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May 2019
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Bill Introduced To Create A Warrant Requirement For Border Device Searches

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With a great deal of luck, we may finally get a bit more respect for Constitutional rights at the border. The Supreme Court may have ruled that searches of cellphones require warrants, but that ruling doesn't apply within 100 miles of any US border (that includes international airports). Warrantless device searches happen regularly and with increasing frequency.So far, courts have been hesitant to push back against the government's assertions that border security is more important than the rights guaranteed by the Constitution. And if the courts do feel something should be done to protect US citizens and foreign visitors, they feel it should be done by Congress, not by them.So, it's good to see Congress may actually do something about this. Jack Corrigan of Nextgov has the details:

Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., on Wednesday introduced legislation that would increase digital privacy protections for U.S. residents crossing the border and limit the situations in which agents could legally seize their devices. If enacted, the Protecting Data at the Border Act would curb law enforcement’s extensive authority over electronic information at the border.Rep. Ted Lieu, D-Calif., introduced a companion bill in the House.
The bill [PDF] would institute a warrant requirement for border device searches, which is a really weird sentence to type considering the Supreme Court of the United States of America instituted a warrant requirement for device searches five years ago. But there it is: an attempt to codify a SCOTUS decision so it's respected by US government agencies.It also prevents border agents from denying entry to anyone refusing to disclose passwords or unlock devices during screening. It also blocks them from detaining anyone for more than four hours in hopes of turning denials into consensual searches.Unfortunately, there are some loopholes. And one of those is sizable. "Emergency situations" allow border agents to bypass the Constitutional niceties. One of those is an old -- and super-vague -- favorite:
[c]onspiratorial activities threatening the national security interest of the United States
That's the catch-22. The law can't pass without this exception and it's this exception that will be abused the most. But the institution of a warrant requirement will force the government to put a little more effort into its "national security" hand-waving if it hopes to use evidence pulled from devices in court.Also important is the institution of documentation procedures for consent searches. It won't be enough for officers to claim detainees volunteered passwords or otherwise agreed to have their devices searched. They'll need to have the whole thing documented and the form signed by the detainee. Every device search must be documented as well, whether or not a forensic search was performed.It's a good bill, national security exception notwithstanding. But it's being lobbed into an unwelcoming political arena. President Trump is still demanding a wall and has declared a national emergency simply because he wants to discourage immigrants from coming to this country. Border security is national security, according to this administration, even when there's little evidence showing immigrants are more likely to commit acts of terrorism, never mind regular crime. This administration and those backing it (and they are many) are more than happy to suspend the Bill of Rights at the border for as long as they're in power. That's the reality of the situation.While this bill would bring border agencies into alignment with Supreme Court precedent, it's highly unlikely this won't be rejected by the President if it even manages to make it that far.

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posted at: 12:00am on 31-May-2019
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Libel Lawsuit Has A Bunch Of Crazy Ideas About How Section 230 Immunity Works

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If you want a masterclass in misunderstanding pretty much everything about Section 230 of the CDA, this libel lawsuit -- filed by a massage business owner against a Redditor, Reddit, and a few board members -- will fill this really weird hole in your life. I won't judge. But I will ask questions. Judgmental questions. (h/t Eric Goldman)Also, it's a RICO lawsuit.There's a lot to unpack here, so we'll start at the top. The plaintiffs claim someone known as "DiggDejected" on Reddit libeled their massage business by claiming… well, the claims aren't exactly clear. The lawsuit claims the disputed content is "libel per-se," but never actually details the content of the disputed posts other than say one of them suggested the its spa parties for kids "gave kids diseases."The complaint [PDF] complains Reddit has never removed the posts the plaintiffs claim are "illegal" defamation. It also asks the court to ignore the fact that the statute of limitations has run out on some of the content they're suing about. It's that kind of a lawsuit.The RICO allegations are as bad as you'd expect. Possibly even worse. First, the plaintiffs claim the Redditor, Reddit board members, and the site itself are conspiring to keep this libelous content on the site. That's only part of it, though. There's also a conspiracy theory (in the Alex Jones way, not the "actionable tort" way) presented that says the members of Reddit's board being sued are also involved with Y Combinator, the famous startup accelerator.Apparently, Y Combinator funded a mobile on-demand startup called "UnwindMe." The plaintiffs claim this company is in direct competition with their company, which also provides on-call massages. This startup is now dead -- the one directly funded by Y Combindator. It was then acquired by Soothe, Inc., another competitor not linked with the defendants, but the lawsuit imagines whatever compensation they obtained from the sale of UnwindMe motivated Reddit's refusal to take down derogatory posts about the plaintiffs and their massage company.After delivering several paragraphs detailing this highly-attenuated conspiracy theory (and doing irreversible damage to readers' brain cells and patience), the plaintiffs arrive at this conclusion.

The above statements establish that there was a financial and racketeering motive for the maintenance of this post. This could have easily been at the request of Justin Bassett, Alexis Ohanian, or Samuel Altman, or anyone else who was invested in Soothe, in order to prevent our success as a major competing brand to Soothe, Inc. It is quite possible and, in fact, likely, that the other founders of Reddit are also invested in Soothe, Inc., with the potential for racketeering profits hanging in the balance of the success or failure of our competing company.
So... that's the RICO end of it, summarized but probably not clarified. I'm sorry. I tried.Here's the Section 230 end of it, which has to be read to be believed. And by "believed," I mean proof exists that people are failing to comprehend Section 230 immunity in new and exciting ways.The first way is to claim that Section 230 immunity for social media platforms shouldn't exist because it prevents plaintiffs from suing platforms for content they didn't create. Seriously.
The purpose of our court system is providing a lawful forum for the redress of grievances. Section 230 of the Communications Decency Act should not, then, be read, in such a manner, that a libeled, or otherwise illegally and unlawfully violated, person, persons, business, or service provided by a business, cannot find suitable legal remedy for provable crimes of libel, and others, with no means of having such harmful statements deleted, retracted, or have anyone whatsoever, held liable for various damages arising from violations of various rules and laws.
Just to be clear: at the federal level, libel is not a crime. Just to be even clearer, Section 230 immunity only prevents plaintiffs like these from suing Reddit over content created by third party users. It does not prevent them from suing the person who posted it. All these plaintiffs have to do is remove every defendant but the one that actually posted the supposed libel and all these "problems" with Section 230 will simply melt away.But no. There's more wrong to be had. The plaintiffs are right the CDA was enacted to help protect children from online pornography. But everything else is just wrong. The lawsuit actually claims FOSTA and its Section 230 collateral damage was not just instrumental, but essential, to the shutdown and prosecution of Backpage and its owners.
In addition, a more recent law has removed many of the protections afforded by Section 230, in giving specific redresses to persons who have been violated by certain forum type websites. In fact, BackPage.com was literally shut down (actually seized by the federal government "as part of an enforcement action by the [FBI], the [USPIS], and the [IRS] Criminal Investigation Division", without warning, upon passage of the FOSTA act) over third party posting of content to their site on the basis of the newly enacted FOSTA Bill. This bill removes the legal shield for websites that post content created by others, and enables states and victims to obtain redress and recover damages.This law, specifically, caused the shutdown and seizure of the website backpage.com, which was a known advertising forum for prostitution, human trafficking, and sex slavery, while hiding behind the shield of Section 230. Just as in that instance, the laws should be interpreted as they were designed to be interpreted, and, as stated before, should not allow perpetrators of real crimes to hide behind laws that were never meant to protect them from prosecution for true criminal acts.
This is wrong. Just completely wrong.The other stuff in there, I assume, alludes to the RICO, but it's impossible to tell since the plaintiffs fervently believe libel is also a criminal act -- something evidenced by all the FBI raids targeting suspected defamers.Building on the premise that the CDA was meant to protect children, the plaintiffs say Section 230 immunity should be ignored by the court and replaced with some sort of Section 230 protection for the plaintiffs. I can't try to understand this for you. You're on your own.
PROTECTION UNDER SECTION 230 FOR PLANTIFFS, RATHER THAN DEFENDANTS. A Child who has gone to our parties, or a classmate, or friend, of a kid who has attended our parties, may see the post and (wrongly ) believe they, themselves, or their fnend who attended, has contracted a disease. Such is not beyond reasonable,as we host Kids Galleries that the children visit, and we've had thousands of attendees. Such would clearly be traumatic and stress-producing, possibly causing social stigma, and is clearly within purview of the main intent of Section 230. So rather than Defendants being protected. Plaintiffs assert that we, Donn Albano, Heather Miller, Mountainside Diversified,and our brands. Mobile kids Spa Parties and Mountainside Diversified, and websites NJmassages.com, and NJmassage.info, are in fact, the protected parties in this instance.
I guess I can get behind this. I agree the plaintiffs shouldn't be sued for derogatory content posted by Redditors.The lawsuit ends on a hopeful note though. Well, it actually goes on for a few more paragraphs, including demands for $1 million, immediate and permanent removal of "hateful and harassing statements," and for the judge to order this removal even if it finds Section 230 immunizes Reddit against this lawsuit. But the hopeful note is exactly that: the airing of a wishlist, following the airing of grievances.
It is my hope that this court will understand that there is a lot more going on in this particular case than simply a case of a third party posting a random statement on Reddit, and that this particular case actually seems to involve collusion and conspiracy, in violation of multiple federal laws and statutes, and that even smaller businesses should be protected from predatory companies, whether they are social media sites or other types of sites. Section 230 should not be broadly interpreted in this instance, as it does not apply when conspiracy, as demonstrated herein, has occurred. The CDA was not drafted to serve as a blanket immunity against redress, or a nullification of legal due process.
Ok, then. The "understand" part of this wish is going to need a hell of a lot of hope. This lawsuit, like many other lawsuits (pretty much all other lawsuits, actually) is simply asking for the court to find in favor of its legal theories and punish/reward appropriately. That's fine. But you can't win if you're so completely wrong about the law, as these plaintiffs are.

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posted at: 12:00am on 31-May-2019
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Gamoshi - the next generation of programmatic advertising

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So you've heard about Plato's cave allegory – a theory put forward by Plato, concerning humanperception. Plato claimed that knowledge gained through the senses is no more than opinion,in the cave allegory Plato distinguishes between people who mistake sensory knowledge for thetruth and people who really do see the truth. Simply said: You can't know […]The post Gamoshi – the next generation of programmatic advertising appeared first on Adotas.

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posted at: 12:00am on 30-May-2019
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Texas Cities Rush To Extend Camera Contracts Ahead Of The State's Red Light Camera Bans

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Twelve years after first broaching the subject, the Texas legislature has finally killed red light cameras. This follows years of fraud, corruption, and contractual language negating prior ban attempts. The Newspaper reports on the good news, which unfortunately comes with some bad news. The supermajority vote means the bill can't be vetoed by the governor, but some cities have managed to grandfather in their resident-screwing cameras.

The majority of red light camera programs in the Lone Star State will be shut down under legislation that cleared the Texas legislature on Friday. By a vote of 23 to 8, the state Senate approved the partial ban on automated ticketing that had sailed through the House with a vote of 109 to 34. Because it passed with supermajority support, the bill becomes law upon being signed by Governor Greg Abbott (R), who made getting rid of cameras part of his campaign platform.Most, but not all, of 37 cities running red light cameras would lose the ability to approve $75 photo citations issued by private, for-profit companies. Cities that have clauses that allow for early termination of their photo ticketing contract in the event of adverse state legislation must pull the plug immediately. Cities that struck the escape clause in anticipation of the legislature's move can continue using the cameras until the contract expires -- many of the deals have been extended for twenty years or more.
Arlington is one the cities that has decided to screw its residents porn-style, going at them from multiple angles. When the bill passed, city legislators unanimously voted to extend its contract with American Traffic Solutions from five years to twenty years. This move will give residents less protection from traffic cams' perverse incentives than residents living elsewhere in the state. It also means they'll be paying more tax dollars for this dubious privilege, as there will be no reason for ATS to maintain competitive pricing for the next couple of decades. Nor will it feel any pressure to improve its tech, which has performed poorly enough to result in millions of dollars of refunds.The good news is these cities will have to deal with the state Attorney General if they want to continue utilizing traffic enforcement measures the state has banned. Tickets from red light cameras in the cities that opted for extended revenue generation rather than compliance with the law are going to have a hard time collecting on unpaid tickets. The law prohibits the DMV from blocking vehicle registrations and license renewals for unpaid tickets. The problem is drivers may not be aware of the ban and will continue to pay fines when they're not legally required to.Cities that have opted for further resident-screwing will face increased activism efforts that will fill the gaps in the Attorney General's enforcement.
Jurisdictions that attempt to defy the legislature will have to take on state attorney general Ken Paxton, who is tasked by the bill with enforcing the shutdown. Byron Schirmbeck, state coordinator for Texas Campaign for Liberty, says his group will also hold cities to account."Fortunately the remaining camera sanctuary cities will no longer be able to block registrations for unpaid tickets making them completely optional," Schirmbeck told TheNewspaper. "The cities that do have to shut down their programs are also not allowed to pursue outstanding tickets and all existing registration holds will be removed. We will consider petition efforts and an increased trash your ticket campaign to go after those that choose to operate camera programs after the ban."
While it's always tough to watch a revenue stream dry up, the fact is traffic cameras do little more than generate unearned revenue. They don't make drivers safer or encourage better driving. But that was never the goal. Revenue generation was the endgame. Fortunately for most Texans, the state has realized this money is no longer worth pursuing.

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Bethesda And Zenimax Settle 'Redfall' Trademark Dispute With Trollish Book Publisher

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Zenimax, parent company of Bethesda, was in a trademark dispute with book publisher BookBreeze.com on behalf of author Jay Falconer over Zenimax's trademark application for the term "Redfall". I could have sworn I wrote about this when the this dispute started in February, but it appears not. At issue is that Falconer has a sci-fi series of novels with the Redfall title and he is claiming that the public might be confused between his books and whatever game Zenimax is planning to publish with that trademark. Much of the speculation is that it will be for the next Elder Scrolls game.

It’s not known exactly what game ZeniMax applied for the Redfall trademark for, but with another Elder Scrolls game in the works at ZeniMax-owned Bethesda, it’s possible that the company was planning to use Redfall in the name of that in-development game.According to the author, his legal team attempted to resolve the issue before filing an official dispute, but was met with radio silence from ZeniMax at every turn. “My lawyers made attempts to contact gaming company to work out a simple licensing deal for them to use my Redfall name,” tweeted Falconer. They ignored me every time. Shame. Left me no choice. All could have been avoided. Just call my attorneys back.”
All of which is nonsense. The video game and literary markets are not the same and it strains the mind to imagine how the average consumer might somehow confuse an entry in the Elder Scrolls game series with a series of science fiction novels. This always had the smell of a money-grab and I had rather hoped that Zenimax would bother to fight this one out in court. After all, the real concern by Falconer appears to be that he might some day want to license his books for a game. That hope and dream is not the basis for a trademark dispute, however.Unfortunately, it looks like Zenimax has settled with Falconer. I say unfortunately because, as is common, the terms of the settlement have not been disclosed.
"ZeniMax Media Inc. and Bookbreeze.com are pleased to announce that they have amicably resolved a pending trademark dispute related to the Redfall trademark," reads a short statement. "While the specific terms of the agreement are confidential, the parties believe that resolution of the matter is mutually beneficial to both ZeniMax and Bookbreeze.com and their respective fans."
So what does that all mean? Who knows. I'll be interested to see if Zenimax gets its trademark for "Redfall", or uses it without a trademark. We'll never find out if any money was exchanged, but, if that happened, it looks like Falconer will have pulled off some trademark bullying for profit. It would have been much better to see this fought out in court, because the initial claims weren't particularly strong.Oh well. Perhaps Zenimax's lawyers have grown tired of lawyerly adventures after taking too many trademark arrows to the knee.

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posted at: 12:00am on 30-May-2019
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SFPD Finally Admits The Search Of A Journalist's Home Over A Leaked Document Was Probably Illegal

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The raid of stringer Bryan Carmody's home by the SFPD has detonated directly in the face of the department. After someone in the department leaked a police report in an effort to smear a prominent public defender following his unexpected death, an internal investigation was opened to determine which SFPD employee was the source of the leak.This internal investigation quickly went external. Bryan Carmody had shopped copies of the police report to a few news stations, which resulted in the SFPD raiding his home and seizing $10,000 of his equipment, including phones, laptops, and storage devices.After a brief round of "this is all by the book" by a number of SF officials, it soon became apparent this was not at all by the book. In addition to Carmody's First Amendment protections, the stringer was also likely shielded by state law, which forbids searching and seizing journalists' property for the sole purpose of trying to identify a source.The mayor walked back her statement defending the SFPD for its actions. So did a couple of council members. The District Attorney delivered the harshest criticism of the police force, saying he couldn't imagine a situation where this search would have been appropriate.At long last, the department itself is coming around to how much it fucked this whole thing up. A qualified apology has been delivered, as Evan Sernoffsky reports for SF Gate.

After two weeks of growing outrage, San Francisco Police Chief Bill Scott apologized Friday for raiding a journalist’s home and office in a bid to unmask a confidential source, admitting the searches were probably illegal and calling for an independent investigation into the episode.Police “should have done a better job,” Scott said in an interview with The Chronicle. “I’m sorry that this happened. I’m sorry to the people of San Francisco. I’m sorry to the mayor. We have to fix it. We know there were some concerns in that investigation and we know we have to fix it.”
Among Chief Scott's concerns are the possibility the search warrants didn't specify Carmody's occupation. It seems clear they didn't. If they did, they likely would have been rejected as impermissible under state law, not to mention the First Amendment.
“One of the issues that I saw in this is in the initial warrants,” he said. “There’s one that’s particularity troubling and concerning. The issue is the clarity in the warrant. The description of what his role entails as a journalist — there should have been more clarity there. That is going to be a concern that has to be explored further.”
Scott has seen the underlying documents, so this hedging is a little disingenuous. But it's probably necessary, at least from the department's perspective. The SFPD is likely planning its defense against Carmody's inevitable lawsuit, so it does the agency no favors if the chief states plainly officers conducted illegal searches using warrants obtained untruthfully. The SFPD may also be holding out hope the judge presiding over the coming lawsuit will find stringers aren't journalists, but that eventuality seems unlikely.Furthermore, "issue of clarity" just sounds like fancy words for lying. It's incredibly unlikely the officers didn't know what Carmody did for a living. Stringers are fixtures at crime scenes, car accidents, and other emergency calls. This information appears to have been downplayed in the affidavit, if not omitted completely.The independent investigation could lead to additional charges. Not only will this investigation try to find the source of the leak, but it's going to go after the officers who used a bogus affidavit to violate the state's journalist shield law. The end result of all of this is the stripping away of another layer of trust and a widening of the gap between the police and the policed.

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posted at: 12:00am on 29-May-2019
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Rage 2 Drops Denuvo In Record Time After Customer Outcry

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I have avoided writing posts every time Denuvo's DRM, once thought un-crackable, ends up being very, very crackable. At some point, everyone basically agrees that the dragon has been slayed and we all ought to stop poking it with pointy sticks. The most recent story involving Denuvo, however, deserves to be highlighted, if only to recognize that the neutering of this once-vaunted antipiracy tool has reached a stage that requires a different time measurement. Let me explain.As Denuvo's technology unraveled, both the company and its defenders retreated to a position of claiming that even if Denuvo could protect a game for mere weeks, or even days, then it was still worth it. A huge chunk of a game's total sales, goes the theory, occur in the initial release window, so protecting that timeline is vital. As Denuvo began to be cracked more quickly, that useful time for protection went from months to weeks to days. As a result, I began updating you all here with posts detailing the dwindling timeline for major game titles' protected status. It became a useful unit of measurement right up until a game was cracked before its public release.But perhaps we have a new unit of measurement we can start using: the length of time before a game publisher decides to strip out Denuvo itself. We don't appear to have much time to use this new measurement unit, however, as that timeline already appears to be in the category of days.

When Rage 2 players discovered it was tagging along for the ride in the post-apocalyptic shooter’s Steam version, they were not pleased.They didn’t have to wait long for a solution. Rage 2's latest Steam patchtouts that it “removes Denuvo DRM” because its developers “saw a fewrequests”—emphasis theirs. Rage 2 came out on May 14, meaning that player complaints got it stripped of Denuvo mere days after release.
This isn't a brand new thing, of course. Previous titles have had Denuvo stripped out of games via patch updates. What's different with Rage 2 is the speed with which this decision was made, coupled with the outcry from a well-informed customer base. Gamers at this point generally are aware of what Denuvo is. They're also aware of the debate over claims that Denuvo has performance impacts on how games play on their PCs. And many of them are probably even aware of how useless the DRM has become.All of this combines with some specific circumstances in this game to create pissed off customers when games release with Denuvo. Pissed off customers are generally something a business wants to avoid, leading to the publishers of Rage 2 to strip Denuvo from its game with haste.
For one, there was all the passionate fan response to Denuvo’s presence in the game, which took on an even more aggrieved tone than usual due to the fact that the DRM wasn’t present in the game’s Bethesda Launcher version. This led to the usual slew of negative Steam reviews, forum posts, and other complaints. On top of that, Rage 2 was cracked within less than 24 hours of its release, seemingly because of the aforementioned lack of Denuvo in its Bethesda Launcher version. Given that Denuvo’s stated goal is to “protect initial sales” from piracy, there was likely no real reason for Bethesda, id, and Avalanche to keep it around anymore.
And so here we are. Denuvo has reached a place where the best measurement of its success or failure is no longer how long it takes to crack the games it is supposed to be protecting. Now we measure it by how fast its own customers are dropping the DRM from their games entirely.It really shouldn't take some third unit of measurement for the industry to realize that this is all pointless.

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posted at: 12:00am on 29-May-2019
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This Week In Techdirt History: May 19th - 25th

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Five Years AgoThis week in 2014, we watched as the proposed NSA reform bill — the USA Freedom Act — got watered down by the House to the point that every civil liberties organization pulled its support for the law, and it started to look like Reps. Rogers and Ruppersberger had pulled a fast one on us all. The House inevitably passed the now-useless bill (even without the votes of half of its original co-sponsors), so attention had to turn to the Senate and other ways of fighting back against the NSA, like a small victory in freeing the NIST from collaborating with the agency on encryption standards.Ten Years AgoThis week in 2009, various Attorneys General were still on the warpath against Craigslist (even those who had successfully busted criminals on the site) after it gave in to pressure the previous week. While some tried to draw odd conclusions from Craigslist's cooperation, the company was also fighting back and suing for declaratory relief against one AG. And we had to wonder as they did: why Craigslist, not newspapers or other websites?Meanwhile, Perfect 10 was shot down yet again in an attempt to hold search engines liable for image thumbnails, while Joel Tenenbaum's lawyer was gearing up for a likely defeat with plans to defend downloading as fair use. And we read one pro-copyright book that surprised us by relying heavily on... Techdirt comments to make its case about how bad the pirates are.Fifteen Years AgoThis week in 2004, Jack Valenti was feuding with Quentin Tarantino over the latter's failure to condemn movie piracy, Italy was getting ready to put people in jail for file sharing, and California was considering doing the same. Google was making waves on two fronts: then-brand-new Gmail's unprecedented offering of 1GB of storage was spurring the competition to at least pretend to do the same (while a typo on Gmail itself led some people to think they might be getting a terabyte), and the Google IPO was leading absolutely everyone to try to find a way to benefit from the hype (not least the list of underwriters, which was basically all of Wall Street). But, the guy who had been selling fake "pre-IPO shares" to Wall Street insiders was one of two scammers facing jailtime, too.

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posted at: 12:00am on 26-May-2019
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Several Pro And College Sports Teams Suspended From Twitter Over Mystery DMCA Notices

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We've had many long discussions here, and have replicated those discussions through more official channels, as to how there are severe problems with the DMCA when it comes to its collision with free speech. One of the core issues is the way the DMCA sets up a system in which service providers feel forced to proactively take down the speech of others based on accusation in the form of a DMCA notice, rather than this working the way it does in nearly every other aspect of American law in which an accusation does not result in a penalty. And penalty truly is the right word, as the American system recognizes that speech is among the most fundamental of freedoms. And, yet, when service providers like Twitter get sent DMCA notices over copyright claims, they are heavily incentivized to take down the content and take action against the account holder -- or face potentially massive liability.Such as the Twitter account for the Houston Rockets, which found itself suspended over a series of DMCA notices for old tweets that apparently contained some unlicensed music. The Rockets also weren't alone.

On Monday, the Houston Rockets Twitter account found itself among a handful of official sports team accounts, most of which were college team Twitters. The accounts were temporarily shut down due to DMCA complaints against them for the use of copyrighted music without obtaining those rights. The Rockets were joined by Auburn football, Rutgers football, Iowa State football, and Iowa football and gymnastics as prominent official accounts to be shut down either this weekend or on Monday.“Our Twitter account has been temporarily suspended due to a few prior social media posts with copyrighted music,” the Rockets said in a statement. “We are working to correct the issue now.”
To my immense frustration, nobody appears to have any details as to what the tweets in question were, what music they contained, or who issued the DMCA notices. That is, frankly, fairly strange. It's also worth noting that the Rockets at one point had something of a rogue managing their Twitter account, and even fired that individual for behavior unrelated to copyright.Still, it's instructive to witness what happened here. Twitter gets DMCA notices claiming infringement on the part of a rather marquis account for the Houston Rockets, does whatever review of the tweets in question it does, and then shuts down the account, ostensibly over the volume of tweets contained in the DMCA notice. In case it isn't obvious: that's crazy. Think of all the speech that got shut down that wasn't infringing when that occurred. And, yes, you might not be terribly concerned with the speech emanating from the account of an NBA team, but its more than 2 million followers did.And it's also terribly frustrating that this system is set up in a way that shrouds all of this from the public, as though a matter of public speech should be treated like some kind of mystery of national security proportions. The public has an interest in the deletion or suspension of speech, and an interest in the fact that the DMCA is written in a way, and enforced in a way, that not only encourages service providers to take this proactive heavy-handed action, but also leaves those issuing DMCA notices when they shouldn't without punishment.Today that was a bunch of sport team accounts. Tomorrow it could be speech you might care about.

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posted at: 12:00am on 25-May-2019
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One Year Into The GDPR: Can We Declare It A Total Failure Yet?

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Tomorrow will represent a full year since the GDPR went into effect. In the run-up to the GDPR, we called out many of the problems with the regulation which, while well-intended, did not seem to deal well with the nature of the internet, speech, or what privacy actually means. In the year since, we've posted numerous stories highlighting the negative consequences of this poorly considered law.Whenever we do that, however, many of the law's defenders insist that these unintended consequences are a small price to pay for either protecting our privacy or reining in the internet giants. So, it does seem worth investigating whether or not the GDPR has done either of those things. And, so far, the evidence is sorely lacking. Indeed, on the question of dominance, we pointed out late last year that the early returns suggested that the GDPR had only made Google more dominant, which hardly seems like a way to punish the company.And now that we have more results, it seems more and more people are realizing that the GDPR has been an utter failure. As CNBC notes in its evaluation of the law, it's hard to see how the GDPR has resulted in any benefits to the public. Instead, it's just created a big mess:

...one year later, GDPR hasn't lived up to its potential.Among some consumers, GDPR is perhaps best known as a bothersome series of rapid-fire, pop-up privacy notices. Those astronomical fines have failed to materialize. The law has created new bureaucracies within corporations, and with those, tension and confusion. And it's unclear if the EU data authority that oversees the law is adequately staffed to handle its demands.
In short, from the user side especially, all the GDPR has done is made people constantly need to click on annoying privacy and cookie notices that they don't read and don't find useful at all. This shouldn't have been a surprise. We've pointed out for many years that the entire concept of a privacy policy is backwards. It creates a situation where no one actually reads it, and it doesn't do much to protect anyone's privacy. I head someone recently note that they should really be called "data exploitation policies," and that, at least, would be a bit more accurate. But still wouldn't get anyone to read them or better protect anyone's privacy.And, as Politico has pointed out, it appears that not only has the GDPR made the big tech companies more dominant, it's now laid out the rules of the road by which they can introduce even more privacy-destroying offerings:
New forms of data collection, including Facebook's reintroduction of its facial recognition technology in Europe and Google's efforts to harvest information on third-party websites, have been given new leases on life under Europe's General Data Protection Regulation, or GDPR.Smaller firms whose fortunes were of special concern to the framers of the region's privacy revamp also have suffered from the relatively high compliance costs and the perception, at least among some investors, that they can't compete with Silicon Valley's biggest names.Big companies like Facebook are 10 steps ahead of everyone else, and 100 steps ahead of regulators, declared Paul-Olivier Dehaye, a privacy expert who helped uncover Facebook's Cambridge Analytica scandal. There are very big questions about what they're doing.
This entire approach is backwards and silly. If we want to have better control over our privacy we're not going to do it through demanding better privacy policies, or confusing data protection laws. We need to create the incentives to put the actual control of the data back into the hands of the users. And that doesn't just mean a right to download your info. It means that you have full control over your data and get to control what apps and services can access it and for what reasons. That's not the world we have today, and nothing in the GDPR gets us any closer to it.And the answer is not "more enforcement." That just locks in the big companies even more and continues to present the roadmap to "follow" the rules, or to work the refs. Instead, if we moved to a system of protocols instead of platforms we could decouple the data from the service, putting real control of the data back in the hands of end users. Then things like privacy policies and GDPR enforces wouldn't matter so much, because we'd have direct control over our data.Instead, all we have is a massive law that has harmed startups, entrentched big companies, failed to protect privacy and just served to annoy most users.
The reality is that many people, in order to save time, simply click OK on the never-ending stream of pop-ups and most everyone I spoke to confess that they just move on when unable to access the desired website. Or, as one Twitter user told expressed, I read a lot fewer articles in US papers/magazines.
And, sure, there have been a few fines of internet companies, but as recent GDPR complaints show, there does not appear to be any way to actually fully comply with the GDPR, which makes it a particularly useless law. If you can't actually comply, if it's not actually protecting privacy, and it's just annoying users and creating more bureaucracy, what good is it?Meanwhile, Alec Stapp has collected a ton of stories and examples of the GDPR's negative impact. It notes much of the stuff above, but also highlights just how damaging it's been to innovation on the whole:
  • Startups: One study estimated that venture capital invested in EU startups fell by as much as 50 percent due to GDPR implementation. (NBER)
  • Mergers and acquisitions: 55% of respondents said they had worked on deals that fell apart because of concerns about a target company's data protection policies and compliance with GDPR (WSJ)
  • Scientific research: [B]iomedical researchers fear that the EU's new General Data Protection Regulation (GDPR) will make it harder to share information across borders or outside their original research context. (POLITICO)
  • So now that we've had a year, can we admit that the GDPR has been a total failure by almost every possible measure? Supporters of the law will say to give it more time, or to say we need to "improve" the rules, but it should be obvious by now that the entire approach is the problem, not the implementation.

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    New Assange Indictment Makes Insane, Unprecedented Use Of Espionage Act On Things Journalists Do All The Time

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    As we noted when Julian Assange was arrested in the UK last month, it was notable how... lacking the charges were. The whole thing revolved around an apparently failed attempt to help Chelsea Manning crack a CIA password. We still had significant concerns about the way the CFAA was being used, and the fact that the description of the "conspiracy" involved actions that tons of journalists do every day -- but the original indictment didn't have what was most feared: use of the Espionage Act against the actions of a news organization. At the time, some knowledgeable observers pointed out that it was likely a superseding indictment would come, and it wouldn't surprise them if it had Espionage Act charges. And they were right.On Thursday the DOJ unsealed the new indictment against Assange and it should absolutely terrify anyone who believes in a free press and the 1st Amendment. It takes a whole variety of things that journalists at major publications do every single day -- finding and cultivating sources, getting information and publishing that information -- as evidence of Espionage Act violations. We've always had issues with the Espionage Act, which we believe is almost certainly unconstitutional. In the past, we've highlighted how it's been used in ridiculous ways against many whistleblowers, and it doesn't even allow for a defendant to give a reason for why they leaked documents (i.e., they can't say they did it to blow the whistle on government malfeasance -- it's just automatically treated as espionage, which is nonsensical).However, this indictment goes much further. It's not going after an actual leaker, it's going after a publisher. It's so bad that even Obama-era officials (who used the Espionage Act against leakers more times than any other President in history combined) seem horrified. This is from the former DOJ spokesperson in the Obama admin:

    Much of the indictment focuses on Wikileaks/Assange cultivating sources and requesting information -- which is what lots of reporters do all the time. For example, the first count includes the following actions:
    To willfully communicate documents relating to the national defensenamely,detainee assessment briefs related to detainees who were held at Guantanamo Bay, U.S.State Department cables, Iraq rules of engagement files, and documents containing thenames of individuals in Afghanistan, Iraq, and elsewhere around the world, who riskedtheir safety and freedom by providing information to the United States and our allies, whichwere classified up to the SECRET levelfrom persons having lawful possession of oraccess to such documents, to persons not entitled to receive them
    But, that's what lots of reporters do all the time in cultivating sources within the government. Bob Woodward and Carl Bernstein became celebrated and famous by getting government officials to leak classified information. Indeed, it's what a bunch of reporters at the NY Times, Washington Post, etc. are doing right now to try to find information about this White House. And, yes, President Trump likes to refer to them as "fake news," and if you buy that you are too stupid to read this site, so go away. This is a full frontal attack on the First Amendment and basic reporting. If this works it sets a precedent to go after any investigative reporting of the government.It's also notable -- and ridiculous -- that the indictment focuses on the supposed "danger" that Assange/Wikileaks put people into by publishing the documents that Chelsea Manning leaked.
    The significant activity reports from the Afghanistan and Iraq wars that ASSANGEpublished included names of local Afghans and Iraqis who had provided information to U.S. andcoalition forces. The State Department cables that WikiLeaks published included names ofpersons throughout the world who provided information to the U.S. government in circumstancesin which they could reasonably expect that their identities would be kept confidential. Thesesources included journalists, religious leaders, human rights advocates, and political dissidentswho were living in repressive regimes and reported to the United States the abuses of their owngovernment, and the political conditions within their countries, at great risk to their own safety.By publishing these documents without redacting the human sources' names or other identifyinginformation, ASSANGE created a grave and imminent risk that the innocent people he namedwould suffer serious physical harm and/or arbitrary detention.
    News publishers often have to make difficult decisions about publishing certain info that could cause harm, but it does not violate the Espionage Act to do so in the service of informing the public. Even worse, as has been detailed for many years now, the US government admitted back in 2013 that not a single death was caused by Manning's leaks, and former Defense Secretary Robert Gates even called claims of harm "overwrought" and said:
    Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.''
    In fact, Reuters reported (via its own cultivated sources and leaks) that the "damage" claims were purposefully exaggerated by Obama admin officials in the hopes that it would create enough to bring these bogus charges against Assange:
    A congressional official briefed on the reviews said the administration felt compelled to say publicly that the revelations had seriously damaged American interests in order to bolster legal efforts to shut down the WikiLeaks website and bring charges against the leakers.I think they just want to present the toughest front they can muster, the official said.But State Department officials have privately told Congress they expect overall damage to U.S. foreign policy to be containable, said the official, one of two congressional aides familiar with the briefings who spoke to Reuters on condition of anonymity.
    The only "evidence" of harm shown in the indictment is just that Osama bin-Laden had some copies of the Wikileaks files when the US killed him:
    On May 2, 2011, United States armed forces raided the compound of Osama binLaden in Abbottabad, Pakistan. During the raid, they collected a number of items of digital media,which included the following: (1) a letter from bin Laden to another member of the terroristorganization al-Qaeda in which bin Laden requested that the member gather the DoD materialposted to WikiLeaks, (2) a letter from that same member of al-Qaeda to Bin Laden withinformation from the Afghanistan War Documents provided by Manning to WikiLeaks andreleased by WikiLeaks, and (3) Department of State information provided by Manning toWikiLeaks and released by WikiLeaks.
    There are a few other claims of people made "vulnerable" by Wikileaks publishing the Manning documents, but no evidence of actual harm.So, let's be clear here: the US government has admitted to making bullshit claims about non-existent "harms" done by Wikileaks, and now it's using that to charge a news publisher with espionage for doing the same sort of work that tons of reporters do every day. It's an incredible attack on the 1st Amendment from this administration, and one that hopefully the courts will shut down.

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    Portland Trailblazers Streisand Stupid Local Article Into National Spotlight For No Reason At All

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    While stories about the Streisand Effect here are legion, the most frustrating aspect of them for me is typically how pointless and petty the victims of it are. There are so many of life's problems that can be best taken on by being completely ignored and the simple fact is that many famous folk and large companies have a much larger capacity and ability to ignore petty shit than the average person. I mean, come on people, you have lawyers and PR teams.The Portland Trailblazers certainly do. And, yet, they appear to have decided to Streisand a mildly trafficked big dumb stupid local publication into the national spotlight just by failing to ignore it. The setup here is a playoffs game 3 loss and Tim Brown, an editor of the Oregonian, doing the laziest of "articles."

    Tim Brown, the “Sports Trending Editor” of the Oregonian, published a lazy and actually-not-obligatory roundup of tweets from Blazers fans, NBA watchers, and lame-brained viral-hunting meme jockeys. Maybe these kinds of Twitter roundups are meant to be cathartic for fans, but mostly they suck mondo ass.There are 131 tweets embedded in Brown’s stupid post, mashing together bot-crafted shit like SportsCenter’s Twitter account recycling the grim success rate of teams down 3–0 in NBA playoff series—spoiler alert: it’s bad—with one each of every meme GIF ever made, plus, like, some internet blue check mark drearily firing off “This is a tough one.”
    It goes on from there, but the point is that the post was lazy and dumb, constructed mostly of Twitter reactions that add roughly zero value to anyone looking for a piece on this particular game. These sorts of articles are also not rare, however, and pretty much every professional sports team, major market or otherwise, are the subject of similar "takes."  The whole thing would have ended there, except that the post's headline yoinked a bad joke from a bad national sports journalist and then pumped the whole thing out onto social media sites for public consumption. Once the tweets and retweets, mostly limited to local Blazers fans, reached members of the team, one of them that should absolutely have known better decided to respond.
    Predictably, this tweet was seen by members of the Trail Blazers organization, among them Chris McGowan, the team’s president and CEO. Probably the right thing for McGowan and those in his employ to do with this kind of internet junk is sigh and grit their teeth and ignore it, but here he has chosen another course:

    Suddenly, what was a barely noticable dumb local post has not only entered the national attention category, but the Trailblazers come off looking petty. In fact, if you squint at this whole story in just the right way, the Oregonion appears to cut a sympathetic figure.And why? Again, every team has to endure this sort of thing and most of them safely ignore it all. Why Streisand this big dumb stupid article with threats of pulling ad-buys from a local publication over all of this?

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    posted at: 12:00am on 24-May-2019
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    Gaming Platform War Update: Epic Games Store Suspends Accounts...For Buying Too Many Games

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    As we've talked about before, it seems an era of gaming platform wars is upon us. While Valve's Steam platform mostly only had to contend with less-used storefronts like GOG and Origin, a recent front was opened up by the Epic Games Store, which has promised better cuts to publishers to get exclusive games and has attempted to wage a PR battle to make people mad at Steam. It's all quite involved, with opinions varying across the internet as to who the good and bad guys in this story are.Less complicated is the point of having an Epic Games Store at all. The idea would be -- wait for it -- to sell games. This is something that might not be fully understood by Epic itself, it seems, given that the platform has been busily suspending accounts for the crime of buying too many games.

    There’s a big sale on right now at the Epic Games Store, a time when many users—conditioned by Steam’s frequently generous discounts on a huge range of titles—go nuts and buy a ton of stuff real quickly. On Valve’s store that’s enough to get you a pile of shame, but on Epic’s it’ll just get your account blocked from making further purchases.
    Those Epic customers going through this right now are not taking it, ah, well.

    Enough users were affected by this that Epic's PR team is aware of it. Apparently the culprit is an overly aggressive fraud-detection system, with Epic's store deciding that nobody would buy that many games that quickly unless they were doing it with stolen payment credentials. Frankly, given that the store is running Steam-style sales, it really should have known better. Steam is famous for these types of sales and its customers are known to gobble up tons of titles when they happen. Five games is, frankly, child's play.And Epic's response isn't great.
    Nick Chester from Epic PR confirmed with Game Revolution that “This was a result of our aggressive fraud rules,” and that “If players run into this issue, they should contact player support so we can investigate.”
    Well, yeah, or you could just fix your game store. After all, Steam's works.

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    posted at: 12:00am on 23-May-2019
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    As San Francisco Bans Facial Recognition Tech By Local Cops, New York City's Legislators Stall On Transparency Reforms

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    Earlier this month, the San Francisco city council passed the first ban on facial recognition tech use by city agencies in the US. While other cities have scaled back government use of surveillance tech by introducing measures requiring public input periods and approval by city legislators, San Francisco is the only one to ban the tech outright. And it did so prior to any deployment by local agencies, managing to be one of the few governments to have ever have closed a barn door while horses were still in the barn.Elsewhere in the nation, not much is happening. In one of the most-surveilled cities in the United States -- New York City -- bills attempting to rein in the NYPD's enthusiasm for surveillance tech are going nowhere. This is from the New York Times Editorial Board:

    New York City’s own bill to regulate the use of this technology languishes in committee.That legislation, the Public Oversight of Surveillance Technology Act, was first introduced in 2017. It was introduced again last year with the backing of 17 out of 51 council members. Unlike the ordinances in San Francisco and Oakland, the New York City bill requires only that the police disclose basic information about the technology that is being deployed. It does not condition the use of new surveillance technology on the approval of the City Council.
    This is a city that loves its cameras and add-ons. Not so much the public, perhaps, but they're not really part of the equation in the largest city in the US. Current mayor Bill de Blasio says public disclosure would just allow the bad guys to win. His predecessor often acted as an extension of the NYPD, opposing any form of transparency or accountability foisted on the department, even if said foisting comes from a federal judge.There are numerous reasons new surveillance tech should be rolled out carefully and with transparency. Facial recognition tech is unproven. It tends to rack up false positives at an alarming rate and there appears to be very little vetting done by government agencies before they start throwing money at tech companies offering this software.It's not impossible to hold law enforcement agencies more accountable to the public. You just have to want to do it. There's a roadmap in this post about San Francisco's new ban on facial recognition tech showing it can be done. But in New York City, the council is on the fence and the mayor's openly opposed to it. A city of this size that has been "served" by a self-serving police department for its entire history has an uphill battle ahead of it. But there's no reason legislators should back down. They're supposed to represent the residents of the city, not a single government agency that wields an outsized amount of power.

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    Government Generously Hands Back Two-Thirds Of The $626,000 It Stole From Two Men Driving Through Missouri

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    A case out of Missouri is highlighting yet again the stupidity and vindictiveness that defines civil asset forfeiture. In January 2017, law enforcement seized $626,000 from two men as they passed through the state on their way to California. According to the state highway patrol, the men presented contradictory stories about their origin, destination, and the plans for the money found during the traffic stop.The complaint filed against the money made a lot of claims about the government's suspicions this was money destined for drug purchases. Supposedly evidence was recovered from seized phones suggested the two men were involved in drug trafficking, utilizing a third person's money. Despite all of this evidence, prosecutors never went after the men. They only went after the money.

    Records searches of both state and federal courts did not identify any criminal charges against Li, Peng or Huang.
    Even the speeding that predicated the stop (in which a drug dog "alerted" on the rental vehicle that contained no drugs) went unprosecuted.This is where the stupid begins: alleged drug dealers allowed to continue their drug dealing by state and federal agencies more interested in the men's cash.But it gets stupider. This was offered up in the complaint against the seized money as evidence of the men's criminal activities.
    Authorities noted in the complaint he lived “9 houses” away from the site of a residence where drug transactions were occurring and a contact in his phone was recently the subject of a civil forfeiture action.
    That's some mighty fine evidence. If you happen to live in the same neighborhood as a known criminal, I guess you're a criminal, too. That's just how society works, ladies and gentlemen. Move to a better neighborhood if you don't want to be lumped in with your worst neighbors.The other part is stupid, too. According to this line of thought, if law enforcement has stolen cash and property from someone in your Contacts list, you must be a criminal. Only criminals would associate with people whose stuff has been taken by the government but have never been convicted of criminal activity.Also apparently suspicious: traveling and not attempting to avoid mandated IRS reporting.
    Peng had a number of bank transactions the complaint states were “highly unusual” including multiple deposits and wire transactions for about $100,000 each. Financial records also showed three trips between Chicago and California and one from Chicago to New York in a three-month period between November 2016 and January 2017.
    You just can't win. Keep deposits too low (under $10,000) and the federal government thinks you're engaged in structuring. Keep them well above the mandatory reporting mark and you're probably a drug dealer.It appears the agencies involved in this seizure didn't think they had enough real evidence to follow through on this forfeiture. More than two years after the $626,000 was seized, the government is returning it to its rightful owners. That's where the vindictiveness comes in. The government hasn't won a criminal or civil case against any of the people involved, but it's still going to keep a third of the cash just because.
    U.S. District Attorney for Western Missouri Tim Garrison, in a settlement agreement dated April 25, wrote the government will return almost $418,000 to claimant Lu Li, of Chicago, and will keep almost $209,000.
    Even when the government loses, it still wins. One-third of $626,000 remains in the hands of a government that couldn't prove anything it alleged, even in a civil case where the standard of proof is considerably lower.In the end, we have three people short $200,000 and a government that can't competently prosecute people or their money, even when the latter can't defend itself in civil forfeiture litigation. [waves American flag with one blue stripe frantically while humming 'The Ballad of the Green Berets" for some reason]

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    posted at: 12:00am on 22-May-2019
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    US Magistrate Judge Provides The Template To End Copyright Trolling With Ruling Against Strike 3

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    While we've been busily pointing out that the practice of copyright trolling is a plague across the globe, it seems there is something of a backlash beginning to build. For far too long, copyright trolls have bent the court system to their business model, with discovery requests and subpoenas allowing them to unmask internet service account holders on the basis of IP addresses, and then using that information to send settlement/threat letters to avoid trials altogether. Put simply, that is the business model of the copyright troll. The backlash against it has been multi-pronged. Canada has begun restricting what types of threat letters trolls can force ISPs to send to their customers, for instance. Elsewhere, Swedish ISPs have have led something of a legislative crusade against copyright trolls. In the US, some courts are finally realizing how bad IP addresses are as evidence, pushing trolls to get something better.But the key to ending the plague of copyright trolling has probably been best outlined in a recent decision by a US Magistrate Judge against Strike 3 Holdings, in which the judge argues using Strike 3's own statistical analysis that it is abusing the court system to the detriment of innocent people.

    Judge Orenstein denied motions for expedited discovery in thirteen cases. This means that the adult video company can’t get a subpoena to identify the alleged pirates. While we have incidentally seen similar decisions, the motivation, in this case, is worth highlighting.  In his order, the Judge writes that allowing Strike 3 to obtain the identities of the account holders creates a risk.Specifically, it will put Strike 3 “in a position to effectively coerce the identified subscribers into paying thousands of dollars to settle claims that may or may not have merit, so as to avoid either the cost of litigation or the embarrassment of being sued for using unlawful means to view adult material.”
    In other words, the Judge is noting that Strike 3's copyright troll business model is, by nature, one that should disallow it from the kind of unmasking of account holders it so desperately needs to do to make any of this work. Essentially, granting these motions in favor of Strike 3 would have the court endorsing, if not actively participating in, the systematic extraction of money from people based on fear and embarrassment. Whatever that is, it sure ain't justice.The court doesn't stop there, however. The order continues by noting that granting the discovery of account information would almost certainly not result in Strike 3 actually bringing any cases to trial. Trial proceedings are supposed to be the point of such subpoenas, but Strike 3's own statistics prove it's not after trials at all.
    Since 2017, Strike 3 has filed 276 cases in the district, but zero have gone to trial.Of the 143 cases that were resolved in the district, 49 resulted in a settlement and 94 were voluntarily dismissed. The latter number includes 50 cases where Strike 3 wasn’t confident that the defendant is the infringer. In other words, people who are likely wrongfully accused. This means that in one-third of the resolved cases, Strike 3 has likely targeted the wrong person. This number is “alarmingly high,” according to the Magistrate Judge. “Strike 3 acknowledges that in many cases, the ‘Doe’ it has sued – that is, the subscriber – will prove to be someone other than the person who engaged in the allegedly unlawful conduct the Complaint describes,” the order reads. “And as it has now revealed in response to my inquiry, the proportion of such unprovable cases is alarmingly high,” Judge Orenstein adds.
    None of this is surprising to readers here, of course. This is how Strike 3 operates. The entire business model relies on a scattershot approach to threat letters, in which some percentage will comply and pay out of pure fear. The problem is and has always been that too many courts don't actually consider this fact when granting subpoenas to unmask account holders. Here, the court manages to put that thought into its decision.And, as a result of these "alarming" statistics, the judge has denied the motion to unmask the account holders in these cases. It's not exaggerating to say that if all, or even most, courts took the same route as this one, copyright trolling as a business model would completely fall apart.And that would be a very good thing.

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    posted at: 12:00am on 22-May-2019
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    ICE Tops Its Old Record, Spends Another $820,000 On Cellphone-Cracking Tools

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    As consecutive heads of the FBI have whined about the general public's increasing ability to keep their devices and personal data secure with encryption, a number of companies have offered tools that make this a moot point. Grayshift -- the manufacturer of phone-cracking tool GrayKey -- has been selling hundreds of thousands of dollars-worth of devices to other federal agencies not so insistent the only solution is backdoored encryption.ICE is one of these agencies. It led all federal agencies in phone-cracking expenditures in 2018. It spent $384,000 on these tools last year. It wasn't just ICE. Other agencies like the DEA and [checks notes] the Food and Drug Administration have also purchased these devices. But ICE led the pack, most likely because ICE -- along with DHS counterpart CBP -- are engaging in more suspicionless, warrantless device searches than ever.When you don't have a warrant or consent, a third-party tool that can undermine device encryption is the next best thing. ICE must have a lot of phones to search -- or plans on amping up its search count -- because it's more than doubled its spending on GrayKey devices alone. Thomas Brewster of Forbes has more details.

    The U.S. Immigration and Customs Enforcement (ICE) splurged $820,000 on tech made by Grayshift. The Atlanta-based company makes the GrayKey, previously described as the world's best iPhone hacking tech for police and intelligence agents, allowing them to break passcodes and retrieve information from inside Apple devices.The contract, signed just last week, takes the immigration department's spend with the company to over $1.2 million, following a $384,000 Grayshift deal last year. That's the most spent on the superpowered iPhone hacking service by any government department, local or federal, looking across public records. The deal also marks Grayshift's biggest publicly known contract to date, according to a federal procurement database and state-level records. Its previous biggest, of $484,000, was with the U.S. Secret Service.
    Maybe ICE just didn't want the Secret Service to top the list of encryption-breaking expenditures for this fiscal year. Or, more likely, it's seizing devices at a record pace and can't keep up with the rising tide of locked phones it's created.The problem with this isn't that the government has access to devices like this. It's that ICE (and CBP) are operating in a super-gray area, legally-speaking. While courts have tended to allow warrantless searches under the border exception, the agencies themselves have only made this worse by refusing to enact meaningful guidelines that would curb abuses and careless handling of peoples' devices and data. They've created a "wild west" atmosphere every place someone could cross a border, which includes a number of inland international airports.Tools that make it easier for the government to access peoples' papers and communications without a warrant isn't good news for anyone. It's a safe bet that if the judicial and political climate doesn't change, 2020 will bring another record ICE expenditure next year.

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    posted at: 12:00am on 21-May-2019
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    EU Blocks 'Brexit Beer' Trademark, First As 'Offensive', Then As Non-Distinctive

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    Brexit, as most of you will know, is still a full on mess. And, frankly, it's been a mess since the historic vote was taken and the British public rode a wave of nationalism draped in false promises to decide to economically scuttle their own country. In the nearly three years since, the British government has managed to put on an impressive performance piece on dysfunctional government, managing to refuse to agree on how to actually implement the will of their own people.At the same time that all of this has been going on, some opportunistic folks have been attempting to cash in on the Brexit story by trademarking the term, without even having a plan for how to use those marks. As we've pointed out in past posts, this sort of attempt to cash in is fully annoying, but not illegal. Which makes it sort of strange to watch the EU throw everything against the wall just to see what's sticky enough to deny a UK brewer his trademark for Brexit Beer.Upon first reviewing the application, the EU's IPO denied it on the insane grounds that the term "Brexit" is offensive.

    The European Union Intellectual Property Office (Euipo) denied a trademark for a ‘Brexit’ energy beverage back in 2016 after ruling the term was too ‘offensive’ to put on a can. An official had felt ‘citizens across the EU would be deeply offended’ and it would ‘undermine the weight of an expression denoting a seminal moment in the history of the European Union.’
    The two men that owned the brewery were understandably confused when told they couldn't have a trademark because a term thrown around their own country with reckless abandon was too offensive. It sure looked for all the world like the EU simply didn't want to put its stamp of approval on the term "Brexit" due to its own political distaste for it. That sure makes more sense than the odd claim that 'Brexit' is going to offend people if given trademark status.So the brewery appealed... and was denied again. Only this time, the excuse was that the term "Brexit" was not distinctive.
    This time the Grand Board ruled the word ‘Brexit’ was not ‘distinctive’ enough rather than being offensive, which it rejected. It ruled in its final judgement: ‘The term “Brexit” denotes a sovereign political decision, taken legally and has no negative moral connotations; it is not a provocation or incitement to crime or disorder.
    But how does this make any more sense? As we've said, it's annoying when corporate interests attempt to cash in on pop and political culture with trademark law, but it's not against trademark law to do so. And a "Brexit Beer" certainly would be distinctive in the alcohol industry. The craft beer industry in particular has made an industry culture out of playfully referencing all sorts of things with their names and labels. I could see all kinds of creative ways for a "Brexit Beer" to be distinctive.Again, this has the look and feel of the EU making these decisions for political reasons outside the purpose of trademark law. While we don't spend much effort around here arguing for more trademarks, it's worth pointing out when government bodies reject those trademarks improperly as well.

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

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    Five Years AgoThis week in 2014, we took a look at how the administration's terrible track record on transparency had made lawsuits a default part of the FOIA process, and got an example of how FOIA requests were resulting in agencies sharing less information than they would otherwise. Congress was busy pretending SOPA was actually the law even though it wasn't, the DOJ was trying to downplay its lies to the Supreme Court while also arguing that Americans have no fourth amendment protections for communication with foreigners. Meanwhile, a dangerous court ruling affirmed Europe's right to be forgotten and, predictably, opened the floodgates for abuse. We were also fresh off the Google/Oracle ruling declaring APIs to be copyrightable, which spurred Automattic to pledge that it will not claim such copyright.Ten Years AgoThis week in 2009, we learned that the recently-discovered fake medial journal published by Elsevier to boost Merck products was not at all an isolated incident. We also saw the beginning of an incredibly important lawsuit that would eventually invalidate the patenting of isolated genes, as the ACLU teamed up with cancer patients to sue Myriad Genetics. It was a question that should have been addressed much earlier.Meanwhile, Sony's CEO was admitting the company should have taken a more "open" approach to digital music, but they comments were pretty similar to what he'd said years earlier, and the CEO of Sony Pictures was almost simultaneously out saying he thinks no good has come from the internet, at all, period. Universal and YouTube were working on their collaboration to create Vevo, Jammie Thomas refused to settle with the RIAA, and France finally approved its three strikes system for copyright infringement — an approach with problems well illustrated by Ed Felten's modest proposal about applying it to print media as well.Fifteen Years AgoThis week in 2004, phone networks were still being stupidly hesitant about selling phones with WiFi because they viewed it as a threat instead of an opportunity, much like newspapers did with text messaging. TiVo was fighting to regain some dominance in the DVR market, IBM was making an early foray into web-based office software suites, and an enterprising scammer bilked several people who should have known better out of millions of dollars by telling gibberish lies about moneymaking opportunities tied to a Google IPO. The press was still misreporting fines for distributing music online as fines for downloading, while the creator of a Japanese file sharing system was worryingly arrested for abetting copyright infringement. And, with the school year nearing its end, we got a handful of stories about students getting in serious trouble, and even arrested, for trying to hack their grades.

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    Independent Forensic Investigation Undermines Houston Cops' Narrative About Fatal Drug Raid

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    Everything about the botched no-knock raid by the Houston Police Department just keeps getting worse. Here's how everything has gone down so far:

    • The HPD said the raid was predicated on a tip that drugs were being sold in the house. In actuality, the "tip" was one of the now-dead resident's mother calling the police to tell them her daughter was using drugs.
    • A drug buy was set up using an informant. The informant claimed he had purchased heroin from the house, seen plenty of heroin packaged for sale, and several guns. No heroin was found during the raid and the heroin sent out for testing came from the console of an officer's vehicle.
    • The officers claimed one of the residents, 59-year-old Dennis Tuttle, opened fire on them, necessitating the use of force that left Tuttle and his wife of 20 years dead. The gun supposedly fired at officers was not included in the search warrant inventory.
    • The officers involved in the raid are now under investigation by the FBI and the DA's office. This has led to the dismissal of criminal cases the two officers were involved in.
    Everything about the raid points to a drug unit that loves to raid houses but no so much the due diligence that goes with it. This, shall we say… "zealous" enforcement of the law ended with the deaths of two drug users -- not dealers -- at the hands of cops who have proven to be entirely unreliable when it comes to the "investigation" part of drug investigations.Another investigation has been opened. An independent forensic review -- headed by a former NCIS supervisor -- of the crime scene has been conducted and the results are jaw-dropping. Not only do they indicate the officers' narrative of the raid is highly-dubious, it shows the Houston PD's forensic team is possibly no better at its job than the officers behind the botched raid.
    Hired by the relatives of Rhogena Nicholas and Dennis Tuttle, the new forensics team found no signs the pair fired shots at police — and plenty of signs that previous investigators overlooked dozens of pieces of potential evidence in what one expert called a “sloppy” investigation.“It doesn’t appear that they took the basic steps to confirm and collect the physical evidence to know whether police were telling the truth,” said attorney Mike Doyle, who is representing the Nicholas family. “That’s the whole point of forensic scene documentation. That’s the basic check on people just making stuff up.”
    The police claimed they started firing when the couple's dog charged at them as they came through the door. But the investigation shows the dog was killed in the dining room, more than 15 feet from the front door. The investigators also couldn't find anything confirming the officers' claims that Tuttle started firing at them as they came through the door. It also appears some of the officers were firing into the house before entering it -- another contradiction of the official narrative.
    Some of the bullet holes outside the house appeared at least a foot from the door, a fact that Doyle flagged as troubling.“You can’t see into the house from there,” he said, “you’re firing into the house through a wall.”
    It's not just evidence that appears to contradict the official story. The independent investigators also came across a ton of evidence that was never gathered by Houston PD investigators. Left behind were items tagged as evidence, the drugs the HPD drug unit was so hot and bothered about, and a bunch of bullets and casings that could help reconstruct what actually happened inside the house during the raid.As Radley Balko points out, this really doesn't look good for the Houston PD Forensics unit. It suggests two things -- neither of them positive.
    The most damning explanation is that the investigators were covering for the cops. A slightly less damning, but still pretty bad, explanation is that the investigators simply took the cops’ word about what happened and thus saw no need to carefully inspect the crime scene. The least damning explanation is that the cops got no special treatment at all. But that would mean that this is the way crime-scene investigators handle all homicide investigations. You know you’ve been roped into a scandal when the most flattering explanation for your behavior is that you aren’t corrupt, you’re merely incompetent.
    This is bad news for the Houston PD and everyone in their jurisdiction. This case has had zero positive developments since it first started making national headlines. A moratorium on no-knock raids might reduce the number of people killed by police officers, but it isn't going to fix the underlying issues that lead to the deadly raid -- and its horrendous aftermath.

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    Foxconn Still Trying To Tap Dance Around Its Ever-Shrinking Wisconsin Promises

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    If you hadn't noticed by now, Trump and Paul Ryan's once-heralded Foxconn factory deal in Wisconsin quickly devolved into farce. The state originally promised Taiwan-based Foxconn a $3 billion state subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. But as the subsidy grew to $4.5 billion the promised factory began to shrink further and further, to the point where nobody at this point is certain that anything meaningful is going to get built at all.Reports last fall detailed the ever-shrinking nature of the deal, highlighting how Foxconn was using nonsense to justify its failure to follow through, showing that while the company hadn't built much of anything meaningful in the state, it was still routinely promising to deploy a "AI 8K+5G ecosystem" in the state to somehow make everything better. Those empty buzzwords were accompanied by the promise of fully staffed "innovation centers" around the state.Back in March, reporters visited many of these innovation centers scattered around Wisconsin and found them to be largely empty. Apparently not liking the bad press, Foxconn executives like Alan Yeung attempted to claim that these centers were in fact not empty and that the reports contained a lot of inaccuracies." But according to locals in the state these supposed innovation centers are, you'll perhaps be shocked to learn, still empty:

    "One month after Yeung's comments and promise of a correction, every innovation center in Wisconsin is still empty, according to public documents and sources involved with the innovation center process. Foxconn has yet to purchase the Madison building Yeung announced, according to Madison property records. No renovation or occupancy permits have been taken out for Foxconn's Racine innovation center, though a permit has been taken out for work on the roof of another property Foxconn bought for smart city initiatives. There has been no activity in Foxconn's Green Bay building, either."
    So what are Wisconsin residents getting for their whopping $4.5 billion in taxpayer-fueled subsidies? It's still not clear. There are thoughts that the state may see some kind of factory, but it's going to be a far cry from what was originally promised, and there are still questions about whether the state will see even a fraction of the jobs that were originally promised:
    "Even if Foxconn does build an LCD facility, many questions remain. The company's current plan is to build a far smaller factory than it initially promised, one that will employ 1,500 people rather than over 10,000. The shortfall leaves both Foxconn and the state in a tricky position. Given the slower pace of hiring, it may be difficult for Foxconn to reach the hiring quotas needed to receive state subsidies. State and local governments, meanwhile, have been building infrastructure and acquiring land based on the original, far more ambitious plan.
    Foxconn still seems to be claiming it will be hiring 13,000 workers in the state, but it's getting harder and harder to find anybody who actually believes them.

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    Disney Wins 'Pirates Of The Caribbean' Copyright Suit As Court Declares You Cannot Copyright Pirate Life

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    It's no secret that Disney is almost solely responsible for the wild expansion of copyright law that has occurred over the course of decades. In addition to the near constant lobbying for longer copyright term lengths and a heavy-handed approach to enforcement, Disney has also found itself attempting to assert copyright in areas of broad ideas rather than literal copying. Perhaps to some, then, it was a shot of schadenfreude to watch Disney face its own lawsuit brought by screenwriters over its Pirates of the Caribbean franchise. Way back in 2000, two writers and a producer pitched a script about pirate Davy Jones to Disney, which the company ultimate rejected. In 2004, Disney released the first of its own Pirates movies starring Johnny Depp.But no amount of just desserts ought to change the legal principles in copyright law, so it's still a good thing to see that the court has struck down the copyright suit on the grounds that the scripts aren't actually similar, aside from some non-protectable ideas, rather than explicit expression. We can start with the purported similarities brought by producer Tova Laiter, which should immediately stand out to you as not protected by copyright law.

    The writers and Laiter said the movies, like the screenplay, diverged from the traditional canon by portraying pirates as humorous, good men rather than terrifying brutes. They also claimed both works featured supernatural cursed, skull-faced pirates, and that actor Johnny Depp’s Captain Jack Sparrow character was substantially similar to the screenplay’s Davy Jones.But the “single purported similarity” between the widely varying plots—cursed pirates—was an idea that flows naturally from a basic plot premise and therefore unprotectable, the judge said. The dark mood driven by pirate battles and sea monsters also stemmed naturally from the pirate premise, Judge Consuelo B. Marshall said.
    These are ideas and concepts, not actual expression, which is why the court ruled against the plaintiffs. Broad ideas, such as making pirates funny and likeable, are obviously not the sort of thing that copyright is designed to protect. Were Disney to have lifted the names and descriptions of pirates from the original screenplay, perhaps there would be a valid case. Minor deviations from well-worn pirate tropes, however, don't work for a copyright suit.And, while the plaintiffs attempted to draw comparisons between Jack Sparrow and their own Davy Jones, the court does a fairly thorough takedown in its own analysis.
    The court dismissed comparisons between Sparrow and Jones, stating “cockiness, bravery, and drunkenness are generic, non-distinct characteristics which are not protectable.” The screenplay’s clean-shaven, ponytail- wearing Jones, who gave up pirating to raise orphans with a love interest, departed significantly from the unshaven wild-haired Sparrow who never renounces piracy or has any comparable relationships, Marshall said.The court also discounted alleged copying of setting, dialogue and other elements as either overstated or a bid to protect the unprotectable.
    It's not easy to root for Disney in a copyright case, frankly. But the alternative -- rooting for a plaintiff that wants to assert copyright over generic genre elements -- is a complete non-starter.

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    The Subtle Economics Of Private World Of Warcraft Servers: Anarchy, Order And Who Gets The Loot

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    "I got a recording. I got a recording of this idiot." A Scandinavian-accented voice declares over voice chat. "Can someone tell the people from [the other player's guild] what he just did?"That was the subject of a Reddit post giving a "daily reminder that Sharphealz is a ninja." Instead of shuriken-wielding shadow warriors, "ninja" is here slang for a thief of valuable in-game items. The above video was taken from a private World of Warcaft (WoW) server, emulating the 2006 iteration of the popular online game, soon to be officially re-released by Blizzard as World of Warcraft Classic. Yet, the bootleg version of the massively-multiplayer icon is a special beast beyond just game mechanics. Some of its core social dynamics serve as excellent - if accidental - microcosms of real-world phenomena.These servers are third-party clones of proprietary software, and hence are of questionable legality. Taking advantage of spotty IP protections, most are hosted overseas - in Russia, for example. They are typically organized into non-profit "projects," or amateur initiatives to create versions of the 2006 iteration of the game. Each private server project hosts at least a couple of "realms" or instances of the game world in which players can interact.Most large private servers carry thousands of people, and tend to be radically weighted towards a single primary realm in population. Players from around the world fight, banter, organize and develop a virtual social system in their free time. It is a fairly close-knit group, but only lightly moderated by volunteer Game Masters. Players themselves must play a role in this community moderation if they wish to coexist productively.The mixture of old-school WoW's original quirks, private servers' laissez-faire ethos, and their small but dense populations render them petri dishes for "natural" social experiments. At issue is how near-total strangers are able to make their own rules and institutions, and cooperate effectively and on the fly for common rewards.Servers may have their share of delinquents - okay, a large share - but the anarchy is more orderly than you'd anticipate, given the difficulty of developer-side rule enforcement. In fact, the conditions that allow for unplanned cooperation among strangers are extremely important topics among the big debates in social sciences and public policy. Political scientist Mancur Olson identified problems in the real world in which individuals' conflicting interests impede common goals as "collective action problems." Concern with such dilemmas dates back to philosophers David Hume and Thomas Hobbes.One of the largest and most consequential collective action problems is the "Player vs. Environment" (PvE) raiding scene in the game. Old-school WoW has several large "raid" dungeons pitting 20 and 40-player teams against powerful computer-controlled monsters. These encounters are typically the most difficult end-game challenges, but also the most rewarding. Not only is the loot found within among the best around, but "raid gear" confers a sort of prestige, and obviously, we all want to saunter around Ironforge with shinier stuff than the next guy.So there's huge incentive to raid, but you might have to spend often upwards of six hours in the crucible of high-end PvE with 39 other people, many of whom desperately want the same valuable stuff you do. They are also probably total strangers.That's basically what Blizzard left us with in 2004, and it sounds like a powderkeg of potential disputes over who deserves loot, or whom is at fault for getting everyone killed. Yet, players have overcome these challenges, using a variety of creative avenues.With nobody officially in charge at the outset, leaders come out of the woodwork to direct these complex operations. Some raid leaders do it for the joy of accomplishing something difficult or for the bragging rights provided by a "server first" boss kill, while some experienced players may behave entrepreneurially by putting together raids for in-game money. In a scenario of mutual efforts but uncertain, scarce rewards, one of the first things that must emerge is a rule system. This is a de facto necessity - even "first-come-first-serve" is a rule system. Since the infancy of this gaming genre, enterprising players have invented various systems of their own, with no one system being "official." It's a marketplace of institutions in which players converge on the rulesets that that benefit them most.Eventually, a few dominant systems rose from the massively-multiplayer gaming community. The iconic DKP system is a points-currency scheme, where players receive "Dragon Kill Points" for participating in raids, which they can save or spend in player-organized auctions for loot, whereas "gold-bid" systems use in-game currency (the proceeds of which often provide income for those "entrepreneurial" leaders).Most raids, especially informal pick-up-groups, tend towards "Need Before Greed" (NBG) systems. Players can roll the virtual dice against each other for items their characters genuinely need for advancement, as opposed to items that are more of a luxury. Since what constitutes real need is frequently disputable, secondary rule systems dictating priority in cases of competing claims on a given item may crop up in NBG raids as well.Sometimes new, influential raiders can introduce rule schemes. On one server, the status quo consisted mostly of Need Before Greed and auctions, but after a merge with another server, a large influx of experienced raiders became the new kids on the block. Having many successful dungeon runs under their belt, they imported the "Wishlist" system, in which each raider may reserve one item for themselves. If multiple players reserve the same item, they then roll the dice on it. The efficiency of this idea soon became obvious, and within a few weeks Wishlist (and the players that imported it) took over the raiding scene.Joining a raid group is a significant investment, in time, effort and in-game resources. Players are putting a lot on the line, and expected rewards can be highly uncertain. Given this investment risk, players have sought out means to ensure not only the use of fair loot rules, but institutional mechanisms to make sure they can complete the dungeons regularly and smoothly. Hardcore raiders' best tool for this is the game's Guild system, offering built-in organizational features such as a common chat channel and active roster of members. A competent raiding guild offers members a chance to clear dungeons in an organized manner with skilled leadership, and to win items in a loot system that is reliable and fair.Like "Sharphealz," the ninja looter in the video, there is a strong incentive to abscond with others' items, or to just coast on everyone else's efforts in the heat of battle. To hedge against this behavior, guilds offer ingredients to reduce the likelihood of cheating: longevity and reliability, accountability, as well as simple bonds of friendship. Guilds frequently expel members who violate rules or behave boorishly, and a player without a guild is one at a big disadvantage. A player can get to know and care for their guildmates' welfare, and everyday social interaction builds rapport between members. It's tough enough to be kicked from a guild, tougher still to lose your in-game friends.The accountability mechanisms within guilds rely heavily on reputation, much like within the broader game community. Since the vast majority of players are stuck on the same realm, and the community is fairly small, informal social sanctions provide punishment for rulebreaking. Sharphealz' widely shared video provides documentation of his crimes, and it cemented the player's reputation as a troublemaker for quite some time. It is not uncommon to hear public shaming in the game's chatbox, marking various players as cheaters or slackers. A person with a bad reputation doesn't get invited to groups - a big handicap in an inherently collaborative environment. Indeed, many hotly contest public accusations for this reason.There are, of course, "troll" players who thrive on infamy. The original ninja looting video was recorded by the thief himself. Indeed, a side effect of this melting pot of a server is that although players may cooperate to achieve certain gameplay goals, large strains of animosity and angry flare-ups run through the community. Many raiding guilds keep "blacklists" of prohibited players for this reason, while others collapse from their own internal strife. Some particularly frustrating raid encounters are wryly dubbed "guild-breakers" for their propensity to spark conflict.What is clear from the common problem of raid organization is that players can figure it out naturally, overcoming complex challenges of focus and coordination as a hobby. They jerry-rig institutions to provide accountability and avoid disputes, as well as to bring people together in the first place.The power of community networks, anticipation of future opportunities, and high-value payoffs influences our behavior on Earth in myriad ways, and there is no reason why it would be otherwise on Azeroth.Anne Hobson is a program manager at the Mercatus Center at George Mason University. Leo Plumer is an MA Fellow at the Mercatus Center at George Mason University.

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    DC Legislators Push FOIA Amendment That Would Shield Government Emails From FOIA Requesters

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    Buried at the bottom of Washington, D.C.'s 2020 budget report [PDF] is a gift to legislators who value opacity. The so-called "Freedom of Information Clarification Amendment" would make it much more difficult for requesters to obtain the documents they're seeking.The amendment to the district's FOIA law would require requesters to know exactly what documents they're seeking when they request them. It's a nearly-impossible bar to hurdle -- one that turns FOIA requests into games of Battleship.

    “Reasonably describing” means describing with particularity the public records requested by including the names of the sender and recipient, a timeframe for the search, and a description of the subject matter of the public record or search terms to allow a public body to conduct a search and review within the time prescribed pursuant to section 202(c).”.
    What this means is requesters seeking communications would need to know both the sender and recipient of emails they've never seen or the agency can reject the request entirely. The legislator pushing this says it will stop "fishing expeditions." But requests are sometimes necessarily "fishing expeditions" because requesters are working blind. They don't have access to these communications and have no way of knowing how many parties discussed the subject at hand. If this passes, D.C. government agencies will be pressing the "reject" button with increased frequency.If there's anything transparent here, it's the self-interest of the legislators pushing the amendment. One member of the D.C. Council -- a Democrat like the councilmember who wrote the amendment -- has been the subject of unflattering news coverage based on FOIA requests.
    In March, for example, The Washington Post reported that D.C. Council Member Jack Evans (D-Ward 2) had repeatedly sent business proposals to potential employers in which he offered his connections and influence as the city’s longest-serving lawmaker and chairman of the Washington Metropolitan Area Transit Authority. Evans made those pitches using his government email account, and journalists obtained them through the District’s FOIA law.[...]Last year, journalist Jeffrey Anderson, also using documents obtained through FOIA, reported that Evans’s son was offered an internship by a digital-sign company that would have benefited from legislation Evans advanced at the council.
    Legislators' own dishonest dealings have often resulted in calls to change public records rules to provide more opacity. Claims are made about "fishing expeditions" and protecting the private lives of legislators but, in reality, the real goal is protecting government employees from the people they serve.

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    Section 230 Keeps The Internet Open For Innovation

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    Sex-trafficking victims in California are suing Salesforce, claiming the company helped the now-defunct website Backpage, a classified ads website, in enabling prostitution. Whatever your view on the harm to the plaintiffs, this suit could hurt American innovation. By holding Salesforce accountable for the actions of its customer, the suit opens the door for other innovators to be held responsible when users post illegal content - a dangerous precedent in today's internet era.The question of who is responsible for online content is a difficult issue. Intermediary liability protection is the common-sense idea that internet platforms are not responsible for content posted by users. Enshrined in Section 230 of the 1996 Communications Decency Act, this law allowed American companies to be the innovators of the internet. In fact, the internet as we know it functions because of Section 230. Without Section 230, any site hosting user-generated content would have to screen every submission to avoid lawsuits.On a practical basis, doing this in real time would be impossible due to the sheer amount of content created: Twitter alone hosts 350,000 tweets per minute; 200 billion tweets per year. Similarly, YouTube would be liable for any of the content its 1.9 billion monthly users might upload. If any single user post could lead to legal action against the social media platform, that platform would shut down.Today's internet experience would be virtually impossible.And so Section 230, the cornerstone of today's innovative internet, was considered inviolable - until 2018, when Congress was approached by groups representing victims of sex trafficking (and quietly backed by Hollywood studios, the hotel industry and others who saw the chance to weaken online competitors that were taking their customers and disrupting their businesses). While some groups advocating for sex-trafficking victims opposed it, many of these proponents pushed FOSTA/SESTA into law, which allows trial lawyers to sue social media sites that facilitate sex trafficking - and, although undoubtedly well-intentioned, the bill takes aim at Section 230.Though (oddly), the Salesforce lawsuit doesn't invoke FOSTA/SESTA, the law's hastily written language was so broad and vague it could potentially impose liability to any website with a comments section. And immediately, internet services began pulling down popular forums featuring consumer-generated content. Other websites eliminated sections or imposed broad filters. Congress made the internet experience less rich for users and more difficult for entrepreneurs, all while doing very little to protect actual victims of sex trafficking.For all the damage done to free speech online, FOSTA/SESTA has had little upside. Backpage was seized by the FBI before the bill was signed into law, proving that FOSTA/SESTA was not necessary to take down wrongdoers. More, FOSTA/SESTA forced sex traffickers underground, making it harder for authorities to identify and rescue victims.Fortunately, our nation knows how to choose freedom over fear and innovation over regulation. Consider the successful SOPA/PIPA protests of 2012, which pushed back against overbroad copyright laws that would have crushed the burgeoning digital economy. Thanks to the protests, websites with user-generated content continue to flourish today.Section 230 is the legal foundation of the internet - not a shield for criminal liability. But it remains an important protection to encourage entrepreneurs and innovators to start internet businesses. We can't allow misguided rulemaking and ruinous litigation to discourage that. We must keep the internet open for innovation.Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S.trade association representing more than 2,200 consumer technology companies, and a NewYork Times best-selling author. He is the author of the new book, Ninja Future: Secrets toSuccess in the New World of Innovation. His views are his own.

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    Vox Admits It Got Section 230 Wrong, Fixes Its Mistake

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    Last week we wrote about how annoying it was that major media publications were misrepresenting Section 230 of the Communications Decency Act, and suggesting -- completely without merit -- that the law was designed to keep platforms "neutral" or that they were mere "pass through" vehicles, rather than actively engaged in moderation. We pointed out that online trolls and grandstanding politicians were making this incorrect claim, but it was not an accurate statement of the law, and the media should know better. In our comments, some people called me out for not suggesting that the media was being deliberately dishonest, and in response I noted that there wasn't any evidence of deliberateness from most of them (not so much with the trolls and especially grandstanding politicians like Ted Cruz, who have been told, repeatedly, that they are misrepresenting CDA 230). I hoped that it was just a mistake that would be corrected.Perhaps surprisingly, the author of the Vox article that I called out, Jane Coaston, did exactly that. After a few others called out her article, including Harvard's Jonathan Zittrain, Coaston has now apologized and done a massive rewrite on the original article to make it more accurate:

    In this era when so many people seem to want to dig in and defend incorrect things, I think it deserves recognition and kudos when people (especially reporters) can admit they made a mistake and to then correct those mistakes.

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    Chicago Cubs Successfully Oppose Iowa Man's 'Cubnoxious' Trademark; Court Cites Obnoxious Cubs Fans

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    Since 2016, when the Chicago Cubs became magically relevant in baseball again, the team has also become relevant in intellectual property discussions. The Cubs have gone to war with the street vendors that have long set up shop near Clark and Addison, and the team has been party to an ongoing battle with roughly all the uses of the letter "W" in commerce.But as the team's lawyers appear to have been invigorated by its on the field success, that isn't to say that every single trademark dispute it initiates is one in which it's the bad guy. For instance, one Iowa man decided to trademark the term "Cubnoxious", but apparently didn't have any actual plans to use it when the Cubs came calling.

    Ronald Mark Huber applied to register the word mark in 2016 in class 25 for shirts. In response, the Cubs asserted a number of marks for the team name and logo for various goods and services, including clothing. In its decision, issued on Friday, May 3, the USPTO’s Trademark Trial and Appeal Board (TTAB) ruled that Huber had failed to provide sufficient evidence of intent to use the mark at the time of filing the application.Apart from the trademark application itself, Huber did not provide any documentary evidence of his intention to use the mark other than an affidavit, which stated his “plan to use the mark in commerce for the general public”.
    So, yeah, this guy couldn't bring the goods when the court asked what he planned on doing with the trademark. Now, I will say that, had this guy had an actual plan, the Cubs opposing the mark on the grounds of public confusion would seem pretty silly. What would the claim be, that the Cubs would call their own fans obnoxious? That obviously isn't something a team is going to call its own fans.The USPTO decision, however, appeared to have no such qualms about such references.
    The U.S. Patent and Trademark Office's Trademark Trial and Appeal Board said the Cubs offered "convincing" evidence its marks were strong, going back to the early 1900s, when Hall of Fame infielders Joe Tinker, Johnny Evers and Frank Chance wore Cubs jerseys.It also said "Cubnoxious" was already associated with some Cubs fans, citing media reports, Twitter posts and even a Yelp user who complained about having to avoid "Cubnoxious Drunkards" in a Chicago park.
    I know Cubs fans. I am one. The USPTO is, for once, spot on.

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    And Scene: Suburban Express To Shut Down In Mere Months

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    To take you back through the entire history since Suburban Express made it onto the Techdirt radar would take more words than I care to spend, but we'll do the short version. Suburban Express runs van lines between Chicago and a couple of local universities. It also, somewhat oddly, regularly goes to war with its own customers, as well as the wider internet. The internet side is mostly well-worn assholery: bitching about review sites, bitching about Reddit, and threatening everyone in between with legal actions. Where the company blazes new trails is when owner Dennis Toeppen gets arrested for harassing critics and customers online, sends out blatantly racist advertisements, and gets itself sued by the Illinois AG for roughly all of the above.This whole saga of stupid has featured guest spots like government employees, law enforcement officers, and even Ken "Popehat" White. But, as all such sagas go, it had to eventually come to an end. And that end comes in the glorious form of Suburban Express shutting down.

    Local bus company Suburban Express shut down all operations Tuesday, according to a court filing from owner Dennis Toeppen posted late in the day.Suburban Express' website was unreachable Tuesday afternoon except for a refund submission form, as required by the consent decree Toeppen reached last month with the Illinois Attorney General's Office.Toeppen is also shutting down his other transportation companies, Allerton Charter Coach and Illini Shuttle.
    So, what led to this shut down, you may be asking yourself? Did Toeppen grow as a person and realize that he is not the sort of fellow who should be running a business? Is there some plan to shut down and build up something new, something that will be more kind, human, and inclusive?Nope, this is all about trying to get out of the consent decree the resulted from the Illinois AG lawsuit.
    He claimed shutting down his companies should "render most of the consent decree moot," though he also said the $100,000 payment he's required to make to the attorney general as part of the consent decree will be made around May 15.The AG's office is reviewing how the closures will affect enforcement of the consent decree, spokeswoman Annie Thompson said in a statement."Although Mr. Toeppen has informed the court that Suburban Express has ceased operations, the defendants are still obligated to comply with the consent decree," she wrote. "Our office is currently reviewing Mr. Toeppen's filing to determine its impact on the consent decree and Suburban Express customers."
    So Toeppen is still playing games that puts him squarely at odds with the AG's office and the public interest. This becomes all the more obvious when we examine Toeppen's comments in the filing itself. In those comments, he makes it clear that he's willing to do everything he can to burn every bridge, and the public good in general, on his way down.
    In his filing, Toeppen didn't shy away from taking a parting shot at his competition."We have decided not to facilitate or aid in replacement of Champaign-Urbana service," he wrote. "Instead, we prefer to sit on the sidelines and watch as competitor's fares rise, frequency falls, and passenger injuries and fatalities increase."
    So, yeah, Toeppen is still going to Toeppen.In the end, the fact that Suburban Express is shutting down in this way does serve a positive purpose. That purpose would be as a warning for other businesses that want to go on anti-consumer, anti-internet tirades simply due to legitimate complaints about the business itself and the people running it. Thin skin is not an asset in any part of life, but it must certainly be least useful when running a business.Maybe if Toeppen had bothered treating people like human beings, he and his business wouldn't have ended up in the business gutter.

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    Facebook's 'Please Regulate Us' Tour Heads To France

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    On Friday, Mark Zuckerberg went to France, just in time for the French government to release a vague and broad proposal to regulate social media networks. Similar to Zuckerberg's pleas to Congress to ramp up its regulation of the company (and because he knows that any pushback on regulations will likely be slammed by the world of Facebook-haters), Zuckerberg tried to embrace the plans.

    "It's going to be hard for us, there are going to be things in there we disagree with, that's natural," Zuckerberg said. "But in order for people to trust the internet overall and over time, there needs to be the right regulation put in place."
    He also said that he was "encouraged and optimistic about the regulatory framework that will be put in place."What is that regulatory framework? Well, it's pretty vague. It also has PowerPoint artwork that looks like it was designed decades ago by someone who has no business being anywhere near PowerPoint:
    To its credit, the plan does recognize that "freedom of expression" is a key value that needs to be protected, as well as freedom for innovation, but then also says those need to be balanced with a protection from harm. The key issue, as we've seen in other such plans is that it creates what people are referring to as a "duty of care" for social media -- requiring the company to "protect" users and allows regulators to somehow step in if they feel the company isn't succeeding (as if that won't be abused).The plan also sets up a regulator who will be tasked with overseeing how social media platforms operate. There is also some hand-waving, suggesting that these rules will only apply to platforms of a certain size, which lets them argue that it won't impact or discourage startups, without recognizing how it might alter the overall market as companies seek to avoid whatever threshold rules put them into the "regulated" category. Also, much of the plan does focus on increasing transparency, which is a good thing, but how that gets worked out in practice is a really big question.The issue in all of this is the same as we've discussed before: Facebook can deal with these rules. It's not clear if other companies can. In effect, the rules might lock in Facebook and this particular paradigm of centralized, siloed social media as what must exist going forward. And that's a problem. Also, trusting regulators to handle these issues in a reasonable way should raise some eyebrows. For people who hate Donald Trump, how would you feel if he were in charge of regulating what sort of "duty of care" Facebook had to take concerning allowing or disallowing certain speech? Or if you like Trump, then how would you feel if, say, Hillary Clinton or AOC were in charge of such things?In short, who the regulator is can have a pretty massive impact here, and there seems to be little in these proposals to consider that. It's not surprising that Facebook seems resigned to "support" these kinds of proposals. The company is such a target right now that any pushback would probably lead to even worse rules. And, as mentioned, the company is well aware that it can probably weather any such rules, while any potential competitors will probably be hit much harder by them.

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

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    Five Years AgoThis week in 2014, the push for one of two NSA reform bills went somewhat sour as the better bill was watered down so much it got the support of NSA apologists and passed out of the House Judiciary Committee. Meanwhile, the new NSA boss was making extreme understatements about the agency's situation while the former boss (who was also setting up a cybersecurity consulting firm) was defending everything he did. In the UK, at least, parliament finally admitted Snowden's revelations revealed that oversight of the GCHQ was broken.Ten Years AgoThis week in 2009, anti-Google hysteria reached a fever pitch with comparisons to the Taliban, a grandstanding attorney general was threatening Craigslist's management with criminal charges, and pharma giant Merck was caught having created a fake science journal to praise its products. Some folks were making wild estimates about an unknowable number to support their copyright agenda, claiming the leak of the Wolverine film cost millions at the box office, the RIAA was demonstrating the meaninglessness of its recent promises by continuing to file lawsuits, and we saw the formation of a famous copyright nonsense triangle when Cat Stevens stepped in to say Coldplay copied him, not Joe Satriani. We also took a look at all the ways Italy had been demonstrating a very troubling view of the internet.Fifteen Years AgoThis week in 2004, while lots of people were grappling with the unresolved legal implications of WiFi, one smart commentator was cluing in to the fact that camera phones provided the public a way to fight back against surveillance by watching the watchers and filming things like, say, police misdeeds. The mess that was (and is) the patent system was getting some mainstream media attention, as was the ongoing failure of record labels to adapt to the internet (them being too busy suing a grandmother who decided to fight back). The Google IPO had everyone excited about the company (enough to start gobbling up every domain name with "Google" in it), while a meaningless but amusing clerical error led to Microsoft patenting a new breed of apple.

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    Broad Coalition Tells Congress To Bring Back The Office Of Technology Assessment

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    For many, many years now we've been talking about why Congress needs to bring back the Office of Technology Assessment that existed from 1972 until 1995 when Newt Gingrich defunded it as part of his "Contract with America" which apparently (who knew?) included making Congress more ignorant and less informed about technology. Year after year, some in Congress have proposed bringing back the OTA, but it keeps getting voted down. Just recently, we had two Congressional Representatives -- Rep. Mark Takano and Rep. Sean Casten -- write a piece here at Techdirt arguing why we need to bring back the OTA.And it might actually be happening. While Gingrich defunded the OTA in 1995, the law creating it is still on the books. Congress doesn't need to pass any new law to bring it back, it just needs to fund it again. And, perhaps surprisingly, the House put forth an appropriations bill that includes $6 million towards reviving the OTA.Earlier today, a very broad coalition of organizations and individuals (including our sister organization, The Copia Institute) sent a letter to the Senate urging it to support this small level of funding to better educate themselves on technology and technology policy issues. This is not a partisan issue in the slightest (as should be obvious from the coalition of signatories on the letter). This is an issue about spending a very small amount of money to make sure that our legislators actually know what the fuck they're talking about when they're trying to understand and regulate around technology issues.

    On behalf of the undersigned organizations and individuals, we write to express our concernthat Congress does not have sufficient capacity to tackle 21st century science and technologypolicy challenges. Accordingly, we urge you to prioritize efforts to augment this institutionalcapacity, including providing funding for the Office of Technology Assessment (OTA), as part ofthe fiscal year 2020 Legislative Branch Appropriations bill.The Senate has played a leading institutional role in promoting science and technologycapacity in Congress. We note with favor the recently created Science, Technology Assessmentand Analytics (STAA) team inside the Government Accountability Office, and its expandingcapabilities to serve Members of Congress with expert advice and analysis. We also lookforward to the forthcoming report from the National Academy of Public Administration laterthis year.But OTA and STAA have different comparative advantages: the former in foresight andemerging technologies, and the latter in oversight and evaluating federal government programsand expenditures. Congress must have both these capabilities to meet the ever-increasingdemands on its oversight and legislative responsibilities.
    Hopefully, this time, Congress will pay attention, and proactively choose to better educate themselves.

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    Electronic Warrants And Roadside Blood Draws Are The New Normal For DUI Checkpoints

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    A few years ago, the National Highway Traffic Safety Administration brought down the heat on itself by teaming with local law enforcement to set up roadside blood/saliva draws. The plan was to compile data on impaired driving, but the "voluntary" sample stations were staffed by cops who flagged motorists down, leading many to believe this was just another DUI checkpoint.Now that the NHTSA is out of the picture, local law enforcement is taking care of this itself. Only it very definitely is mandatory and any data-gathering would be incidental to the real purpose of these checkpoints: arresting impaired drivers. It's 2019 in America and we can only now proudly say we're the Home of the Roadside Blood Draw.

    It was about 6:30 on a Friday night in January when Phoenix Police Det. Kemp Layden pulled over a white Jeep Cherokee that was speeding and weaving in and out of its lane.The 47-year-old driver spoke slowly, his eyes were red and watery, and his pupils were dilated. The inside of the Jeep reeked of marijuana, and the driver failed a field sobriety test, which includes walking heel-to-toe and standing on one leg.He told the officer he had smoked marijuana a few hours earlier and taken a prescription sedative the night before, police say. The man passed a portable breath test — he wasn’t drunk. But Layden suspected he was impaired by drugs, which the test can’t detect.A DUI police van equipped with a special chair and table for blood testing pulled up. The man refused to submit to a blood draw. So Layden grabbed his laptop and filled out an electronic warrant, or e-warrant, which was transmitted directly to a judge.Within 10 minutes, Layden had a search warrant. Another officer drew the man’s blood. A lab report later confirmed he had active THC and a sedative in his blood.
    Roughly 80 minutes after he was stopped, this driver had traded his vehicle for a DUI citation.This will become more common as time goes on. With the legalization of marijuana use in several states, there's a new form of impairment that can't be caught with a breathalyzer. While there's definitely a law enforcement interest in limiting impaired driving, there's also a lot of fiduciary pressure to continue to bust drivers generate revenue even when the driver's drug of choice isn't alcohol... and the driver may not even actually be impaired.This is leading to two things: an increase in electronic warrants sent at odd hours to judges who will likely approve any boilerplate sent from a DUI checkpoint... and a whole bunch of minimally-trained officers running roadside blood drives out of police vans.The good news is some training is actually happening. The bad news is certified training is the exception, not the rule.
    At least nine states have law enforcement phlebotomy programs: Arizona, Indiana, Maine, Minnesota, Ohio, Pennsylvania, Rhode Island, Utah and Washington state, and Illinois is starting one, according to the national highway safety agency.
    That doesn't mean every ad hoc blood draw is a communicable disease vector staffed by officers using your arm to rack up OJT hours. In Arizona, for instance, officers must have 100 hours of training before they perform blood draws and must perform the job in OSHA-approved environments. But that doesn't mean every agency is as demanding as the ones in Arizona are, so the experience may be far more unpleasant than a normal DUI checkpoint.
    [S]ince officers aren’t in the healing profession, [defense attorney Donald] Ramsell said, they’re not concerned about pain reduction or hitting a vein. He cited the case of a client arrested in Arizona who had a blood draw in a police DUI van.“The officer poked him at least 15 times, and because he has a medical condition it was next to impossible to draw enough blood to fill a 10-cc tube,” he said, referring to the size of the tube in cubic centimeters. “Those knuckleheads just kept poking the hell out of him. They only got 3 ccs.”
    The only thing keeping this from being even worse is a 2016 Supreme Court decision. Without it, these blood draws wouldn't even have a hasty judicial scrawl at the bottom of a dozen pages of boilerplate authorizing Officer Nurse to take blood from drivers' arms. Meanwhile, officers are touting the speed of this new dystopian feature as a win for the public, since the guilty parties will be able to processed into the criminal justice system in less than half the time.
    According to Utah Highway Patrol Trooper Janet Miller, a certified phlebotomist, “It’s been a great tool not only for law enforcement but for the individual placed under arrest.“Instead of spending three to six hours with the officer, it’s been cut down to one to two,” she said. “They can get to the jail sooner and get out sooner.
    Win-win, I guess.

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    Apples Only For Apple: Apple Opposes A German Bicycle Path

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    Apple, the company, has long made it known that it believes that only it can use an apple, the fruit, in a corporate logo. This rather incorrect belief has led the company down some rather silly trademark roads, including disputes with all kinds of companies in unrelated industries, as well as disputes with some political parties for some reason. It's all been delightfully insane and all led by Apple's insistence that it has trademark rights that are far more broad than is the reality.But just when you think it can't get more absurd, Apple goes ahead and files an opposition and sends out cease and desist notices...over a German bicycle path. I fear some explanation may be necessary.

    Apple recently objected to the logo of a new German cycling path in an appeal filed with the German Patent and Trademark Office, according to German outlets General-Anzeiger Bonn and Westdeutscher Rundfunk.  Apple reportedly takes issue with the logo's green leaf and supposed "bitten" right side, attributes the company believes are too similar to its own logo.The logo, registered with the German Patent and Trademark Office in 2018, was designed for a new cycling path named Apfelroute that is set to open in the Rhine-Voreifel region of Germany on May 19. Rhine-Voreifel Tourism has already used the logo on uniforms, bike racks, cycling maps, banners, signposts, and more.
    So, a green leaf and a bitten right side of the logo sure do sound specific. Perhaps you're already conjuring some picture of the Apfelroute logo in your head, imagining there to be some reasonable impression possible of likeness. Maybe you're thinking, hey, no way would Apple's lawyers fire off these notices to a German bike path unless this was really egregious, right?Here's the logos. You tell me.
    Any sane viewing of those logos should not result in any confusion, plain and simple. And that's just on the logos, without any context. When you add into the equation that trademark laws generally protect specific marks within specific industries and, in this case, the two "competitors" are one of the largest consumer electronics companies in the world and a local German tourism organization for a bike path, then we can put this whole story flatly in the category of the absurd.Yes, some will take issue with the specific shape and angle of the leaf on the top of Apfelroute's apple. But if that's the best you can do concerning to logos that are so plainly different, such complaints say more about you than they do the logos themselves.

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    Court Says No One's Responsible For Detainee Who Committed Suicide While Jailers Crafted 'Punisher' Posters

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    Via the Fifth Circuit Court of Appeals comes a depressing tale about how cheap life is in jail, even for those who haven't been convicted of a crime.It starts with a family argument. Jose Luis Garza was intoxicated and arguing with his brother. His mother expressed her fear for his safety to the Donna police officers she had called, stating she "feared for his life" and was "afraid he would hurt himself." The officers provided the only assistance they knew how to give: they arrested Garza, charging him with "assault by threat."Garza was taken to the PD's holding facility -- not a prison or jail but somewhere for cops to stash arrestees until they were moved to an actual prison/jail. Garza was placed in a cell with a camera, but soon after being put there, he blocked the camera. The person monitoring the cameras did not notice it had been blocked. This DPD employee claimed watching the cameras wasn't her job once the jailers started their shifts.The jailers started their shift at 8 a.m. They were required to check on detainees every hour. These officers -- Esteban Garza and Nathan Coronado -- may or may not have heard Jose Garza banging on his cell door to get their attention. The record simply doesn't show. The jail log shows a cell check was performed at 8:10 a.m., but there's reason to doubt this check was ever performed. More on that in a bit.When the jailers arrived, they began the important work of… making posters. From the decision [PDF]:

    After that point, the jailers worked on signs that DPD’s police chief, Ruben De Leon, directed them to put up in the jail. One read “Welcome to Donna Hilton,” and another showed the logo of the Punisher, a comic-book character known for carrying out vigilante justice.
    This is what the jailers were doing instead of being jailers and paying attention to their detainees. This is the result of their poster-making efforts.
    Occupied with the signs, the jailers missed that Garza had hanged himself, and it took the chance arrival of agents from U.S. Immigration and Customs Enforcement (ICE) for Garza’s suicide to be discovered. The ICE agents had arrived at 8:40 AM and found him at 8:49 AM. It was unclear how long he had been hanging.
    Let's just pause for second and marvel at how awful you have to be at your job for ICE agents to be the nominal heroes of this tragic story. These would be ICE agents, employed by ICE of #AbolishICE fame. ICE agents aren't known for their warmth, competence, or ability to treat anyone they come into contact with as human beings. Fortunately for these ICE agents, the detainee was already dead, preventing them from having to dip into their minuscule reserves of empathy.But if ICE hadn't shown up, Garza may have been left hanging for hours. Sure, jailers were required to perform hourly cell checks, but the chief wanted posters made, and that took obvious priority. The most important thing was to let detainees know they were being mocked ("Welcome to the Donna Hilton") and in the custody of law enforcement officers who view a comic book vigilante killer as role model.And about that hourly welfare check… here's what actually happened. A footnote in the decision indicates the jailers never checked on Garza and their first encounter with him occurred after ICE agents showed up and discovered his dead body.
    Jailer Garza added the 8:10 AM check to the jail’s cell-check log after Garza’s death and after the Texas Rangers concluded their post-incident investigation. The actual occurrence of the check is thus a sharply contested fact issue.
    This indifference to the condition of their detainee naturally resulted in a lawsuit. But, according to the Fifth Circuit, there's nothing in it for the plaintiffs. They pointed to the posters -- the ones being crafted while Garza hung himself -- as indicative of the Donna PD's official stance on the mistreatment of detainees. This is too much of a stretch for the court.
    Appellants’ conditions theory centers on the signs that Ruben De Leon, DPD’s police chief, ordered installed in the jail. Those signs, as noted, bore the message “Welcome to Donna Hilton” and the Punisher logo, respectively, and Jailers Garza and Coronado were assembling them at the critical time on February 19. Appellants view the Donna Hilton sign as “mockingly invok[ing] the torture of POWs.” Donna officials venture a positive interpretation of the sign. De Leon said he “wanted buy in from the jailers and the staff to remember that we’re here to serve – the people who come in, some people call them prisoners. I call them customers.” Robert Calloway, a Texas Ranger who investigated Garza’s death, saw it as a reference to the Vietnam POW camp, as Appellants do.Appellants view the Punisher logo as “favorably advocat[ing] vigilante violence.” At summary judgment, Appellants argued at length for a “link between Punisher imagery and abusive police behavior.” Among other sources, they relied on a dissenting opinion in a recent Eighth Circuit case, which, citing Wikipedia, explained that the Punisher was an “antihero” figure “created by Marvel Comics in 1974 as an antagonist to Spider-Man,” who “considers killing, kidnapping, extortion, coercion, threats of violence, and torture to be acceptable crime fighting tactics.”In Appellants’ view, the signs, taken together, announce an “official policy of prisoner mistreatment” or “official encouragement of intentional mistreatment of detainees.” They argue that the signs should thus be categorized as a “condition” of the confinement to which Garza was subjected. The signs “served no valid governmental purpose,” and their installation caused Garza’s constitutional deprivation because it preoccupied Jailers Garza and Coronado to the detriment of their core duties.
    The signs certainly aren't helpful and do little to assure detainees they'll be taken care of properly during their stay, but the appeals court agrees with the lower court: the signs the jailers crafted while allowing a detainee to hang himself are not indicative of inhuman conditions.
    Appellants’ conditions theory is an effort to fit a square peg into a round hole. Prior conditions cases have concerned durable restraints or impositions on inmates’ lives like overcrowding, deprivation of phone or mail privileges, the use of disciplinary segregation, or excessive heat. See Yates v. Collier, 868 F.3d 354, 360 (5th Cir. 2017) (heat); Scott, 114 F.3d at 53 & n.2 (collecting other examples). The import of the Donna jail’s signs is too nebulous to amount to an official rule or restriction, and the signs do not operate as a continuing burden on inmate life in the way that dangerously high temperatures or overcrowded cells do. As such, the district court was correct to reject Appellants’ conditions theory.
    The signs are also not indicative of official policies either. The appeals court does find that the jailers' actions -- making posters rather than checking on detainees -- could be construed as deliberate indifference, but decides the case can be dismissed on other grounds, rather than allowing that argument to develop.
    Appellants do not attribute the actions of the arresting officer, Silva, or the senior officers who performed CPR, Rosas and Suarez, to any particular policy or custom. What they argue for Silva, Rosas, and Suarez is that De Leon’s order to post the “Welcome to Donna Hilton” and “Punisher” signs announced an official policy of detainee mistreatment. The import of the signs is too general and inexact for the signs to constitute the sort of specific directive required for municipal liability, and it is too nebulous to constitute a moving force. The episodic acts or omissions of these employees therefore cannot be attributed to the City.
    And, since the police chief was unaware a prisoner was busy hanging himself, his decision to task his jailers with making posters cannot be seen as deliberate indifference either.
    Nothing in the record indicates that De Leon was aware of Garza’s presence at the jail, much less that he instructed the jailers to disregard Garza in favor of installing the signs. It thus cannot be said that De Leon’s directive was deliberate in the sense meant by Pembaur or that it was tailored to the particular situation of Garza’s confinement. Consequently, it is apparent that the record cannot support municipal liability on this basis.
    So, an indifferent deed goes unpunished. True, the jailers may not have deliberately decided to ignore a suicidal detainee in favor of making posters, but the record shows they were far from attentive. It wasn't until ICE showed up and interrupted the arts-and-crafts project that anyone specifically tasked with keeping an eye on detainees actually started to pay attention to the detainees. By that point, it was too late for Jose Luis Garza. And, as far as the courts can tell, this sucks for Garza but they don't have anything to offer his survivors.

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    YouTube Copyright Filters Suck: The 'Beat Saber' And 'Jimmy Fallon' Edition

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    At this point, it's plainly obvious that YouTube's ContentID platform for doing automated takedowns of videos that supposedly infringe on copyrights is a full on mess. That mess is multi-pronged. The filters themselves suck at identifying actual infringement, and throw up all kinds of false positives. The filters are also so broadly applied that building any nuance into what is blocked and what isn't is basically impossible. Finally, the whole system is so wide open for abuse that it's laughable.The latest iteration of this concerns Beat Saber, a virtual reality rhythm game where you essentially wield two lightsabers to match the beats and rhythms that go along with the music. The game has become so wildly popular that it was recently featured on The Tonight Show with Jimmy Fallon. That's where things went sideways.

    Brie Larson played Beat Saber on The Tonight Show Starring Jimmy Fallon which resulted in the video being uploaded to the show’s YouTube channel. Unfortunately, subsequent uploads with similar gameplay are getting copyright strikes because it appears to share similar gameplay footage, possibly from the same levels as played on the show.Here is one of the tweets that highlighted the issue about the Beat Saber copyright strikes:

    In case you can't see that tweet, it's essentially Beat Saber's team responding to one of the many people who had a let's play video taken down due to a takedown notice... from Jimmy Fallon's show. Confused as to why NBC is taking down videos that include only game footage of Beat Saber? Well, Fallon and his guest played those same levels on his show, leading the ContentID filters to think that the let's play videos were playing part of Fallon's show, when it was actually the other way around: Fallon's show included game footage. In other words, ContentID got it exactly backwards.And, it should be noted, the folks behind Beat Saber absolutely do want you to upload video of game footage to YouTube.
    “This was not planned by anyone, that’s just a really messed up youtube algorithm,” stated a subsequent tweet on Beat Saber’s account. “I wouldn’t be surprised if Jimmy’s team didn’t even know about the fact that this is happening. I will reach out to Jimmy’s team. Maybe they can help, but I am not sure about that. :(”The Beat Saber team has turned off ContentID detection for the track, but this particular situation is somewhat out of their hands. Fortunately, the developers may have a solution underway for the Beat Saber copyright strikes. A follow-up tweet states that the people behind The Tonight Show Starring Jimmy Fallon are working with YouTube to resolve the issue. In the meantime, the developers advise that it may be helpful for uploaders to dispute the claim should they be one of the affected videos.
    And, yet, there are hundreds of these takedowns. No, Beat Saber folks aren't being copyright jerks. No, NBC wasn't trying to takedown let's plays of Beat Saber. Instead, everyone is relying on an automated system that fully sucks at getting copyright questions correct. It sucks so bad, in fact, that they get the order of operations here backwards.If you need another example that automated filters can't do copyright enforcement, you will never be satisfied.

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    New Police Misconduct Database Shows Thousands Of Violations, Very Little Accountability

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    USA Today has scored a coup. It has partnered with police accountability nonprofit Invisible Institute to obtain misconduct records from around the nation. These paint a pretty bleak picture of American policing -- not just in the number of incidents, but in the number of incidents that go unpunished.Public records requests have resulted in thousands of documents detailing at least 200,000 incidents of alleged misconduct, along with more than 100,000 internal investigations. The database is completely searchable and leads readers, reporters, researchers, etc. directly to the underlying documents.Here are the morbid stats this database has produced:

    Most misconduct involves routine infractions, but the records reveal tens of thousands of cases of serious misconduct and abuse. They include 22,924 investigations of officers using excessive force, 3,145 allegations of rape, child molestation and other sexual misconduct and 2,307 cases of domestic violence by officers.Dishonesty is a frequent problem. The records document at least 2,227 instances of perjury, tampering with evidence or witnesses or falsifying reports. There were 418 reports of officers obstructing investigations, most often when they or someone they knew were targets.Less than 10% of officers in most police forces get investigated for misconduct. Yet some officers are consistently under investigation. Nearly 2,500 have been investigated on 10 or more charges. Twenty faced 100 or more allegations yet kept their badge for years.
    The last number is perhaps the most concerning. Without effective deterrents in place, there's nothing stopping officers from spending years under investigation while still earning a paycheck and, possibly, being allowed to directly interact with the public. Some agencies pull the trigger quickly when officers misbehave repeatedly, but the investigation found there are many that almost never pull a cop's certification, no matter how many misconduct complaints/lawsuits they've racked up.Decertifying law enforcement officers can slow the roll of "gypsy cops" -- ones that wander from department to department violating policies, rights, and laws, traveling under the opacity provided to them by restrictive public records laws and union agreements. But since decertification so rarely happens, the worst cops can land top law enforcement gigs simply by looking for work in small communities unlikely to have the resources to fully investigate candidates for these openings.That's what happened in a small Ohio town. Amsterdam town officials hired David Cimperman as their new police chief. It was only after he engaged in a shitload of official misconduct that anyone started asking questions.
    [Town officials] found forms featuring the mayor’s apparently forged signature that David Cimperman used to add more than 30 officers to the town’s police roster – one for every 16 residents. Many never did any paid police work for the town, logging hours instead for a private security business that state investigators say Cimperman ran on the side. He tried to outfit them with high-end radios. The riot gear and other surplus military equipment he bought with taxpayer money are missing.
    One phone call to Cimperman's former boss in New Philadelphia could have prevented this. Cimperman had been fired from that police department for… well, just about everything.
    They hired a chief without knowing he’d been fired for perjury, quit a job as his bosses started investigating missing police equipment and was charged with a felony for tampering with police radios to make untraceable phone calls.
    Fired twice from one department, Cimperman simply went somewhere and took a position giving him a lot of unearned power. This sort of story has been repeated multiple times around the nation. The records obtained through this investigation show multiple officers with long rap sheets obtaining high-level positions in other departments thanks to years of minimal accountability and the opacity that accompanies so many internal law enforcement documents.The new database is an invaluable tool -- one that will continue to grow as more records roll in. National exposure of endemic law enforcement problems may nudge a few agencies to clean house and encourage even the smallest communities to vet incoming law enforcement officers and officials more thoroughly.

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    Open Source Makes Kodi Add-ons Proliferate -- And Hard To Eradicate

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    As Techdirt noted a year ago, the entertainment industry has been trying to convince the authorities around the world that "fully-loaded" Kodi boxes, which allow the viewing of unauthorized video streams, are the devil's spawn, and must be eradicated. That obsession has led to efforts to stop even vanilla Kodi boxes being promoted and sold, despite the fact that the open source software they run is perfectly legal. TorrentFreak has a report about the latest salvo in this war on Kodi, and its interesting consequences.It concerns a third-party Kodi add-on called "Exodus", which, like many others, allowed unauthorized streaming videos to be viewed with little effort. The excellent design and resulting popularity of Exodus meant that it was soon targeted by copyright companies. The pressure worked, and the development of the add-on was halted, leaving millions of happy users somewhat less happy. But Exodus had an important hidden feature: it was released under an open source license. That meant that anyone could pick up the code and continue its development independently of the original, without needing to ask permission from anyone. As TorrentFreak points out, that is precisely what has happened, and on a surprisingly large scale. The TVAddons site recently published an article that discusses 12 forks of Exodus, which is only part of the Exodus ecosystem: "Too many Exodus forks are out there to investigate them all."This "hydra" effect -- chop off one head, and two grow in its place -- makes eliminating open-source add-ons for Kodi extremely difficult. Although individual developers may be persuaded to stop working on a particular fork, the code is still out there, and can easily be maintained and improved by others. Since the latter can be anywhere in the world, that makes shutting them down even harder. However, TorrentFreak rightly notes that this doesn't mean that the efforts of the copyright companies are entirely in vain:

    the continued efforts from rightsholders to shut down these add-ons may have a more subtle effect. While hardcore pirates will always find a new fork, there's also a group of people who will get frustrated by the repeated shutdowns, and give up eventually.
    That's certainly true, but it's not an insurmountable problem. For example, it would be straightforward for developers to create a common standard for key aspects of their add-ons that would allow simple switching between them. That way, once one add-on was shut down, non-technical users could migrate easily to new ones, perhaps even automatically. When the code is open source, there is no problem with proprietary rights being asserted over programming modules or configuration files -- another reason why developers may decide to adopt it when writing Kodi add-ons.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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    Sturgis Motorcycle Rally Inc. Keeps Telling Licensees Its Trademarks Are Valid While Courts Keep Insisting They Are Not

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    As many of you will be aware, there is a small town in South Dakota, Sturgis, that turns into the place to be if you're into motorcycle rallies. Many of you may not be aware, however, that this rally and town have become the center of a years-running trademark dispute. Sturgis Motorcycle Rally Inc. (SMRI), which helps put on the rally, moved to trademark the name of the town and the rally, and then began bullying local Sturgis businesses for daring to use the town's name or the name of the event. This was done, according to SMRI, for the purpose of protecting the event and town, which makes little to no sense. In the end, the two trademarks in question were one that was a geographical name and one that was almost purely descriptive of a social event.As it turns out, subsequent rulings on the matter did not go in SMRI's favor. This is creating some confusion in Sturgis, as SMRI's strategy for dealing with the legal losses appears to be simply pretending that they didn't occur.

    Despite court rulings in the past year making some Sturgis Motorcycle Rally trademarks invalid, Sturgis Motorcycle Rally, Inc., continues to maintain the validity of the marks.In emails and letters to licensees in recent months, the not-for-profit organization, which oversees the licensing of the trademarks, tells licensees all marks are still valid.“It continues to be SMRI’s position that all of its trademarks are valid and protectable and enforceable. SMRI expects further court proceedings to address those issues with finality,” said Jason Sneed, SMRI’s attorney. But in the past year, two separate courts ruled that SMRI did not own or have valid trademark rights to names “Sturgis,” “Sturgis Rally & Races,” and “Sturgis Motorcycle Rally.”
    I'll say this: it's a bold strategy. I'm apparently not as creative as the folks at SMRI, because I never would have thought of the solution to multiple courts telling me my trademarks are invalid might simply be to say, "Nuh-uh!" This does cause one to question what the repercussions for this behavior might be, however, as extracting money out local businesses by asserting trademark rights the legal system insists you don't have certainly does sound like fraud.Some of the folks on the receiving end of SMRI's bullying agree and want their fellow local businesses alerted to the truth.
    Rushmore Photo & Gifts, Inc., owned by the Niemann family of Rapid City, has long produced souvenir items containing the words “Sturgis,” “Sturgis Rally & Races,” and “Sturgis Motorcycle Rally.” “They (SMRI) have snubbed their noses at Viken and the 8th Circuit ruling,” said Brian Niemann, president of Rushmore Photo & Gifts. “We have filed a motion to have Viken reach out to them and stop them from basically lying to their licensees.”
    It seems obvious that the misrepresentation by SMRI cannot be allowed to continue. It's also obvious that the granting of these trademarks that never should have been granted is not doing the town and rally any good, no matter what SMRI has said in the past. Again, if the Trademark Office had put just a little more thought into these applications, all of this could have been avoided.

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    Ex-State Trooper Convicted Of Involuntary Manslaughter For Tasing A Teen Riding An ATV At 35 MPH

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    Former Michigan State Trooper Mark Bessner is going to jail. Bessner originally faced a second-degree murder charge for tasing a teen riding an ATV, but was ultimately convicted of a lesser charge. The details here are provided by the New York Times, which seems to be trying to further exonerate the former law enforcement officer with its reporting.

    A former Michigan state trooper was convicted of involuntary manslaughter on Wednesday, nearly two years after he fired a Taser at a teenager on an all-terrain vehicle who then crashed and died.The teenager, Damon Grimes, 15, was illegally riding the A.T.V. in a residential area of Detroit in August 2017. State police officers followed in a patrol car to get him to pull over. When he did not immediately do so, the officer in the passenger seat of the patrol car pulled out his Taser and stunned Damon.Video footage of the episode showed the A.T.V. veering toward the side of the road. The teenager crashed into the back of a parked truck and died shortly thereafter.
    If this is the only writeup someone sees regarding this incident, they're going to come away with a lot of wrong impressions.First, Bessner fired his Taser from his moving patrol car at Damon Grimes. Both vehicles were traveling at 35 mph when this happened. Earbuds were recovered from the scene, bringing into the question the assumed fact that Grimes knew he was being pursued by the troopers.At the point the pursuit was initiated, Grimes had only committed a traffic infraction. Trooper Bessner decided to punish this with an inadvertent -- but foreseeable -- death sentence. The pursuit was unnecessary. Bessner's decision to tase a person riding an ATV at 35 mph by firing out the passenger window of his moving vehicle was beyond idiotic. It was psychopathic.Bessner retired while under investigation. His former employer has attempted to exonerate itself by stating Bessner's Taser deployment fell outside of department guidelines. Inarguably, this is true. But what the agency won't own up to is its continued employment of a trooper who should have been fired long before he took someone's life. According to public records obtained by the Detroit Free Press, Bessner was a liability to the force for years.
    Bessner has a history of using excessive force and has been reprimanded before for using his Taser inappropriately, including using the device on handcuffed suspects. The investigation into Bessner's conduct shows that over a four-year span ending in 2017, he had 40 use of force incidents, 17 pursuits and five car accidents.
    The last stat possibly explains why Bessner was in the passenger seat. The rest of it explains why Bessner felt justified firing his taser at a teen riding an ATV -- a teen whose unprotected body was hurled headfirst into the rear end of a pickup truck, resulting in multiple deadly injuries, including a dislocated skull.The Times article also skims right past Bessner's attempt to change his story during the trial. None of the records obtained by the Detroit Free Press contain anything indicating Bessner believed Grimes was carrying a gun. Multiple body camera and dashcam recordings contained zero statements about this CYA theory, as did the paperwork related to the incident and its subsequent investigation.Nevertheless, Bessner tried to save himself by claiming -- months after being charged -- he thought the teen on the ATV was trying to pull out a gun.
    “He had slowed down and he had looked back several times,” Bessner testified. “There was one very, very crystallizing moment where his left hand reached down towards his waist.”He later said he “absolutely” believed Grimes had a gun and that his life was in jeopardy.“It was a deadly force situation, is what I thought, and I used the tool I had available to me,” Bessner said.After Grimes crashed the ATV, Bessner said he and his partner tried to help the teen. He also searched the victim for a gun.“I was shocked that he didn’t have a weapon. I was shocked at the magnitude of what had happened,” Bessner testified.
    Every cop who kills an unarmed person is "shocked" when they don't have a weapon. Some shock is legitimate. Some of it isn't really shock, but rather dismay that the "feared for my safety" defense may only be as bulletproof as the dead body at their feet.State Trooper Bessner screwed up and it's going to cost him a few years of his freedom. But he didn't screw up by making a bad judgment call on force deployment. He screwed up by assuming he could act like a vigilante rather than a law enforcement officer and get away with it. His history with the state troopers shows it was a safe bet to make. But sometimes the bet doesn't pay off and the constant underdog -- police accountability -- scores a rare win.

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    Evil Video Games Great At Detecting Early Dementia In People

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    We cover a fair amount of video game news here, with much of it revolving around either intellectual property concerns or the common claims that video games are responsible for all the world's ills. The latter posts can be separated into two categories: one in which the violence in games is blamed for violence in the real world and one in which those who do not enjoy the medium blaming games for producing young people who those same people decide are deficient in some way.It's enough to make you think there are really only two camps. One camp thinks video games are evil in all of the possible ways. The other camp thinks video games are great in all of the possible ways. But this isn't how the real world works. Like any other artistic medium, some products are good, some are not. Some are wholesome or thought-provoking, while others are empty calories. Even the notion that video games are solely an artistic or entertainment medium is a false premise, as demonstrated by a recent use of gaming to help identify Alzheimer's Disease before serious symptoms show up.

    Sea Hero Quest was built as a way to identify people who might be at risk of Alzheimer’s but who aren’t yet suffering any major symptoms of the disease and according to a study recently published in the journal PNAS, it seems the game is effective. In Sea Hero Quest, which is a VR game, players have to navigate and control a virtual boat. They are given a map and shown checkpoints, then the map is taken away and players must navigate to these checkpoints in the game world without the map.According to researchers, every two minutes spent playing the game is equal to five hours of lab-based research. Because Sea Hero Quest has been out for a few years and downloaded and played by over three million players they’ve collected the equivalent of 1,700 years of research data on Alzheimer’s.
    As the technology grows, perhaps particularly VR technology, applications like this will likely only grow along with it. And, while the equivalence figures sure sound like marketing material, it's also likely true that there is indeed an efficiency in using the game in this way versus traditional research methods. That kind of boon in gathering statistical information, not to mention the ability to use it to alert those who would potentially suffer from the disease en masse, is the kind of thing digital technology is built for.The question becomes where those who decry the gaming industry would come down on this. I'm certain they would argue that these types of games used for these types of things are just fine. Except that we would never have gotten here if not for the gaming industry existing as a whole. That is the very reason that generalizing an entire medium, or an entire technology, as inherently bad is never a smart look. There will always be examples such as this, in which that "bad" tech is used for a noble purpose.And the validity of the output in using this games appears to be fairly strong.
    “We found that people with a high genetic risk, the APOE4 carriers, performed worse on spatial navigation tasks. They took less efficient routes to checkpoint goals,” said Professor Michael Hornberger, a member of the team.Using data gathered from thousands of players who downloaded and played Sea Hero Quest, researchers were able to create a baseline that their test results could be compared to. In the future, the team hopes this data and the game will help identify people who need treatment for dementia before they begin suffering from some of the worse later stage symptoms.
    At the very least, this should be an indicator to the "get off my lawn" crowd that it might be time to take a breath.

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    This Week In Techdirt History: April 28th - May 4th

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    Five Years AgoThis week in 2014, while Senators Feinstein and Chambliss were taking yet another shot at a new, concerning cybersecurity bill, they were also backing down on attempts to require transparency from the administration regarding drone strikes. The German government blocked Ed Snowden from testifying before parliament to mollify the US, we learned that the UK'S GCHQ had hidden its access to the NSA's PRISM database from its parliamentary overseers, and we were wondering why Verizon's pushback against bulk records requests was so much weaker than it could have been. This was also the week that John Oliver's Last Week Tonight debuted, with its first episode featuring an interview with Keith Alexander that we couldn't help but notice might be the toughest interview he'd yet faced, even with all the jokes.Ten Years AgoThis week in 2009, dumb tweets about swine flu led to an early preview of concerns about disinformation on social media. The BBC was happily promoting MPAA propaganda about movie piracy while claiming it was being balanced, German publishers were demanding ISPs block file sharing sites, France was still trying to adopt a three strikes law even as Nicolas Sarkozy was paying up for his own copyright infringement, and in general legacy industries were showing a real sense of entitlement with regards to the internet (not that piracy freak-outs regarding technology were anything new). The USTR finally got Canada bumped up to its Priority Watchlist for intellectual property (for some reason), Warner Music made the very foolish decision to issue a DMCA takedown of a presentation by Larry Lessig, and we learned just how bad the revolving door is with the revelation that former RIAA lawyers now working for the government only had to stay away from issues impacting their former employees for one year.Fifteen Years AgoThis week in 2004, we took a look at the one-sided file sharing propaganda being foisted on school students by the entertainment industry — and boy did it ever seem like brainwashing. The Senate was looking at four different intellectual property bills including one that would let the FBI start filing civil suits for its entertainment industry buddies, and one that would expand California's ban on video cameras inside movie theaters. TiVo was pushing advertiser dollars onto the web, an attempt to force cable companies to offer a la carte channels fell through, self-publishing was shedding some of its stigma as it got easier, and the first federal charges were brought under the recent CAN SPAM laws. This was also the week that, after much anticipation, Google officially filed for its IPO — which of course everyone had to weigh in on, including us.

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    Game Devs Trolling Pirates Goes All The Way Back To At Least The Playstation Days With Spyro 2

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    When it comes to how game developers react and interact with those that pirate their games, there are obviously plenty of ways to go about it. There's the ineffective legal route, which puts developers in a bad PR light. There's the DRM route, which is a hellish waste of time. And, on the other end of the spectrum, there are devs that choose to embrace the internet and attempt to monetize piracy through human connections and innovative business models.Somewhere in the middle is the less-traveled path of simply fucking with infringers. Whether its embedding antipiracy messages into the gameplay itself, or simply overlaying the entire game with the drone of a vuvuzela, there are a couple of recent examples where developers figured out how to detect cracked versions of their games and using that to torture pirates. While I would argue there are better ways developers could be spending this time and human capital, such as innovating, it's also true that it's hard not to smile when the pirates get messed with.But this goes back much further than the last few years. The always excellent Tech Rules YouTube channel put out the following video on how Spyro 2 on the Playstation 1 tortured those using pirated copies of the game.

    The slow burn of this prank on pirates is what makes it both so effective and so infuriating if you believe, as I do, that all of this is mostly time wasted. The joke being played here, with the effects of using a pirated version of the game getting incrementally and progressively more profound, is indeed funny. You can just picture the person playing a cracked version of the game very, very slowly realize he or she is being screwed with.But it also appears to have taken quite an effort to pull off. And for what? We have no idea how many would-be pirates were converted into paying customers of Spyro 2 by any of this, but I cannot imagine anyone thinks that unknown number is significant. The game was reviewed well, and sold well in several regions, but not at numbers that would seem to justify the time commitment spent to convert whatever the fraction of pirates turned into customers was.So, again, funny? Yes, absolutely. Mean or harmful? Nah. A useful use of the game developers' time? I can't see an argument for that, so why bother with any of this?

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    Chicago PD's Gang Database Is A Horrific Mess Compiled By Horrific Public Servants

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    The easiest way to control a certain percentage of the populace is to strip it of its humanity. It happens in prisons and jails every day. It happens to immigrants all the time. For the Chicago Police Department, dehumanizing the citizens they serve makes it that much easier to minimize their complaints and avoid treating them with any level of respect.The City of Chicago's Inspector General has released a hefty, disturbing report [PDF] on the Chicago PD's gang database. This collection of people -- all lumped together as gang members or associates -- is shared with over 500 government agencies. Given this alarming fact, you'd think the CPD would be a bit more professional when compiling it. But you'd be wrong. The thing that leaps out immediately is how demeaning the database is, thanks to officers' input.

    [S]ome entries raise serious concerns about how CPD officers perceive and treat the people with whom they interact. OIG found that CPD officers entered occupations for individuals on gang arrest cards that included "SCUM BAG," "BUM," "CRIMINAL," "BLACK," "DORK," "LOOSER [sic]," and "TURD."
    This epitome of community policing is being turned out on every governmental street corner. 500 agencies have made nearly one million inquiries of this finely-sourced database over the past decade. Whatever they were looking for was most likely black, male, and residing in certain Chicago neighborhoods. Not because that's what these other agencies were actually searching for, but because that's all the Chicago PD had entered into the database.
    Of the 134,242 individuals designated as gang members in Gang Arrest Cards over the past 20 years, Black or African American and Latinx males comprise 91.3%.[...]Thirteen of the City's 77 community areas account for over 50% of Gang Arrest Cards produced.
    GIGO at scale. And with zero avenues of redress for those the officers have arbitrarily declared "gang members."
    Over 15,000 individuals designated as gang members by CPD had no specific gang membership listed and no reason provided for why the individual was listed as a gang member. Individuals designated as gang members are not notified of their designation and have no ability to appeal the designation. CPD does not regularly review, correct, or purge inaccurate gang information; those with inaccurate designations have no opportunity to clear their name and mitigate the impact of incorrect or outdated gang designations. Ultimately, CPD's gang designations are permanent and inescapable. Once designated, an individual is listed as a gang member in CPD's system forever.
    Since the CPD certainly isn't informing other agencies of the multiple, self-induced flaws in the data, the million searches returned highly-questionable intel these outside agencies likely believed was the result of actual investigations, rather than biased policing.Needless to say, the gang database has done a significant amount of damage to the CPD's reputation and its relationship with the communities it serves. Residents view the gang database as just another way for cops to target minorities and make their lives miserable. This impression isn't wrong. The database is a confirmation bias machine, allowing cops to believe most minorities are gang members because the database says most minorities are gang members.No one outside the CPD has the power to vet the information contained in the database and the CPD hardly seems worried about the inaccuracies it contains, much less the slurs listed as "occupations" or the fact that it's 91% minorities. The Inspector General's review of records noticed a ton of discrepancies, including multiple entries for the same people (thanks to clerical/paperwork errors) and individuals listed as being under the age of ten, despite other records showing them to be nearly a decade older than the gang database said they were.The sloppy handling of data would be concerning on its own. The fact that this database tells over 500 outside government agencies a person is a gang member makes this inattention to detail horrific. The CPD is shrugging thousands of people onto a gang list with zero care for the collateral damage it's causing.
    6,233 individuals designated with multiple race classifications, and 903 individuals designated with multiple gender classifications.21,380 individuals designated with multiple dates of birth, approximately 15.9% of the total number of individuals, and 922 individuals of the 21,380 had dates of birth that could not be determined. This includes two individuals in the Gang Arrest Cards data whose ages were listed as 6 and 7 respectively however, both individuals had multiple dates of birth listed.9815,174 individuals with no specific gang designation, despite being listed as gang members approximately 11.3% of the total number of individuals.15,648 individuals designated as gang members never had a reason provided by CPD for this designation in any Gang Arrest Card, approximately 11.7% of the total number of individuals. Further, 24,151 Gang Arrest Card records had no reason provided for the designation.
    The IG offers a list of recommendations, but no one should hold their breath waiting for the CPD to implement them. Unsurprisingly, the IG suggests the CPD try to approach adequate competency when gathering info on suspected gang members and entering it into the system. More importantly, the IG says the CPD needs to ensure the accuracy of what it already has, purge everything that isn't (or is outdated), and provide a way for citizens to challenge their addition to this database, which means adding a notification method.Anyway, re: your breath:
    CPD's response and proposed measures diverge from the OIG's recommendations in several critical ways. The Department's response indicates that CPD will not engage with community stakeholders in the fashion that OIG recommends.
    In other words, thanks for all the help, but we'll take it from here and possibly make it even worse. There's nothing in these reforms the CPD wants or needs, so it will slow-walk its minimal improvements while proceeding with the gang-tagging business as usual. And why should it change? The city is filled with people officers don't consider people.

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    Top Court Rules CETA's Lipstick-On-A-Pig Version Of Corporate Sovereignty Is Compatible With EU Law

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    Techdirt readers with good memories may recall the long saga of the EU-Canada Comprehensive Economic and Trade Agreement (CETA). One important moment was when Canada agreed to use the EU's proposed replacement for corporate sovereignty, the Investor Court System (ICS). Both are versions of so-called "investor-state dispute settlement" (ISDS), which allows companies to sue countries for alleged losses caused by government decisions. Although ICS was devised in order to blunt the growing criticism of traditional ISDS, it amounts to little more than lipstick on a pig. It still gives foreign investors unique legal privileges not possessed by local companies. However, as part of the deal to persuade the Belgian region of Wallonia not to veto CETA, the EU agreed to allow Belgium to ask the region's top court to rule on whether the new ICS was compatible with EU law.As is usual in such referrals, one of the top legal advisers of the Court of the Justice of the European Union (CJEU) offered a preliminary opinion. In this case, Advocate General Yves Bot found that the ICS was compatible with EU law. The main CJEU has now issued its own judgment (pdf), essentially agreeing with Bot on every point. The key ruling is that, according to the CJEU, the ICS won't be able to overturn EU decisions:

    the CETA contains provisions that deprive those [ICS] tribunals of any power to call into question the choices that have been democratically made within a Party to that agreement in relation to, inter alia, the level of protection of public order or public safety, the protection of public morals, the protection of health and life of humans and animals or the preservation of food safety, protection of plants and the environment, welfare at work, product safety, consumer protection or, equally, fundamental rights. Consequently, that agreement does not adversely affect the autonomy of the EU legal order.
    That seems a little naive. It may be true, from a strictly legal point of view, but it ignores the reality of the situation. Even if the ICS cannot force an EU Member State to amend its laws, or change its decisions, it can impose fines for the "losses" an investor may suffer because of those moves. In such cases, a government may decide that it would rather repeal the law or cancel its decision than pay hundreds of millions of euros in fines. Even the threat of losing may be enough to convince governments to back down -- exactly as has happened many times with traditional ISDS. However, the Stop ISDS campaign points out:
    The case against ISDS (or its rebranded version ICS) has never been primarily a legal one. It is a moral one.ISDS allows multinational companies access to an obscure, parallel justice system closed to the rest of us. Calling it a court system for the 1% would be generous. It is really a court system for the 0.01%.ISDS has allowed corporate interests to trump those of the public time and time again. Countries have been threatened for passing pollution regulations, approving health and safety measures and for hitting the pause button on fracking. It has been used to defend land grabs, environmental destruction and lock in privatisation of key public services.None of these arguments depend on the opinion of the ECJ. The moral case is as strong as ever -- ISDS must go.
    That's not a hopeless aspiration. As Techdirt reported earlier this year, the EU has already announced that corporate sovereignty claims can no longer be brought over internal EU matters. Meanwhile, the US seems to be cooling on the idea. So while the ICS has been blessed by the CJEU, it may be that corporate sovereignty is on the way out anyway.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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    Washington State Supreme Court Tries, Fails To Protect The Rights Of The State's Residents

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    A correct conclusion was almost reached by the Washington Supreme Court… but it was foiled by the fact that only eight justices reviewed the case. Here's the backstory to the decision that almost was, via Nick Sibilla of Forbes.

    The case began more than three years ago in Shoreline, Washington when a late-night shouting match between Solomon McLemore and his girlfriend prompted a bystander to dial 911. When the officers arrived and repeatedly demanded to be let in, the yelling stopped though no one answered the door. After 15 minutes and still no response, police heard glass shattering and, suspecting domestic violence, began forcing their way inside. As the officers broke down the door, McLemore told police that they were infringing on his rights and that they needed a warrant. Officers also heard McLemore tell his girlfriend to tell police that she was ok.Once inside, police determined that the woman was not injured and promptly threw McLemore in handcuffs. But McLemore wasn’t charged for domestic violence. Instead, police arrested McLemore for “obstructing a law enforcement officer,” which involves “willfully hinder[ing], delay[ing], or obstruct[ing] any law enforcement officer in the discharge of his or her official powers or duties.” For refusing to open his door to police, McLemore was convicted for obstruction and sentenced to 20 days of house arrest.
    The issue before the court should have been a foregone conclusion, but the court's headcount helped prevent that from happening.Here's the question: is a citizen obligated to grant the government access to their residence in the absence of warrant? The answer should obviously be, "No." It certainly shouldn't be obstruction charges. It's not that there aren't exceptions to the warrant requirement. It's whether or not citizens have a legal duty to assist officers with their warrantless entry.The officers definitely had a legitimate exception at their disposal. A report of possible domestic violence gives officers all the permission they need for a warrantless entry under the community caretaking function. Entering the apartment to ensure any possible victims weren't in need of medical care or other assistance is justifiable. McLemore, however, refused to allow the officers to enter without a warrant.But a valid warrant exception doesn't automatically place a burden on homeowners to allow officers inside. McLemore's refusal to open the door and, once officers were inside, refuse to help officers sort out the domestic situation shouldn't be a crime. That was the conclusion originally reached by the nominal "majority" of the split court [PDF].
    Criminalizing the refusal to open one's own door to a warrantless entry would be enormously chilling and inconsistent with our deeply held constitutional values.[...]Even under the more limited protections afforded by the Fourth Amendment than our own constitution, "[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak."[...]Under the limited construction of the statute required by our constitution, a defendant's conduct that amounts to passive delay will not sustain an obstruction charge.
    That was the correct conclusion to reach. It would have brought the state in line with the rest of the country. As the ACLU noted in its amicus brief, Washington is the only place where "an individual can be convicted for peacefully refusing a warrantless home intrusion."Less than a day after the court had decided to join the other 49 states in decriminalizing non-criminal behavior, the court recounted its votes and decided the tie was actually a loss for state residents.
    It is hereby ordered that that the lead opinion of Gonzalez, J., filed April 18, 2019, in the above entitled case is changed as indicated below.On page 17, line 2 of the slip opinion, beginning with "We", strike all material down to and including "opinion." on line 3 and insert:We in the lead opinion would hold the city presented insufficient evidence to sustain McLemore's conviction and remand to the trial court for further proceedings consistent with this opinion. However, we recognize this opinion has garnered only four signatures. "Therefore, there being no majority for the reversal of the judgment of the trial court, it necessarily stands affirmed, and the order of this court is that the judgment appealed from be and it is hereby affirmed." Peterson v. City of Tacoma. 139 Wash. 313, 313, 246 P. 944 (1926).
    Thanks to this reversal of its own reversal, cops can continue to arrest people for exercising their rights. That's no way to run a judiciary. Equally concerning is the fact that four justices apparently decided the lousy status quo wasn't worth upending. A reversion to an "enormously chilling" standard shouldn't be an acceptable conclusion, but that's all Washington residents have left until this is appealed to the highest court in the nation.

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    Supreme Court Asks White House To Weigh In On Copyrightability Of APIs

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    Back during an earlier round of the never-ending legal dispute between Oracle and Google concerning whether or not APIs can be covered by copyright the Supreme Court requested that the White House weigh in on its opinion -- leading then Solicitor General Donald Verrilli (formerly a top lawyer for the MPAA) to weigh in with what we argued was a painfully clueless brief. The underlying issue here, from the very beginning, revolves almost entirely around the simple point: do you actually understand what an API is? If you do -- and recognize that it's fundamentally different from executing software code -- then this is an easy case. An API is simply an instruction set -- a recipe of sorts -- for being able to interface with a particular program. And US copyright law is clear that copyright cannot apply to any "idea, procedure, process, system, method of operation, concept, principle, or discovery."An API is easily covered by that designation, but because you have non-technical lawyers who can't understand the difference between software operating code (which is copyrightable) and an API (which is not) they argue that the two are virtually identical, and thus APIs should be covered by copyright. Tragically, that argument worked at the appeals court (it didn't work at the district court, where Judge Alsup already had some coding history and famously taught himself how to program in Java to better understand the facts of the case).Now that the case is back on appeal to the Supreme Court, looking specifically at questions of fair use around the reuse of an API, the Supreme Court has (somewhat oddly) asked the White House to weigh in again. As part of its Monday orders it invited the White House to give its opinion on whether or not it should even hear the case (not yet on the actual merits of either side's case):

    The Solicitor General is invited to file a brief in thiscase expressing the views of the United States.
    Of course, there's a very different White House with a very different Solicitor General. Of course, I have no idea if the current Solicitor General's office knows anything about coding or knows why an API is not operating code, and it seems like a total crapshoot to expect the Solicitor General to have an informed opinion on this matter. So it's not entirely clear why the Supreme Court expects it will -- but now that it's asked, we should probably expect something from the White House on this issue. As has been noted in the past, when the Supreme Court does ask the Solicitor General to weigh in, it often has an impact on the case -- especially when the question is simply on whether or not the Supreme Court should hear the case in the first place. Given that, one hopes that the Solicitor General will support the petition to hear the case and revisit the CAFC's ongoing confusion over copyright law.

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    Nintendo Slays The Threat From Modded Nintendo Games For The Commodore 64

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    Any review of the recent posts we've done on gaming giant Nintendo would certainly reveal a disappointing trend. That trend appears to be the company, which has always maintained an aggressively tight grip on its IP, upping its efforts to take down all kinds of ROM sites, fan-made games, and gaming leaks. Gamers here may also already be aware that there is something of an odd fascination in gaming communities with the Commodore 64, an 8-bit gaming computer created way back in 1982 and discontinued in the early 90s. There are thriving modding and porting communities dedicated to figuring out how to get the C64 to do things it was never intended to do.Which perhaps makes it surprising that it was only in the last week or so that someone figured out how to get a working C64 to be able to play a port of the original Super Mario Bros. The whole enterprise appears to have nothing to do with wanting to play an illicit copy of the 80s game and everything instead to do with a community of enthusiasts simply tinkering and seeing what could be pulled off for fun. Getting Mario on a Commodore apparently took something like seven years and was hailed as an achievement by the Commodore community. Reactions such as the below are indicative of the responses.

    What an achievement. It runs great on my C128D, with slowdowns on the later, more busy levels. But overall, really really impressive.
    You get the idea. Much better, it appears, than Nintendo does, which of course waited for the release of years of enthusiastic work before DMCAing everything it could find about this release.
    Links to the image squirreled away on hosting platforms started to go down, with the suspicion that the Japanese gaming giant was behind the deletions. Seven years of hard work taken down with a few lines of text. Early this morning, the Commodore Computer Club revealed that it too had been hit with a copyright notice, effectively confirming that Nintendo was behind the action against Super Mario Bros. 64.It doesn’t really come as a surprise that Nintendo has targeted the project. The company has been extremely busy in recent months taking down sites that offer ROMs that infringe on its copyrights. Furthermore, Super Mario Bros. is also available on its Game Boy, Wii U, and Switch platforms, so the ….erm….Commodore 64…is also a market threat.
    No, it absolutely is not a threat. This is plainly ridiculous. We can stipulate all we want that Nintendo is within its rights to issue these takedowns... but why? Seriously, what the hell is the point of taking down this labor of love and geek enthusiasm? Does Nintendo truly suspect there are tons of people out there who have been sitting by with their Commodore 64s, or their emulators, just waiting for this release of Super Mario Bros. in order to play it, instead of buying it on one of Nintendo's current generation consoles?No, of course not. This was tinkering for the sake of tinkering. Or perhaps for some bragging rights. Whatever all of this is, it's not a threat to sales of Super Mario Bros.But Nintendo's going to Nintendo, I suppose. Because, gamers, as I keep telling you, Nintendo hates you.

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    Deputies Destroy House, Lives To Recover $50 Of Marijuana And A Single, Unbottled Pill

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    Another life -- two of them actually -- has been destroyed by a law enforcement smash-and-grab operation. Acting on information residing solely in the nostrils of a single law enforcement officer, Alabama deputies destroyed a house and took possession of everything of value in it. C.J. Ciaramella has more details at Reason.

    On January 31, 2018, a Randolph County sheriff’s deputy showed up at the home of Greg and Teresa Almond in Woodland, Alabama, to serve Greg court papers in a civil matter.Greg, 50, wasn’t home, but his wife Teresa told the deputy he would be back before long. About two hours later, after Greg had returned home, he heard loud knocking on the door. He remembers shouting “hang on” and walking toward the door when it suddenly flew open. The next thing he knew he was on the floor—ears ringing, dazed, wondering if he’d just been shot.Several deputies from the Randolph County Sheriff’s Department had kicked in his front door and thrown a flashbang grenade at his feet. The officers handcuffed and detained the couple at gunpoint, then started searching their house. The deputy from earlier had reportedly smelled marijuana, and so a county drug task force was descending on the Almonds’ home, looking for illegal drugs.
    The total haul in contraband from the drug raid was less than $50-worth of marijuana. In addition, an officer claimed he found a loose pill containing a controlled substance. It was a pill with a controlled substance, but it was a stretch to call it "loose." Here's the details on that part from the Almond's lawsuit [PDF]:
    Inside the Almond residence were two safes that housed an extensive collection of over 80 guns, some of which are antiques; approximately $8,000.00 cash; jewelry; and other personal items, including prescription medications. The Almonds were directed to open the safes. Inside the safes, the members of the drug task force claim to have found ONE LUNESTA PILL outside of the bottle in which it had been prescribed. Lunesta is a non-narcotic class IV controlled substance prescribed to aid sleep.
    Using that one pill, the department charged the couple with felony drug possession, on top of the misdemeanor marijuana charge. These charges were taken to a grand jury which proceeded to do what grand juries do best: return indictments.These drug charges -- for one pill outside of a bottle and $50 of marijuana apparently actually possessed by their adult son -- were the first criminal charges Greg or Theresa had ever faced, coming 30 years of marriage and a few grandchildren after anyone would have expected. The charges have been reduced to misdemeanors but this raid and arrest isn't the end of the story.Everything that was in the safes disappeared into the Department's hands. So did a bunch of other stuff around the house, along with the cash Greg Almond had in his wallet. The warrant inventory contains far less then the Almonds claim the deputies took. The full list includes the firearms from the safes, $8,000 in cash, wedding rings, medications, antique guitars, a coin collection… pretty much anything the officers felt might have resale value.As a result of this unexpected loss and the public accusations of drug dealing, the Almonds lost their business, their house, and any hope of earning a living going forward. All that's left is the lawsuit. It's loaded with Constitutional violations and other harms inflicted on the innocent couple by the Sheriff's Department, but it's a long shot considering the wealth of defenses available to government employees. As for the property taken, that's an even longer shot, considering how quickly agencies liquidate property and how low the burden of proof needed to keep this property is in forfeiture cases.It's unlikely anything the government offers -- if it's held culpable for any of this -- will undo the damage it did in this raid that uncovered a small amount of marijuana and a single pill. The raid that treated a couple in their 50s like youthful cartel members destroyed a house and two lives -- and all of it came as the result of a single deputy claiming he smelled marijuana when he tried to serve civil papers earlier in the day. It only took two hours for the Sheriff's Department to mobilize a small army armed with guns and explosives to extinguish the threat of a burning plant, based on a tip no one could ever possibly corroborate.

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    Announcing: The Public Domain Song Anthology

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    When we learned about this project a couple of years ago we promised Bob Schwartz we'd run a plug for it when the time is right. Today is Jazz Appreciation Day and the crowdfunding has begun, so the time is now right. Here is Bob's plug:You realize something needs to be done and you are the only one crazy enough to do it. This happened when my law and music worlds collided: A D.C. restaurant stopped booking live music due to license demands from a Performance Rights Organization. I suggested that bands could play "originals," and play from a book of Public Domain popular music - but no such book exists - even though as of Jan. 1, 2019 more music is entering the Public Domain.I realized I knew the very best music, law, and library people to create such a book, of 370 songs, and to give it away - in text and musical notation software, free for creative use and adaptation - as an Open Educational Resource. And to add up to 50 more "1924" tunes next Jan. 1. But this would mean raising all the money in advance to pay the curator / arrangers, who have agreed they would not claim any purported (and dubious) rights in their research, notation, harmonization, notes, or formatting, or in the compilation itself. If any such rights exist they will be licensed cc-0.I'm happy and relieved to report that the Public Domain Song Anthology will be acquired and sponsored by The Music Library Association (MLA), Peabody Institute (Johns Hopkins), the University of Michigan, and the University of Virginia.

    These university libraries and other MLA members have raised their share of the necessary funds, including for the publication of a print volume for subscribing libraries and donors. The rest, according to plan, must come from a public-facing crowd-funding campaign. Mike and Techdirt, who have their own share of worthy causes, have generously agreed to let me include this link to the Indiegogo page for completion of this project, which includes avenues for corporate or foundation sponsorship. For other means, including donor-advised support, contact me or MLA's Open Access Editor Kathleen DeLaurenti. Thanks.

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