wallack challenged this determination, the BPD responded with ¯\_()_/¯.

BPD couldn’t explain exactly how this exemption applied to the records in question. And so, the Supervisor of Public Records ordered the Department to fulfill the request. But with a lack of enforcement options from the SPR, it is still to be determined if the Department will comply or not.

The Supervisor of Public Records is an especially useless position, but one that meshes well with the state government's antagonistic take on transparency. The SPR makes the initial call on disputed records requests, but cannot, as a matter of law, force an agency to turn over records if the SPR determines the government agency is in the wrong. All the SPR can do is kick it up to the Attorney General for another determination. This escalation is completely at the discretion of the SPR, who is required by law to escalate reports of non-compliance by state agencies.

In essence, state and local agencies are being told "wait til your dad gets home" when they lose appeals, but without any estimate on when dad will be home or if he's even interested in handling these issues whenever the hell he actually gets back.

Here's how the state suggests requesters deal with Massachusett's effed-up public records laws. This comes directly from Secretary of State spokesperson Debra O'Malley.

“Sometimes requesters opt to sue because they might be more successful and it’s faster,” said O’Malley.

I'm sure O'Malley means well and is probably accurately portraying the near-farcical situation. But the government shouldn't be pushing citizens into lawsuits over public records. The presumption is supposed to be openness, not schoolyard taunts of "make me." But that's where the state remains, even after public records reform: a drain on taxpayers both ways, whether screwing them out of records or paying legal fees with taxpayer funds at the end of the apparently inevitable lawsuits.

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Schlafly Family Loses Appeal To Block Schlafly Family Member's Brewery's Trademark Application

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As you will by now know, trademark bullying ticks me off. In particular, trademark bullying built on ideological grounds rather than any real concern over customer confusion gets my fur up. But when all of the above occurs against a brewery, makers of sweet, sweet beer? Well, that is a bridge too far.Which is why it is with great pleasure that I can inform you that the greater Schlafly family, famous for its matriarch and puritanical icon Phyllis Schlafly, has lost a trademark opposition against another family member's brewery. This all started when the now late Phyllis Schlafly and her son Bruce Schlafly opposed her nephew Tom Schlafly from trademarking the name of his beer, Schlafly Beer. The opposition itself made zero sense, since Phyllis and Bruce chiefly objected to having their surname associated with the beer, given that Phyllis' reputation was particularly well cultivated with the Mormon and Baptist populations that don't look kindly on alcohol, generally. Successfully opposing the mark, however, wouldn't keep Tom from keeping that name for his beer. Instead, it simply meant that essentially everyone could call their beer Schlafly Beer, compounding the problem. Regardless, the Trademark Office took one look at the opposition and tossed it on obvious grounds, namely that Schlafly is Tom's surname too, and nobody is necessarily going to see Schlafly beer and suddenly think Phyllis took to boozing late in life.Well, the Schlafly's appealed that decision, even after Phyllis passed away, and now the Federal Circuit Court of Appeals has unanimously ruled in favor of the brewery's right to produce Schlafly Beer.

In a 3-0 decision, the U.S. Federal Circuit Court of Appeals ruled in favor of Saint Louis Brewery LLC, which was co-founded by Schlafly’s nephew Thomas Schlafly, and had applied in 2011 to trademark the Schlafly name.  Circuit Judge Pauline Newman said the name had acquired a “secondary meaning” and “distinctiveness” through sales of Schlafly-branded beer, and that surnames could be trademarked when that occurred. The brewery began selling beer with the Schlafly logo in 1991, and sales had reached 74.8 million cans, bottles and draft servings between 2009 and 2014.
And that should be that for a trademark dispute that really, really never should have made it this far. Trademark law is built on the test of consumer confusion, and opposing a mark for a product already this widely distributed, wherein the person applying for the mark has a totally reasonable claim to the mark -- it's his surname -- is, on its face, not an opposition that cares about confusion. Instead, it was clear from the outset that this was some combination of family strife mixed with puritanical ideology attempting to use trademark law as a vehicle towards an end. The court rightly saw right through this and upheld the dismissal of the opposition.
“This is a huge relief,” Thomas Schlafly, who is also the brewery’s chairman, said in an interview. “It had never occurred to me that my relatives, who had no connection with beer, would oppose a routine trademark.”
Sure, because that opposition was unreasonable. Still, this story happens to end well. I can look forward to toasting the memory of Phyllis Schlafly with an ice-cold can of Schlafly beer.

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This Week In Techdirt History: We Finally Start Testing Responsive Design!

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Try out Techdirt's new responsive design on our beta site »It hasn't escaped our notice that the design of Techdirt is a little... behind the times. There was a spate of high-profile redesigns a few years ago, with many blogs transitioning to a more "magazine"-esque style, and although they looked great, it wasn't always the most useful choice for readers — and that's part of why we didn't end up going along with the trend. We've heard from various readers over the years that they appreciate our adherence to a traditional blog format with a chronological list of posts, and the fact that we don't force the use of photos and imagery when they don't actually add anything to the content. We're also a very small and very busy team, so when we tinker with the site, we try to focus on adding streamlined features that are immediately useful, like the ability to expand posts on the front page instead of clicking through, or to hide all ads on Techdirt. We've also tweaked the appearance of the site in small ways from time to time, and in general we prefer this incremental approach over making a splash with a big redesign.That being said, there's something very important that we've been neglecting for far too long: how Techdirt works on mobile devices. Our "lite" format is much too basic — a holdover from an earlier era of the mobile web — while our default site is extremely inconvenient on a small screen. And so today we're happy to announce that we're almost ready to launch a new responsive framework for Techdirt, enabling the default version of the site to perform well on devices of all shapes and sizes, and we'd like your help with the beta test. We built this framework ourselves using fairly basic responsive CSS, since so many pre-packaged solutions are overly complex and/or unnecessarily reliant on JavaScript.Click this link to switch to Techdirt's beta site and try out our new responsive design! Your preference will be saved in a cookie, and you can go back to the regular version of the site at any time via your user preferences or the prominent "Exit Beta" link in the header of every page.You'll notice a few small tweaks to the layout of our posts, but the main change is that every page should now respond nicely to any viewport size and organize itself to be easily readable and navigable. Please give it a try on your phones and tablets (or by resizing your browser window) and let us know how your experience goes. If you encounter any bugs, or have any general suggestions or comments, get in touch using our contact form or by reaching out to us on Twitter (or here in the comments!)If all goes well, we hope to roll this change out to the site very soon, and we've got a few more adjustments (plus a general tidying-up of the visual design) in the pipeline.

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Supreme Court Appears Inclined To Apply The Eighth Amendment To Civil Asset Forfeiture

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The Supreme Court heard oral arguments recently in a case that may result in some involuntary reforms to state civil asset forfeiture laws. The case involves Tyson Timbs, an Indiana resident who had his $42,000 Land Rover seized by law enforcement after selling $260 worth of heroin to undercover cops.

Despite securing a conviction, law enforcement chose to forfeit Timbs' vehicle in civil court. This may have been to keep Timbs from challenging the seizure as excessive, given the crime he was charged with maxxed out at a $10,000 fine. This is how Timbs is challenging this forfeiture, however. That's how this case has ended up in the top court in the land.

A lower court in Indiana found in his favor, finding the seizure to be a violation of Timbs' Eighth Amendment protections against excessive fines. The state's top court overturned this ruling, prompting the appeal to the US Supreme Court. The state argues the Eighth Amendment's protections do not apply to civil asset forfeiture. This is a curious position, because it's basically stating Indiana's government gets to pick and choose what guaranteed rights its residents have access to.

From the oral arguments [PDF], it sounds like the court is going to rule in Timbs' favor and find that these Eighth Amendment protections apply to state-level forfeitures -- civil or criminal. The state's Solicitor General, Thomas Fisher, failed to impress the court at almost every turn.

It all starts with Justice Gorsuch trying to set the ground level for discussion: that it's undisputed fact the Eighth Amendment's excessive fines clause applies in Indiana.

JUSTICE GORSUCH: General, before we get to the in rem argument and its application to this case, can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states. Whether this particular fine qualifies because it's an in rem forfeiture, another question.

But can we at least get the -- the theoretical question off the table, whether you want to do it through the Due Process Clause and look at history and tradition, you know, gosh, excessive fines, guarantees against them go back to Magna Carta and 1225, the English Bill of Rights, the Virginia Declaration of Rights, pretty deep history, or whether one wants to look at privileges and immunities you might come to the same conclusion. Can we at least -- can we at least agree on that?

MR. FISHER: I have two responses to that. First -­

JUSTICE GORSUCH: Well, I -- I think -- I think a "yes" or "no" would probably be a good starting place.

As Fisher tried to argue around that by claiming it really should only apply to cases of criminal forfeiture ("in personam" [against a person] rather than "in rem" [against property] forfeitures), Gorsuch again shut him down, showing a bit of exasperation while doing so.

JUSTICE GORSUCH: Well, whatever the Excessive Fine Clause guarantees, we can argue, again, about its scope and in rem and in personam, but whatever it, in fact, is, it applies against the states, right?MR. FISHER: Well, again, that depends.JUSTICE GORSUCH: I mean, most -- most of the incorporation cases took place in like the 1940s.MR. FISHER: Right.JUSTICE GORSUCH: And here we are in 2018 -­

MR. FISHER: Right.JUSTICE GORSUCH: -- still litigating incorporation of the Bill of Rights. Really? Come on, General.

This was followed by new installation Brett Kavanaugh trying to get the state's lawyer to admit the state had adopted the Eighth Amendment and its clauses -- which includes protections against excessive fines, no matter what form they take.

The state's lawyer believes the Court should leave the state court ruling alone, and allow Indiana to go on claiming the Eighth Amendment doesn't apply to civil forfeiture. To do so, the state basically argues people have rights but their possessions don't. This led to Justice Ginsburg reminding the government's lawyer that property belongs to people who have rights.

So, whether you label it in rem or in personam, let's remember that it's -- things don't have rights or obligations in and of themselves. It's people that have rights or obligations with respect to things.

The state's insistence that the excessive fines clause does not apply to civil asset forfeiture allows Justice Breyer to strike at the heart of this form of forfeiture and the abuse it encourages because it's so often unchecked by local laws.

JUSTICE BREYER: Well, in your view, an in rem civil forfeiture is not an excessive fine, is that right?

MR. FISHER: Yes, that is -- that is true.

JUSTICE BREYER: So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy? (Laughter.)

MR. FISHER: There -- no, there is no -- there is no excessive fines issue there. I -- what I will say and what I think is important to -- to remember is that there is a constitutional limit, which is the proof of instrumentality, the need to prove nexus.

JUSTICE BREYER: That isn't a problem because it was the Bugatti in which he was speeding. (Laughter.)

MR. FISHER: Right.

JUSTICE BREYER: So -- so there is all the nexus.

MR. FISHER: Historically -­

JUSTICE BREYER: Now I just wonder, what -- what is it? What is it? Is that just permissible under the Constitution?

MR. FISHER: To forfeit the Bugatti for speeding?

JUSTICE BREYER: Yeah, and, by the way, it was only five miles an hour -­

MR. FISHER: Yeah.

JUSTICE BREYER: -- above the speed limit.

MR. FISHER: Well, you know, the answer is yes. And I would call your attention to the -­

JUSTICE BREYER: Is it yes?

MR. FISHER: Yes, it's forfeitable.

Not a single justice who spoke was on the state's side. If the ruling comes down in favor of Timbs, it still may be a narrow ruling, which will mute its impact. If all SCOTUS wants to do is say the Eighth Amendment excessive fines clause applies in Indiana, but not specifically to civil forfeitures, the state can continue with forfeiture business as usual. But if it applies that clause to civil forfeiture, the state is going to have a hard time justifying taking expensive stuff from people they've charged with minimal violations or haven't charged at all.

The biggest effect will be felt by those who've had their property seized by the government via this process. They'll actually have something far better than the minimal protections afforded them. As it stands now in many states, trying to reclaim property is an expensive, labyrinthine process that heavily favors the government. Being able to challenge a seizure on Constitutional grounds means the government has to prove far more than the property could imaginably be tied to criminal activity. It would also have to demonstrate the punishment doesn't outweigh the crime.

The potential downside is this: prosecutors may stack charges until they roughly equal the value of whatever's been seized. This could result in a lot of defendants having the book thrown at them while the state processes their property through civil proceedings.

Even with this downside, it's heartening to see the nation's highest court recognizes the perverse incentives of civil forfeiture and the damage it does to citizens and their inherent rights. Hopefully, this will make the court more receptive of future forfeiture cases where broader precedent may be set that will stem the flow of abuse resulting from this highly-questionable law enforcement practice.

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Stupid Patent Of The Month: A Patent On Using Mathematical Proofs

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In some fields, software bugs are more than the proverbial pain in the neck. When software has to ensure that an airplane lands safely, or that a pacemaker keeps operating, there's no room for error.The idea that mathematical proofs could be used to prove that software is error-free has been around since the 1970s, and is known as "formal verification." But like a lot of technologies that some visionaries saw coming, it took time to develop. In recent years, computing power has become cheap enough for formal verification to become practical for more software applications.Unfortunately, last month, the field had a monkey wrench thrown into it, in the form of U.S. Patent No. 10,109,010, which the patent office awarded to a U.K.-based company called Aesthetic Integration Ltd.Claim 1 of the patent describes creating mathematical "axioms"formal mathematical statementsthat describe a computerized trading forum. The patented method then describes analyzing, with a "computer assessment system the mathematical axioms that describe the operation of the trading forum." In other words, the patent describes using formal proofs to check for bugs in a "computerized trading forum." It's formal verificationjust applied to the financial services industry.Of course, Aesthetic Integration didn't invent formal verification, nor did the company invent the idea of software powering a "trading forum." The company has apparently created software that utilizes formal verification in the financial services space, and that software might be perfectly good. But the Patent Office has effectively allowed the company to patent a whole sector of formal verification.To be fair, the '010 patent appears to reflect some advanced and difficult programming by Aesthetic Integration. But that does not mean it should be patentable. Consider the following analogy: there are no 50 story buildings in Cincinnati. Building a 50 story building in Cincinnati, and making it compliant with seismic safety standards, would be hard work. It would take many engineers a great deal of effort to apply existing techniques to complete the project. You could write a lengthy paper describing that process, which might include lots of complex charts and diagrams. Still, that does not mean a company that completes such a project should then get a monopoly on tall buildings in Cincinnati.Aesthetic Integration claims to be the first to apply formal verification to trading software. If that's true, the company may get a well-earned competitive advantage by being the first to this market. But it should not get a 20 year monopoly simply for applying programming techniques that the company itself has described as part of a "mature and effective field of science."Ultimately, the '010 patent reflects a broader problem with Patent Office's failure to apply a meaningful obviousness standard to software patent applications. We have explained before that the Patent Office is all too willing to hand out patents for using known techniques in a particular field. Flow charts and whirligigs can make a concept look new when it isn'tespecially when a patent owner fills its application with obscure language and "patentese." The Federal Circuit has also encouraged this through its hyper-formalistic approach to obviousness. The end result is an arms race where people rush to patent routine software development.As we've said before, patents are simply a bad fit for software. The Patent Office should stop giving out patents on formal verification, or other well-known software processes.Republished from the EFF's Stupid Patent of the Month series.

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