A little over three years ago, we wrote about what may be one of the world's dumbest trademark disputes (involving one of the world's most beautiful places). Yosemite National Park was in a massive trademark dispute concerning the names of various places (mainly lodging places) within the park. The background was a bit confusing, but the short version is that back in 1988, the company that operated the various facilities in Yosemite, the Curry Company, registered trademarks on the names of the various sites -- including the famous historic Ahwahnee Hotel, Curry Village and Yosemite Lodge. In 1993, the concessions contract passed from Curry Company onto a subsidiary of Delaware North called DNC Parks & Resorts at Yosemite (DNCY). It appears that the trademarks that Curry Company registered passed on to DNCY, though basically everyone forgot/ignored the trademarks.Part of DNCY's contract was that if another concession company took over, DNCY had to "sell and transfer" any interest it had in the park, including "such other property." Fast forward to a few years ago, and Yosemite decided to drop DNCY in favor of concessions giant Aramark. Suddenly, DNCY "rediscovered" that it held the trademarks. It offered to lease them to the park for "free"... but only if Yosemite retained DNCY as the concessions company. Yosemite said no, and DNCY started demanding money for the trademarks. Lots and lots of money -- between $30 and $51 million at different times in the process. Yosemite, on the other hand, countered that the trademarks were worth, at best, somewhere between $1.5 and $3 million. DNCY eventually sued for $44 million.Yosemite then went with the nuclear option and renamed all the historic spots in the park. So for the past three years, the Ahwahnee has been called "The Majestic Yosemite Hotel," Curry Village became "Half Dome Village," and the Wawona Hotel became "Big Trees Lodge." I've been up to Yosemite a few times during these three years, and everyone still seemed to call the Ahwahnee the Ahwahnee (or, as I heard multiple people say, "the hotel formerly known as the Ahwahnee.")However, a few weeks ago, everyone basically split the difference and settled the lawsuit. Delaware North walks away with $12 million -- with $3.84 million of that coming from American taxpayers, and the other $8.16 million coming from Aramark. More importantly, the deal stipulates that at the end of this contract, the trademarks "will transfer at no cost to the National Park Service."It also apparently didn't take long for Yosemite to revert to some of the old names. It turns out (I'd never even noticed) that for the past few years, many of the new names were really just tarps covering the old names:
Of course, what's not discussed in all of this is what sort of insanity it was that third party concession companies were ever allowed to trademark historic names in a National Park. It seems like that is something that should be explored and other parts of the National Park Service should make sure that private companies haven't claimed trademarks on other things throughout the country.
We have something of a long-running series of posts centering on the disheartening theme, "You don't own what you've bought." Whether it's digital products such as movies and eBooks, or more tangible products like thermostats, large companies are making backend alterations to how products previously purchased work and the public is just now starting to realize the full scope of what this means. That doesn't mean that same public isn't surprised when it happens to them, of course, but it's strange to watch the reactions to these anti-consumer practices range mostly from shrugs to actively joking around about it all.Bethesda went through its own instance of this recently. Just to be absolutely clear, the problems we are about to discuss have all been resolved by Bethesda, so good on them. These issues weren't intentional. Still, they demonstrate both how the current digital economy is one fraught with danger for people who think they're actually buying things and also demonstrates the cow-like tranquility of the reactions of those affected.In the past few weeks, Bethesda announced it was re-releasing several classic Doom games for the three modern consoles. It was great news for Doom fans, especially those that own PS4 and Nintendo Switch consoles. The re-release included the Xbox One, too, but that console had already seen a re-release of the classic Doom games. Except that gamers who had originally purchased the first re-release suddenly found that their purchases were no longer available.
But the news was different on Xbox One, where all three games had already received digital-download ports thanks to that platform's hearty Xbox 360 backwards-compatibility program. And on Friday, Bethesda gave those version's holders a rude awakening: the company completely delisted those Xbox 360 versions. As of press time, those games' original SKUs can still be found in Larry "Major Nelson" Hyrb's definitive Xbox 360 backwards-compatibility list, along with reminders that those games came back to life on Xbox One consoles in 2015 and 2016. Clicking any of the affected Doom games' listings right now, however, leads to dead Xbox 360 content pages, the kind you might find for delisted Xbox games like Marvel Ultimate Alliance.Owners of the original licenses are not redirected on their consoles to the new SKUs, and as of press time, those games' original owners are asked to pay full price to play the new, Xbox One-native versions of those classic games ($5 each for Doom and Doom II, $10 for Doom 3).
Again, this has since been corrected, mostly. The error that prevented those who had already purchased the games' Xbox 360 purchases has been corrected. That said, this shows the vulnerability of both buying digital versions of games that are manipulable by the publisher and the casual acceptance in the gaming marketplace that this sort of thing is to be expected. It's also worth pointing out that the new re-release removes some expansion packs compared with the Xbox 360 version, making all of this even more convoluted.On its own, perhaps this story wouldn't have been enough to land it on our pages. But the follow up was more fallout from fans who noticed after purchasing the re-release of the classic Doom games that Bethesda suddenly required a Bethesda.net login in order to play them.
Late last week, Bethesda surprised QuakeCon attendees and retro gamers worldwide with the re-release of the first three Doom games on Nintendo Switch, PS4, and Xbox One (that last one with some issues of its own). It also surprised potential players by requiring a Bethesda.net login and an active Internet connection to play. That state of affairs led to a fair share of online joking imagining other classics given similarly restrictive DRM.
Now, again, this was an error by Bethesda. What was supposed to happen was that login requirement was only supposed to happen for members of Bethesda's Slayers Club. But, again, we see how opening the avenue up for a game publisher to remotely dick with what people thought they were buying causes problems. And just because this was an error doesn't mean some other company might not put a classic game like this behind a DRM-ish login requirement, despite such a requirement being the digital equivalent of requiring a key and ignition to operate a horse-drawn carriage.Perhaps as concerning was that the reaction of the wider internet was to joke and meme-ify this whole fiasco. Humor is one thing, but anger and derision were probably vastly more appropriate reactions to all of this nonsense being layered on top of a classic game from the 90s.But, since you don't really own what you've bought, I suppose all one can do is shrug and laugh.
It usually takes very extreme behavior from law enforcement officers to punch holes in the qualified immunity shield. Fortunately/unfortunately, there's seems to be no shortage of extremely-badly-behaving law enforcement officers.In this case, fielded by the Eighth Circuit Court of Appeals, the Kansas City Police Department was investigating a homicide. Detectives managed to track the victim's cellphone to an apartment. They also managed to track down the suspect by using a combination of phone records and old fashioned police work. They arrested the suspect and applied for a search warrant for his residence.The warrant request omitted the fact they had heard the targeted phone ringing in an apartment on Winchester Street, rather than the apprehended suspect's residence (the "Bristol residence"). The SWAT team also met prior to the search and were informed the homicide suspect was already in custody.The SWAT team proceeded to the Bristol residence with a normal search warrant. Once the SWAT team arrived, it decided to do SWAT team things, even though it only had a normal warrant that didn't authorize the things it chose to do.Here's how it began, according to the Eighth Circuit decision [PDF]:
At 7:00 p.m., the SWAT team, dressed in tactical gear with weapons drawn, approached the front door of the Bristol residence. The front entrance had both an inside wooden door and an outside metal screen door, each of which were “double-keyed,” meaning they required a key to open from both the inside and the outside. Because the warrant did not authorize a “no knock” entry, the SWAT team knocked on the door and announced: “Police, search warrant!” At the time, there were four people inside the residence: the plaintiff, Z.J., a two year old girl; Laverne Charles, age 84; Leona Smith, age 68; and Carla Brown, age 24. Carla grabbed the keys to the door and opened the inside door.
So far, so good. There was no suspect to apprehend so the SWAT team's presence seems a bit extraneous. But the resident was offering to unlock the door to let them in to search the place. But time waits for no one, not even the Fourth Amendment.
She then held up the keys to the door in her hand and jingled them for the SWAT team to see in order to indicate that she was going to open up the door. Before she had the opportunity to open it, the SWAT team knocked out the screen and threw in a flash-bang grenade over Carla’s head into the living room of the house. Carla testified that she would have opened the screen door had she been given the opportunity to do so.
The officers involved in the raid disputed this account. And by "dispute," I mean "basically agreed that's what happened, but with a bunch of exonerative explanations."Sgt. Rusley claimed waited "five to ten seconds" before starting to pry off the screen door. He claimed the resident refused to open the door and walked away. Feeling the element of surprise had been compromised, he tried to regain it by sailing a flash-bang grenade into the residence. Another officer said roughly the same thing, only varying the narrative by claiming the team couldn't immediately discern what the waving of keys by the resident meant, but that the introduction of a flash-bang grenade would clear up any confusion.This is what followed the flash-bang grenade's "appearance" on the scene:
The flash-bang grenade caught the living room drapes on fire. The SWAT team had to remove the drapes from the house and place them in the front yard before continuing through the rest of the house. The SWAT team found two-year old Z.J. in the living room. One officer acknowledged Z.J. was “very shaken from the whole situation.” The team placed Carla and Leona in zip tie restraints, but was unable to place restraints on Laverne because of her advanced age and physical condition.
Because the person at the door didn't wave the officers in quickly enough, the officers threw a flash-bang grenade into a room containing a two-year-old. Fortunately, it was only the drapes that caught fire.Why the flash-bang? Well, habit, apparently. The SWAT team always has them, and pretty much always finds a reason to use them.
As the district court noted, the Board did not have any policy about the use of flash-bang grenades — such as when their use is appropriate and how to use them safely. One officer estimated that in executing search warrants, flash-bang grenades were used 80-90% of the time; another officer estimated that in his experience they were used about 50% of the time; and a third officer estimated they were used about 75% of the time.
The SWAT team members asked for the lawsuit to be dismissed, claiming qualified immunity shielded their attempt to set someone's living room on fire during normal warrant service. The court disagrees, finding that flash-bang grenades are rarely justified, especially in situations like these. As the court points out, a flash-bang isn't some sort of supercharged noisemaker: it's a weapon that causes very real damage.
The record evidence shows the flash-bang grenade used here is four times louder than a 12-gauge shotgun blast and emits a light 107 times brighter than the brightest high-beam vehicle headlight. It has a powerful enough concussive effect to break windows and put holes in walls. The flash-bang burns at around 5,000 degrees Fahrenheit, creating an obvious and serious risk of burning individuals, damaging property, and starting fires (as occurred here). In some cases, they can even be lethal. And as this case illustrates well, they pose a risk of traumatizing unsuspecting occupants — particularly small children like two-year old Z.J.
The court says there are cases where flash-bang use may be justified. But this case contained zero of those elements.
Whether the use of the flash-bang grenade here was reasonable is not a close question. The SWAT team knew the suspect, Charles, was already in custody. Any potential justification based on the fact Charles was (at the time) suspected of murder is eliminated by the fact the SWAT team knew they would not encounter Charles there. Nor did they have any indication that other people at the residence would pose any threat. In fact, they had no idea who was inside the house because they failed to do any investigation into that question beyond a quick drive-by to check the address. The use of a flash-bang grenade under these facts was not reasonable. “The use of a [flash-bang] grenade must be justified by the particular risk posed in the execution of the warrant.” Terebesi v. Torreso, 764 F.3d 217, 239 (2d Cir. 2014). Nor was the manner of use reasonable. They threw the flash-bang grenade into the house blindly without knowing whether children, elderly, or other innocent individuals were inside.
In defense of their blind flash-bang toss, the officers claimed there still may have been some danger present in the house. The police may have already had a suspect in custody but the sued officers theorized the homicide could have been part of a larger criminal conspiracy, which could have meant the residence housed even more dangerous criminals. The court has no time for this distended post facto rationalization.
Of course, they had no actual information to support this after-the-fact speculation. More to the point, however, this argument relies on a dangerously flawed premise. The argument that the SWAT team was justified in using a flash-bang grenade because they did not know for certain it was unnecessary is precisely backwards; it makes using that dangerous level of force the default. This type of “flash-bang first, ask questions later” approach runs headlong into the Fourth Amendment. Law enforcement officers like the SWAT team members here need an actual justification for using a flash-bang grenade; the mere hypothetical possibility that someone dangerous could be in a house they are entering — without any actual facts to indicate that is true or likely to be true — is not sufficient.
The court finds the argument that knocking and alerting the residents of the home removed the "element of surprise," forcing the SWAT team's grenade-lobbing hand.
The explanation that the flash-bang was used because the SWAT team believed it was “compromised,” meaning “that occupants of the residence knew [the SWAT team officers] were there and that [the officers] no longer had the element of surprise,” is unpersuasive. The search warrant did not authorize the SWAT team to conduct a “no-knock” warrant, and so they knocked on the front door and announced their presence, which obviously defeated the element of surprise. After all, the purpose of the constitutional knock-and-announce requirement is to allow a citizen the chance to come to the door and allow entrance to an officer who is legally entitled to enter.
The court says this is all clearly-established at this point, so no one involved in the SWAT team's flash-bang use will be able to dodge this lawsuit.
Only the plainly incompetent officer announces his presence at a house with no known dangerous people and then decides to throw in a flash-bang grenade because the occupants know he is there.
Sometimes, vague, unsupported beliefs about the dangerousness of the general public aren't enough to allow officers to dodge culpability for their dangerous decisions. This is one of those (rare) cases.
There can be various reasons for you to Instagram. It can be a business promotion, website promotion, promoting your photography, simply sharing things with friends, enjoying your view of pics getting viral, passing the time while socializing and so on. Whatever reasons you have to spend time on Instagram, one thing is common for all. […]The post The Importance Of Instagram Analytics And the Supporting Tools to Use appeared first on Adotas.
It will not come as news to the regular Techdirt reader that the folks behind Ultimate Fighting Championship truly hate pirate streams of its fight-nights. For years now, UFC has done everything from punishing some of its own biggest fans to petitioning the government and courts to strictly block any unauthorized broadcasts. In other words, UFC's stance is that it will take any action necessary to prevent people from pirating its product.In which case, UFC may want to have a word with at least one of its broadcast partners. BT Sport, the UFC's broadcast partner in the UK, recently made the decision to suddenly hit its subscribers with an additional pay-per-view fee to watch the bigger UFC matches. The move was met with catastrophic results.
BT Sport, the broadcasting rights owner for UFC (Ultimate Fighting Championship) events in the UK has decided that it would be a good idea to charge its subscribers an additional fee to watch big matches. BT Sport has been offering UFC content in the UK since 2013, with the regular subscribers experiencing no weird or optional limitations. However, the company decided to take a turn this Saturday with the UFC 239 match between Jon Jones and Thiago Santos. To watch the fight, subscribers were asked for an additional “pay per view” fee of £19.95.Instead of seeing more money flowing in, BT Sport was met with rejection as its regular subscribers decided to turn to piracy and watch the match through illicit channels. In addition to this momentary failure, BT Sport experienced subscription cancellations, as many were paying for a package only to access UFC events. Obviously, this didn’t play out the way that the broadcasting platform thought it would, and it serves as an example for all live sport streaming platforms which could be processing and evaluating such moves right now.
That this happened is useful for pointing out a number of things. For starters, it again highlights that piracy is a function of price and convenient availability. It's one thing to lock a UFC match behind a broadcast subscription, but to then slap a PPV fee on those already subscribing is obviously going to piss people off. And, more to the point, change the equation as to the price and availability of the UFC match. It should come as no surprise, then, that this pushes the public to illicit channels to watch these fights.That said, the levels at which this occurred and were able to be reported on were significant.
According to TorrentFreak, who highlighted the incident, several pirate IPTV service providers told them that there was a noticeable spike in the demand for BT Sport content during the weekend, and this was only the beginning.
Which brings us to the next lesson that should be learned here: if a broadcaster rather cravenly looks to extract money from current customers for something it hadn't previously charged for, and for which it is providing no additional new value, the slap back from customers is going to be swift and severe.
The subscribers of BT Sport packages did what they did not only out of choice but also as part of an agreed boycott that was organized on social media platforms like Reddit. By boycotting UFC 239, the subscribers hope that they will force the broadcaster to reconsider, and take PPV charging out of their strategy in the future. This is not the case for everyone though, as some express their satisfaction with the quality of the content and the experience of consuming it on pirating platforms.
Which brings us to a third lesson that should be learned: once you push people to piracy, you might not be able to get them back. Pirating UFC fights, and many other things as well, is something of a pain in the ass. All things else being equal, people generally want to go through the proper channels for their entertainment. But all else is not equal and when people discover the low-level pain that is pirating, it may cause them to explore that avenue for all kinds of other entertainment.All of this because BT Sport wanted to turn a previously-included sport into PPV? I would hope UFC would be discussing this with its broadcast partners, as concerned as it is about people not pirating its fights.
For a few years now, the company behind online streaming and speedy, cheap shipping has been seeking to expand its offerings. Amazon Web Services pays the bills, providing data storage for multiple companies/governments. "We can remember it for you wholesale!" Amazon promises. But that's the old thing.The next tech bet Amazon is willing to use as a loss leader to gain market share is facial recognition. Amazon has been handing this stuff out like bank teller lollipops to any law enforcement agency with money to spend and a desire to expand its surveillance net.Naturally, Amazon is high on its own supply. Everyone else, not so much. Congress demanded answers after a test drive of Amazon's facial recognition tech (called "Rekognition" because misspellings mean the future is now) said 28 of its members were criminals.At that point, it was no longer an existential threat to people's freedom. It was now a pile of computational garbage incapable of telling a Congressperson from a criminal. That those two groups sometimes have a significant overlap was lost on everyone involved. But the upshot was the US federal government had its eyes pinned on Rekognition, for better or worse.Cops shops love tech, especially the cheap kind. They also love the sort of tech they can pretend to understand as they pitch it to city legislators who also pretend to understand it. Some legislators are ahead of the curve and are telling cops this simply isn't going to happen on their watch, but for everyone else, there's cheap facial recognition tech from a recognized brand name not really recognized (yet!) for cop tech.Sadly, not everyone is happy with the cheap goods Amazon sort of sold them. The Orlando Police Department decided to give Amazon's Rekognition program for a test drive. After 15 months and an untold amount of dissatisfaction, the department is pulling the plug on its relationship with the internet giant.
Orlando's two-phase pilot with Amazon to try out real-time facial recognition software ended Thursday, capping 15 months of technical lags, bandwidth issues and uncertainty over whether the controversial face-scanning technology actually works.
Read this closely. It says several negative things about Amazon's latest product. First, it says Amazon's infrastructure can't deliver on the promises the company makes. Second -- and most importantly -- it says there are serious doubts about the tech itself.The city of Orlando, faced with disappointing tech and growing public opposition, has read the wind speed changes and adjusted accordingly.
"At this time, the city was not able to dedicate the resources to the pilot to enable us to make any noticeable progress toward completing the needed configuration and testing," Orlando's Chief Administrative Office said in a memo to City Council, adding that the city has "no immediate plans regarding future pilots to explore this type of facial recognition technology."
The city is unwilling to piss residents off by allowing the PD to deploy faulty tech at their expense. Good call. Sometimes politicians playing it safe pays off for taxpayers. There's no codified moratorium on facial recognition tech in Orlando, but this "hold the fuck up" declaration doesn't exactly encourage further experimentation. Amazon is out. Others could step up and take its place. But for now, Orlando looks like San Francisco, which was the first city in the United States to ban the use of facial recognition tech by city government agencies.Digging a little deeper, it still appears the problem is more tech-related than we-give-a-shit-about-our-residents-related. As noted earlier, bandwidth was a problem. The other hitch was image resolution. The city's cameras aren't optimized for facial recognition. The video resolution was too low and the cameras positioned too high to snag enough faces for testing. Add this to bandwidth limitations, and the rollout couldn't actually identify faces on the fly.Amazon is obviously disappointed by this decision. Its official statement says the company believes it offers the best technology and that cities like Orlando are better off buying products they can't actually use yet. But if this is the best Amazon has to offer, it's not going to impress many government clients. Bandwidth may be an end user problem, but it makes zero difference to end users if what's promised isn't what's actually delivered.Orlando's aborted test flight doesn't bode well for Amazon's embattled offering. If clients can't seamlessly misidentify people, no one's going to re-up subscriptions to a service that stutters along, hampered by bandwidth that can't cash the checks Amazon's figuratively writing. That being said, the company will still find law enforcement partners willing to test drive its facial recognition software simply because the fiscal barrier to entry is so low.But, once it becomes obvious they're only getting what they paid for, the allure of cheap/free tech is going to wear off. And every time it fails, it gives cities reasons to get out of the facial recognition business. That will help the public in the long run and that definitely isn't a bad thing.
Covering trademark nonsense, our posts tend to intersect regularly with the world of sports. It's relatively common at this point to witness teams and even entire leagues pulling anti-fan trademark stunts, from athletes trademarking their own nicknames no matter the fallout, to leagues considering messing with the trademark applications of video game companies, up to and including iconic baseball teams managing to trademark the derisive nickname given to them by other teams. It's all very, very stupid.Across the pond, however, teams in the Premier League have somehow managed to get trademarks on their home-city's names. Chelsea FC, for instance, has a trademark for "Chelsea" related specifically to football services and merch. This sort of thing is almost never allowed here in the States, but it's become enough of a thing that Liverpool FC is attempting the same move for "Liverpool" and it's pissing off a whole bunch of people.As was the case with Chelsea FC, Liverpool FC insists its mark will be very narrow.
The Reds stress their application is "only in the context of football products and services", and intended to protect both the club and the supporters "from those benefiting from inauthentic products".
There are a couple of problems with this. For starters, the general public has apparently become educated enough on the practices of trademark abuse to want to push back on the application themselves. Given how ignorant the general public has long been on how broad trademarks can be abused, this is rather encouraging to see.
A petition has been launched on Change.org that, at the time of writing, had already gathered more than 850 signatures in the space of a few hours.It said: "This petition is to keep [the word Liverpool] for all people of Merseyside to use without a solicitor's letter dropping through your door. Do the right thing. Let's stop this."Twitter user Azul wrote: "The club only need see how unpopular this is with its own fans to realise their greed is going too far. Not everyone has the budget for official merchandise, and there’s many making a living from this. Turn it in lads."
Negative feedback from the public goes on from there, including from local ward Councillors. But you have to also wonder just what the granting of such a trademark would do to City of Liverpool FC, an independent club that plays in the Northern Premier League.
City of Liverpool FC, who play in the Northern Premier League, called the move "outrageous" on Twitter. A spokesman for the club told the ECHO : "Our club is one of many that will be affected by this trademark application made by Liverpool FC. We as an ambitious and independent football club feel that we are entitled to use the name of our city in our name. We understand that LFC may not have intended to threaten the future of our club, but that is an effect of this application, but even just on a moral basis, we don't think any private business should be able to own the word 'Liverpool' - it simply does not belong to them."
Beyond any moral concerns, this is exactly why many trademark systems put such a high bar on attempts to trademark geographic terms. That term is typically more widely used than any kind of creatively inspired name or term, as is the case here. For a given industry, never mind something as popular as football in the UK, there is likely more than one player in a geographic area. Allowing any one of them to gobble up the rights to a geographic term for that entire industry, even an industry as narrow as football, is insane.
Fellow Twitter user John Furlong called for a campaign against the "ridiculous idea", adding: "The name of the city does not belong to any one individual or group."
Not so in the case of Chelsea, as we've said. But that's a problem, not a precedent worth repeating.
We have been talking these past few weeks about a strange game of whac-a-mole currently being played between YouTube and a whole bunch of stream-ripping websites. While stream-ripping sites have been targeted by the music industry specifically for some time now, despite a wide range of non-infringing uses of such technology, it was only recently that YouTube decided to participate in all of this by blocking access to its platform for many of these sites. Built around claims of ToS violations, it's fairly clear that YouTube's actual goal in all of this is to appear to be attempting to bow to the music industry's wishes. Despite the blocks, many of these sites have managed to route around the blockade, thus the game of whac-a-mole.But not all such sites have taken this stance. Onlinevideoconverter.com, which initially routed around the block, has since announced that it is voluntarily leaving the hide-and-seek game and will simply stop converting YouTube videos itself.
However, the team behind the site isn’t planning to keep up this fight. People who access the stream-ripper today will notice that YouTube downloads have stopped working again. A site representative informs TorrentFreak that this is intentional.“In view of YouTube’s latest stance, we’ve decided to disable the conversion of all YouTube videos on our service,” OVC says.The stream-ripping site notes that the decision was taken voluntarily and not after it was contacted directly by rightsholders or YouTube. OVC simply believes that it’s the best direction to take and it stresses that other downloading and conversion tools remain available.
While other sites are still keeping up with the game, the exit of OVC is significant, as it is certainly one of the most popular stream-ripping sites on the internet. This may, of course, have been part of YouTube's overall plan. While its initial strike wasn't particularly effective, perhaps it actually was if seen as something of a warning shot. Google and YouTube have a ton of legal and influential weight to throw around, after all, and taking this initial action was bound to be enough to spook some sites.Which is a shame, actually. The fact remains that these sites have legitimate uses. I've used them in the past for publicly available lectures and educational material from technology manufacturers that have no reason to view an audio rip as problematic. And, again, what about the artists out there who actually embrace what the internet can offer and want their work made as widely available as possible?They don't matter in this fight, apparently. And that's a reality the music industry, and apparently now YouTube, can't seem to recognize.
One of the search warrants used by the San Francisco police department to go after a journalist for documents a PD employee leaked has been released. This is only one of the five warrants targeting "stringer" Bryan Carmody, whose house was raided by the SFPD back in May.This search warrant targeted Carmody's phone records. It was granted on March 1st, allowing the SFPD to obtain records from Verizon. This was done supposedly to track down which cop called Carmody over a two-day period prior to the release of the leaked document to California news agencies.Earlier this month, Judge Rochelle East quashed the warrant, saying it showed the SFPD omitted key info that would have made it clear it was targeting a journalist -- something forbidden by California's journalist shield law. The judge also unsealed the warrant. It has finally been released and it shows SFPD Sgt. Joseph Obidi writing his way around the fact that Carmody is a journalist.In the application [PDF], Sgt. Obidi cut-and-pasted part of Carmody's LinkedIn profile. The officer included the part that said Carmody was a "Freelance Videographer." But he excluded the part that said Carmody "has decades of experience shooting, editing and reporting news," as well as the long list of new agencies he had worked with. It also excluded the fact that the SFPD had issued a press pass to Carmody -- one that was still current when the warrant was obtained.This was pointed out during the hearing about the warrant by Judge East, who said the existence of a press pass should have told the SFPD to steer its investigation away from Carmody.
While under other circumstances in other cases there may be some question as to what a journalist is. In this case I think there is none. The fact that he has a press pass from the San Francisco Police Department indicates to this Court that he is a journalist.
The narrative in the application shows the SFPD suspected an officer or SFPD employee. Yet, the Department decided to go after a journalist for possessing and distributing a document that was illegally leaked by one of its own. It could have limited its investigation to its own staff and their phone records. But it didn't, and now it's only a few weeks away from seeing all of its warrants tossed (and hopefully unsealed) and presumably less than 365 days away from being sued by Bryan Carmody.
As we've been talking about for a bit now, there is a new favorite target of the music industry when it comes to anti-piracy efforts: stream-ripping websites. It's important to continue to point out that, despite the plain fact that these sites are quite often used to generate audio-rips of copyrighted music video material, that is most certainly not their only use. Other uses for these sites are non-infringing. But this is the music industry we're talking about, with it's storied history of carpet-bombing technology tools rather than precision bombing actual infringement.Meanwhile, YouTube more recently decided to conspire with the music industry against these sites by blocking several prominent stream-ripping sites without word or warning. From that original post we wrote:
All of this is made even more strange in that Google didn't give any heads up about this new policy, isn't talking about it now, and has to know that it isn't going to work long-term.
And indeed, little over a week after the blocking efforts started, many of the targeted sites are able to rip MP3s from YouTube again.Mp3-youtube.download almost instantly announced that it was working on a fix and today the site is working just fine. The same is true for Dlnowsoft.com, which was also blocked last week, as well as the massively popular Onlinevideoconverter.com, which is among the top 200 most-visited sites on the Internet.
There is some more in TorrentFreak's post, much of which seems to indicate that either YouTube didn't spend a great deal of time thinking about how it was going to win this inevitable battle or that YouTube wanted to take the most minimal actions it could to tell the music industry it was trying while knowing how this all was eventually going to go. If the latter, it's fairly cynical. If the former...well, it's probably not the former.The block itself appeared to be a simple IP-range block, easily routed around by the site operators.
“To fix the problem, we simply used other servers that are not in the range of IP-addresses blocked by YouTube,” the operator of the stream-ripping site informed us.If YouTube is indeed serious about its efforts to take out ‘voliative’ stream-ripping sites, it will likely block the new IP-addresses as well, eventually. This will then trigger a proverbial cat and mouse game, one we know all too well from other pirate site blocking efforts.Mp3-youtube.download informs us that they indeed took countermeasures, like the other sites that work again.“I think the YouTube update is stupid because we will always find a solution,” the operator says.
Stupid, perhaps, but not in the way that last quote suggests, I don't think. Instead, it would be better for YouTube, which obviously isn't taking this too seriously, to refuse the music industry's requests to inhibit technology tools that aren't in themselves infringing. YouTube can enforce its own ToS or not, but it shouldn't bother even pretending to want to do battle with site operators on behalf of the music industry.
The Eleventh Circuit Court of Appeals has reached a conclusion that defies easy summation. But here's an attempt: it is not well-established that cops shouldn't shoot children they've ordered to lie prone on the ground while trying to shoot a dog that posed no threat to officers.In reversing the lower court's denial of qualified immunity to Officer Michael Vickers, the Appeals Court has opened the door to preventing the stupidest, most-inept cops from being held responsible for their careless blunders.In this case, Vickers and other officers were pursuing a suspect through a neighborhood. This pursuit inserted them into the backyard of Amy Corbitt, where Corbitt's 10-year-old child (known only as SDC in the opinion) and five other children (two of them under the age of three) were playing. The officers entered the yard and demanded everyone present to get down on the ground, including the children. They handcuffed the only adult in the backyard (Damion Stewart) and kept the children on the ground. The officers had the scene secured as they outnumbered the prone children who were still laying on the ground with guns pointing at them.The surprise entrance of the family dog turned this scene from merely-horrific to possibly deadly. From the decision [PDF]:
Then, “while the children were lying on the ground obeying [Vickers’s] orders . . . without necessity or any immediate threat or cause, [Vickers] discharged his firearm at the family pet named ‘Bruce’ twice.” The first shot missed, and Bruce (a dog) temporarily retreated under Corbitt’s home. No other efforts were made to restrain or subdue the dog, and no one appeared threatened by him.
Officer Vickers, presumably still shaken by the sound of his own gunfire, decided to take another shot at the dog when it reappeared and tried to approach all the people it knew, who were lying on the ground all over the backyard. There's no indication the dog even turned in Officer Vickers' direction.
Eight or ten seconds after Vickers fired the first shot, the dog reappeared and was “approaching his owners,” when Vickers fired a second shot at the dog. This shot also missed the dog, but the bullet struck SDC in the back of his right knee. At the time of the shot, SDC was “readily viewable” and resting “approximately eighteen inches from . . . Vickers, lying on the ground, face down, pursuant to the orders of [Vickers].”
Maybe this attempt to secure the scene was necessary because other officers were still trying to detain the criminal suspect…
Barnett (the fleeing suspect) “was visibly unarmed and readily compliant” with officers.
Officer Vickers claimed he was entitled to qualified immunity for shooting at a non-threatening dog and shattering a child's knee instead. In support of this, he pointed to an unpublished decision by the Eleventh Circuit saying no one has the right to be free of "accidental applications of force." The lower court disagreed. The Eleventh Circuit apparently feels there's no case law precisely on point to prevent it from rewarding Officer Vickers for his courageous stupidity in the face of non-danger.Its explanation of this conclusion sounds like it's going the other way the whole time… right up until its conclusory sentence.
As noted above, at the time Vickers fired at the dog, SDC just happened to be playing in his own yard when, for reasons beyond his control, his yard became the scene of an arrest operation. Although we have held that SDC was already seized at the time of the shot, SDC is best described as an innocent bystander. And although the commands of the officers that SDC and the other children lie face down on the ground were actions directed at SDC and the other children, Corbitt does not claim that those actions violated SDC’s Fourth Amendment rights; rather, she claims that the action of Vickers firing at the dog and accidentally hitting SDC violated the Fourth Amendment. We hold that Vickers’s action of intentionally firing at the dog and unintentionally shooting SDC did not violate any clearly established Fourth Amendment rights.
Or, more concisely: being careless with your deployment of force doesn't violate the Constitution.
Indeed, we are unable to identify any settled Fourth Amendment principle making it obviously clear that volitional conduct which is not intended to harm an already-seized person gives rise to a Fourth Amendment violation.
There will be no holding by the court to encourage more careful deployments of force in the future.
This is not a case that so obviously violates the Fourth Amendment that prior case law is unnecessary to hold Vickers individually liable for his conduct. To find otherwise would require us to conclude that no reasonable officer would have fired his gun at the dog under the circumstances. This we are unable to do.
What do you mean by "we," asks Judge Wilson's dissent:
The majority accurately points out that qualified immunity protects “all but the plainly incompetent.” Maj. Op. at 10 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Because no competent officer would fire his weapon in the direction of a nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers. Therefore, I dissent.
As the dissent points out, there was nothing "reasonable" about Officer Vickers' actions, especially when it's apparent from the allegations no one BUT Vickers felt compelled to shoot at the non-threatening dog.
Consider the present facts and circumstances: officers arrived at a home and found the subject of their search. At gunpoint, the officers ordered the suspect and all persons in the area—including six children—to the ground. Everyone complied. A nonthreatening family pet was present on the scene; there is nothing to suggest that this pet acted with hostility or threatened the safety of anyone— including the officers. With all the children and the suspect still lying on the ground pursuant to the officers’ commands, Officer Vickers shot at the family pet. He missed. He waited. He shot again. He missed again, instead striking a child who had been—at all times—lying within arm’s reach of the officer.This conduct—discharging a lethal weapon at a nonthreatening pet that was surrounded by children —is plainly unreasonable.
If the question is "reasonableness" of the actions taken, Officer Vickers fails the test every step of the way.
No reasonable officer would engage in such recklessness and no reasonable officer would think such recklessness was lawful.
Unfortunately, the majority felt the impact of denying qualified immunity would be too much for the occupation of law enforcement to bear. If officers are forced to consider the implications of their violent actions, they might… I don't know… commit fewer acts of violence. Spun into blueness, this would be misconstrued to mean second-guessing themselves in life or death situations. That's extrapolation from facts not in evidence. Nothing here was a threat. But Officer Vickers fired until he hit something anyway. That it happened to be a child rather than the family pet is horrifying, but the truth is, Vickers never should have opened fire at all. But he's free to make the same harmful mistakes again and again, as are all his blue brethren in the 11th Circuit.
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Back in May, the San Francisco Police Department raided the home of a local "stringer," hoping to discover who had leaked a sensitive police report to the journalists. This raid violated the state's journalist shield law and the First Amendment. Since it was obvious the source of leaked document was an SFPD officer or employee, the raid was also incredibly stupid… unless the real point of the show of force was to discourage journalists from publishing leaked documents.It took a few days before the SFPD police chief was willing to condemn the raid. According to the chief, the still-unseen affidavit glossed over the target's occupation -- an omission that likely would have seen the warrant application tossed if it had been included.Speculation about the contents of at least one of the warrants is about to come to an end. The judge overseeing stringer Bryan Carmody's challenge of the warrant has ordered the affidavit to be unsealed.
“The search warrant will be unsealed with the exception of one portion,” San Francisco Superior Court Judge Rochelle East said in court.One paragraph of the 11-page warrant must be blacked out to protect the identity of a confidential police informant. The unsealed file will be released by July 23 at 10 a.m. to attorneys for three press advocacy groups and a freelance journalist whose home was raided by police.
A judge in San Francisco tossed a search warrant she issued against a freelance journalist in May, saying police did not disclose to her that the target of the warrant worked in the news media industry.The ruling, handed down in San Francisco County Superior Court, means materials gathered from the home and office of journalist Bryan C. Carmody cannot be used as evidence against him or anyone else as police continue their investigation into the leak of documents and photographs related to the death of former San Francisco Public Defender Jeff Adachi.
Unfortunately, this only takes care of one of the warrants targeting Carmody. This one sought phone records linked to the numerous cellphones Carmody owns. The other warrants -- targeting Carmody's home and office -- are still being challenged.The good news is those warrants are likely to meet the same fate. It's highly unlikely the affidavits attached to those search warrants included the fact that the target was a journalist. Two more hearings are set to discuss those warrants, but it seems pretty clear from the ruling here that SFPD officers lied to a judge (or judges) to get around the state's shield law.If those hearings go the same way, the SFPD will lose all the evidence it collected during its bullshit raid. It won't have anything to use against Carmody, but it seems unlikely a prosecution would even be pursued at this point. But a stack of bad warrants also invalidates anything it might have wanted to use against the employee who leaked the document. The SFPD probably should have kept its internal investigation internal, rather than bring it to the doorstep of a journalist's house.
You may not recall the name Katharina Weischede, but we wrote about this Filipina teenager from New Zealand back in 2018, when Viacom decided to oppose the 13 year old on trademark grounds because she dared to make and sell "slime" as a business. More specifically, Katharina has earned the nickname in New Zealand of "Slime Princess", which is what she applied for in her trademark application. Viacom opposed the application, citing that its Nickelodeon division has trademark rights for "slime" in the country already.It was an absurd opposition on every level, from Katharina's company carrying something like a $20k valuation at the time, to the overly broad mark which Viacom was purporting to be protecting, to the pure PR nightmare that was getting into a legal battle with a bright teenager looking to start a fun business.And, to make the whole thing worse, The Slime Princess (TM) defeated Viacom at the trademark office.
Katharina, however, stood her ground and started an campaign via a Givealittle page to raise money for a legal battle with the entertainment giants to keep her trademark. According to her, the support she received from kids and adults all over New Zealand have really inspired her to fight for her passion.After a grueling legal battle, Katharina prevailed in court and has slain the giant that threatened her kingdom of slimes. Nearly two years after the case, she now continues to make her own creations of slimes and builds an army of fans and supporters via her own platforms and networks to continue bringing smiles in the faces of young kids and even adults.
And, far from simply taking the win and staying silent, she is taking her show on the road. Katharina is visiting the Philippines to share the story of her business, including the legal struggle with Viacom, to other young entrepreneurs. At 13, she has a legal victory over a massive entertainment company on her belt, not to mention her story in starting her own business at that age to begin with. It's a cool story and one that hopefully will highlight to others that standing up to big businesses is in fact possible.
She will be staying in the country for a few days to meet with kids, share her stories, play with them and make fun slimes.“It’s going to be a an amazing experience here. I’ve always looked forward to sharing it with the kids here in the Philippines. I dreamt of experiencing it here, and now I am here, this is going to be different and special.”
There are many, many ways for big companies' attempts to use social media or smart apps to go horribly wrong. Usually these happenings involve either hacked into accounts repurposed for lulz, rogue employees having a bit too much to drink on beer Friday and then going off, or companies doing something stupid and then blaming either of the previous for it.And then there's the American Hockey League's mobile app, which for some reason alerted users that Stewart Zimmel apparently both owes someone $6k and threatens to punch people in the throat.
The American Hockey League's long-awaited schedule announcement for the 2019–20 season hit a minor road block on Wednesday, when the code behind the official app of the NHL’s top minor league became self-aware and demanded money from Stewart Zimmel. At least, that’s one way to interpret these confusing but very real screenshots of push notifications sent to users today, which accused Zimmel of threatening to punch someone named Ian Bowman in the throat “nemours times” (sic).
It wasn't just this one Twitter user, either. Others stared quizzically at their phones, wondering why Stewart Zimmel won't just pay back what he owes, not to mention why he would go around throat-punching people. Far from this being some one-off thing, the app later began displaying screenshots of communications in which someone named Zimmel kinda does threaten to punch someone in the throat. And, because the internet is a wonderful place, some people began trying to figure this mystery out.
Stewart Zimmel, for those wondering, is the COO of a company called HockeyTech, according to his LinkedIn. HockeyTech bought the company Zimmel previously worked for, Buzzer Apps, in 2018. Bowman, according to an older fragment of the Buzzer Apps LinkedIn page that’s archived on Google, used to work for the company too. It seems safe to assume that he worked on the AHL app—or at least knew how to hack it—and also that he feels he’s owed $6,000 from Zimmel.
The AHL has since gotten its app back under control, meaning that it is no longer sending users screenshots of threats of violence... so that's good. On the other hand, it really shouldn't be that hard to keep this kind of stuff from happening. And if you're going to launch an app that can push notifications to the public's phones, it's probably best to have some checks in place to keep this sort of thing from happening.
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Last month, we wrote a fairly long post about some interesting elements (demonstrating the flimsiness of "copyright" existing for many photographs) in a copyright lawsuit filed against model Gigi Hadid for reposting a cropped paparazzi photo on her Instagram. As we noted in that post, despite all of the interesting arguments made regarding copyright and photos, it seemed clear that this case was going to get tossed on purely procedural grounds -- namely that the lawsuit, filed by a photo agency called Xclusive-Lee (who may or may not even hold the rights to the photo), was filed prior to the photo receiving a registration from the Copyright Office. Back in March, the Supreme Court said that copyright law is quite clear that you need to wait until the registration is obtained.Here, that was not the case. It was filed before the registration was granted, and thus it's no surprise that (as first pointed out by the Hollywood Reporter) that this case was thrown out for that reason alone.
Assuming, without deciding, that Plaintiff has sufficiently pled that it owns a validcopyright in the Photograph, the Court concludes that Plaintiff's copyright infringement claimshould nevertheless be dismissed due to Plaintiff's failure to comply with the registrationrequirement. As the Supreme Court has held, the registration requirement is [a] statutorycondition under which a plaintiff must obtain registration of a copyright in a work before filinga lawsuit based on infringement of that work.
The judge mocks the weak attempt by Xclusive-Lee's lawyers to argue that because this lawsuit was filed before the Supreme Court made it's ruling, that the court can magically ignore the Supreme Court. Not how it works.
Acknowledging the holding in Fourth Estate, Plaintiff argues, in effect, that because it filedthe complaint in this matter before the Supreme Court's decision in Fourth Estate, and becauseprior to Fourth Estate, the Second Circuit had left the application/registration rule . . . issue to thediscretion of individual District Court judges....Fourth Estate should not preclude Plaintiff's infringement claim in this case. The Court disagrees.There is no doctrinal basis on which this Court can decline to apply a Supreme Courtdecision that would otherwise apply merely because that Supreme Court decision was issued after the filing of the complaint at issue in this case. Indeed, Plaintiff cites no case law supporting itsposition. In Fourth Estate, the Supreme Court decisively held that § 411(a) requires a plaintiff tohave already been granted registration from the Copyright Office prior to commencing an actionfor copyright infringement. See Fourth Estate, 139 S. Ct. at 888. Although Fourth Estate postdated Plaintiff's filing of its complaint, it is nevertheless binding on all lower federal courts unlessand until the Supreme Court decides to revisit it.... For thisreason, Plaintiff's observation that the Second Circuit may have provided for a different resultprior to Fourth Estate is of no moment.
Ah well. Exactly as expected. Still, it will be interesting to see if the issues raised earlier do start to show up in future cases.
As I mentioned when we recently discussed Dean Guitars' pushback and counter-suit against Gibson Guitar's trademark lawsuit, Gibson CEO James Curleigh's vague declaration of a relaxed position on IP enforcement has calcified into something of an official corporate program. It's not all bad, but it's not all good either.We'll start with the good. Gibson has decided to recognize that there are fans inspired by its designs who want to create their own guitars and even sell them on occasion. In recognition of this, Gibson is starting an "authorized partnership" program to allow those creators to build guitars without fear of legal threat.
The initial stages of the Program will see Gibson grant several boutique builders permission to create guitars based on the body shapes that it claims to own. The agreement involves specific terms set by Gibson, reports NewsChannel 5: chief among them that the boutique brands must acknowledge these shapes do indeed belong to Gibson.“We’ve entered into some agreements with three or four boutique guitar companies, and basically, they actually love Gibson, and we actually love them,” Curleigh said in the interview. “We just have to have a conversation around where the lines are between shapes and names, etc. And what’s amazing is, as soon as we enter into those conversations, it leads to a collaborative, creative conversation. So it’s going to work basically, it’s essentially an agreement where they acknowledge: ‘Yup, these are your shapes,’ and we say, ‘you can use them.'”
While it's a step forward for Gibson to enable these companies to create and build off of the inspiration from Gibson, you can already see hints of that old protectionist attitude creeping back in. In order to enter into this sort of agreement, first these companies must bow at the alter of Gibson by acknowledging that it holds trademarks on many of its designs. While that may be something approaching SOP for these types of partnership or licensing agreements, the current legal battle with Dean Guitars puts this very much in question. Whether Gibson does in fact hold valid trademarks on its most treasured guitar designs is subject to the outcome of Dean's counter-suit, in which Dean attempts to invalidate many of those trademarks entirely.Regardless, putting so much emphasis on the acknowledgement that Gibson has these valid trademarks feels like the vestigial remains of the company's old protectionist policies. And, while Curleigh insists that he isn't trying to build this as a revenue stream for Gibson, the agreements do also allow the company to control how many of these 3rd party guitars get sold and to demand royalty fees, so there's that.Add to all of that that Curleigh isn't exactly giving up litigation as an option, too, and one wonders just how much a shift in company culture this is all going to be.
“My last resort, I can tell you as a leader, is always going to be legal. But if a company or a brand leaves us, or me, with no choice, I have to follow that direction,” the CEO continued. “I don’t want to, but part of our brand and our business is intellectual property, and kind of half of the value of some companies are in that. We have to preserve and protect [our trademarks], but I think we can do it in a way that’s not confrontational, it’s more collaborative.”
These types of subtle changes can indeed have outsized effects, but it's all in the follow through. Again, this is for sure a step in a positive direction for Gibson, which has traditionally been very protective of its perceived IP. What remains to be seen is if this is really the cultural change Curleigh promised.
By now the half-baked security in most internet of things (IOT) devices has become a bit of a running joke, leading to amusing Twitter accounts like Internet of Shit that highlight the sordid depth of this particular apathy rabbit hole. And while refrigerators leaking your gmail credentials and tea kettles that expose your home networks are entertaining in their own way, it's easy to lose sight of the fact that the same half-assed security in the IOT space also exists on most home routers, your car, your pacemaker, and countless other essential devices and services your life may depend on.Case in point: just about two years ago, security researchers discovered some major vulnerabilities Medtronic's popular MiniMed and MiniMed Paradigm insulin pumps. At a talk last year, they highlighted how a hacker could trigger the pumps to either withhold insulin doses, or deliver a lethal dose of insulin remotely. But while Medtronic and the FDA warned customers about the vulnerability and issued a recall over time, security researchers Billy Rios and Jonathan Butts found that initially, nobody was doing much to actually fix or replace the existing devices.So Rios and Butts got creative in attempting to convey the scope and simplicity of the threat: they built an app that could use the pumps to kill a theoretical patient:
"We've essentially just created a universal remote for every one of these insulin pumps in the world," Rios says. "I don't know why Medtronic waits for researchers to create an app that could hurt or kill someone before they actually start to take this seriously. Nothing has changed between when we gave our Black Hat talk and three weeks ago."
To target a specific insulin pump, a hacker would need to know the proper serial number of the device they're targeting. But the app simplifies this process by quickly running through all potential serial numbers until it hits the correct one. The gambit seems to have worked: a week after the team demonstrated its proof of concept app to FDA officials in mid-June of this year, Medtronic announced a voluntary recall program. Years after Medtronic first learned about the flaws in these devices, there's now a structure in place that allows patients to use the devices if they want, and replace them for free if they don't.That said, the researchers are still quick to point out that this kind of dysfunction (offering potentially fatally compromised products but having no avenue to correct them) is fairly common in the medical sector:
"...the climate for medical device vulnerability disclosures is still clearly fraught if researchers feel that they need to take extreme, and even potentially dangerous, steps like developing a killer app to spur action."If you think about it, we shouldn't be telling patients, 'hey, you know what, if you want to you could turn on this feature and get killed by a random person.' That makes no sense," QED Security Solutions' Rios says. "There should be some risk acceptance; this is a medical device. But an insecure feature like that just needs to be gone, and they had no mechanism to remove it."
And of course that's not just a problem in the medical sector, but most internet-connected tech sectors. As security researcher Bruce Schneier often points out, it's part of a cycle of dysfunction where the consumer and the manufacturer of a flawed product have already moved on to the next big purchase, often leaving compromised products, and users, in a lurch. And more often than not, when researchers are forced to get creative to highlight the importance of a particular flaw, the companies in question enjoy shooting the messenger.
Moore's Law is well known. But many people think it's about how chip processing power keeps increasing. It's actually about the number and/or density of components on silicon. As such, it applies just as much to memory storage products as to processor chips. It's why you can now buy a one terabyte microSD card for $449.99. Never mind the price: although it's steep, it will inevitably tumble in the next few years, just as happened with lower-capacity microSD cards. What's much more important is what you can store with one terabyte on a tiny, tiny card. Mashable has done the calculations:
About 1,000,000 e-books (at an average size of 1MB per e-book)About 200,000 photos (12-megapixel iPhone XS Live Photos at an average size of 5MB) or 500,000 photos (12-megapixel iPhone XS photos at an average size of 2MB)About 250,000 iTunes songs (at an average size of 4MB for an average 4-minute tune)About 222 Full HD movies from iTunes (at an average of 4.5GB per movie)
Perhaps the most interesting one there is the music. Spotify says it has over 50 million tracks on its service. That means a 256 terabyte microSD could probably hold every track on Spotify, and thus most of the recorded music that is generally available in a digital form. Even with today's one terabyte card, you can probably store the complete catalog of songs in a particular style or genre, which is what many people will be most interested in.In any case, assuming Moore's Law continues to hold, it will soon be possible to buy a 256 terabyte microSD card. Yes, it will be pricey to begin with, but progressively cheaper. At that point, moves to stop unauthorized sharing of music online will be even more pointless than they are now. People won't need to download lots of stuff from dodgy sites any more; they'll just find a friend who has a 256 terabyte microSD card loaded up with all recorded music, and make a copy. After that, they just need to update the parts that interest them -- or find someone with a more recent complete collection.The same will happen to videos, although that's a little way off, since something like a 256 petabyte microSD card will be needed to hold every film that has been digitized. But it too will come, just as the milestone one terabyte capacity has finally arrived, however improbable that might have seemed a few years ago.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.
Earlier this month, we discussed how Gibson Guitar CEO James Curleigh had recently announced a shift in its IP enforcement strategy to try to be more permissive. That has since calcified into an actual formal plan, but we'll get into that more in a separate post because there is enough good and bad in it to be worth discussing. What kicked Curleigh's reveal, however, was backlash from a recent lawsuit filed by Gibson against Armadillo Distribution Enterprises, the parent owner of Dean Guitars. Dean sells several guitars that Gibson claims are trademark violations of its famed "flying v" and "explorer" body shapes. There are differences in the designs, to be clear, but there are also similarities. Even as Curleigh's plans for a more permissive IP attitude for Gibson go into effect, this lawsuit continues.But not without Armadillo punching back, it seems. In response to the suit, Armadillo has decided to counter-sue with claims that Gibson's designs are not only too generic to be worthy of trademark protection, but also that Gibson's actions constitute interference with its legitimate business. We'll start with the trademarks.
The most potentially impactful aspect of the filings relates to the issue of the trademarks of the Flying V, Explorer and ES-335 body shapes. These marks were a key part of Gibson’s original counterfeiting claim, and as part of its defence, Armadillo is not only trying to prove that the claims are without merit, but crucially it also seeks to get the trademarks cancelled altogether.“The above designs have been prominently used and promoted for years and, in some instances, decades,” the suit reads. “All the while, Gibson sat on its purported rights and failed to object.” The suit goes on to claim that Dean has invested millions of dollars promoting and marketing guitars with those shapes in that period, and as such, “some of Gibson’s accused trademarks are invalid because they are generic and/or incapable of serving as a source identifier for guitars”.
As the article points out, there is precedence for this. A decade ago, Fender lost the right to trademark several guitar designs that it had failed to protect, while Gibson itself fell victim to this same thing in the early 2000s. While some may point to this as being evidence that companies must aggressively protect their intellectual property, I would argue that such designs of guitars are not great source-identifiers for the public and probably shouldn't have been afforded trademark protection to begin with. Regardless, if Gibson once again allowed others to use variations of these designs, that point is moot, as the designs would have become generic in the marketplace.As to the interference with Dean's business in the market, it seems that Gibson didn't only contact Dean about the alleged infringement, but dealers of guitars as well.
The suit cites the example of Carlino Guitars – a guitar shop in Medford, Massachusetts – which it claims was sent cease and desist letters by Gibson in April and May 2019. The letters allegedly demanded the removal of all Dean V and Z guitars from the shop’s website, accused them of being party to trademark infringement by stocking Dean instruments, and threatened the store with legal action if they didn’t comply.The suit claims that based on “information and belief” that Gibson sent similar letters to other dealers and retailers, “with the intent of disruption Armadillo’s sales and contractual relationships”.
This is fairly aggressive on the part of Gibson, as these guitar dealers are stocking Dean guitars with the good faith understanding that they aren't selling counterfeit products. And, frankly, given Gibson's failure to protect their supposedly valid trademarks in the past, it sure reads as though Gibson jumped the gun on sending out these legal notices to dealers before getting its own lawsuit over the trademark claims adjudicated. With that move, Dean's counterclaim probably rests on how the court judges the trademark issue, which is an avenue of legal exposure that is unnecessary for Gibson to have endured. I'm a bit surprised the company's legal team wasn't more cautious.In the end, because of Gibson's aggressive enforcement stance, even as the company is proclaiming a new era of relaxed IP enforcement, there is now the very real risk of the company losing its trademarks and incurring costs.
The counterclaim demands the cancellation of Gibson’s Flying V, Explorer and ES-335 body shape trademarks, and seeks the “maximum damages permitted by law” for the alleged interference caused by the company’s communication with Dean and Gibson dealers.
The outcome of this will be interesting, if only to see if Gibson will suffer one final blow for its previously aggressive trademark enforcement.
Another small victory for Constitutional rights comes via the same federal magistrate who previously rejected another law enforcement request to compel production of fingerprints to unlock a phone.In May, federal magistrate judge Ronald E. Bush said compelled production of fingerprints violates both the Fourth and Fifth Amendment. He declared the fingerprint application itself to be a search, one performed with the assistance of the suspect. There's the Fourth Amendment issue.And since the government hadn't provided evidence tying the suspect to the phone, producing fingerprints would provide the government with testimonial evidence it didn't have. The government wanted to search the phone for "indica of ownership" -- something it hoped to perform after it had already compelled production of fingerprints. The government had no "foregone conclusion" to work with, so forcing a suspect to give up information only they know (namely, possibly verifying ownership by unlocking the phone) implicated his Fifth Amendment protections against being forced to testify against himself.In this case, Judge Bush has handed down another denial [PDF]. Once again, the government wants to compel the unlocking of a device but doesn't have everything it needs. What the government does have isn't much. The evidence tying the suspect to child porn possession is mostly ephemeral: IP addresses, email addresses, and online accounts. Using this as probable cause, the government is asking to search electronics seized from a searched residence. (The government also wants to search the suspect's car, presumably in case any electronics are stashed there.)As the court points out, the government wants to do things to a phone it hasn't shown will actually need to have this stuff done to it. It's working off an assumption and that assumption isn't enough for the judge to agree to the government's proposed rights violations.
The affidavit describes a feature of the smartphone which, according to the investigator, offers users “the ability to unlock the device via the use of a fingerprint or thumbprint.” It also describes that, in the investigator’s “training and experience, cellular telephone users often enable” such a touch identification security feature “because it is considered to be a more convenient way to unlock the device than by entering a numeric or alphanumeric passcode or password, as well as a more secure way to protect the device’s contents. This is particularly true when the user(s) of the device are engaged in criminal activities and thus have a heightened concern about securing the contents of the device.”The affiant also states that “[t]he passcode or password that would unlock the cellular telephone device found during the search of [the individual, the vehicle, or the residence] is not known to law enforcement. Thus, it will likely be necessary for law enforcement to press [the individual’s] fingers and thumbs to the [smartphone] found during the search . . . in an attempt to unlock the device for the purpose of executing the search authorized by this warrant.” However, the affidavit does not describe a particular reason to believe that the subject cellphone has enabled a touch identification feature or would have such feature enabled if the device were seized during execution of a search warrant.
The attached footnote provides further reasons why the magistrate is rejecting this application for application of fingerprints.
Regardless of the constitutional issues, the application may also be premature and not ripe for decision. The applicant presupposes that a search will uncover and result in seizure of a specific smartphone at the time of the search but does not identify the device beyond a make and model and does not account for the possibility that a search might uncover additional or different devices.
The court reminds the government that it can no longer take phone searches as lightly as it once did. The Supreme Court's Riley decision made it clear phones are not pants pockets or suitcases or file cabinets. In many cases, they can provide access to a large portion of a person's life. When the government wants access to this wealth of information, it needs to deal with sureties and particulars, not assumptions devices will hold evidence and suspects will provide the keys for entrance. Here, the government does not have enough to demand the production of these keys.Further, the government cannot demand someone testify against himself. While other courts are still wrestling with this question, Judge Bush's stance on this issue is crystal clear:
[S]ome actions are not within the Fifth Amendment privilege. Furnishing a blood sample, for instance, or providing a handwriting or voice exemplar, standing in a lineup, or submitting to fingerprinting for identification purposes are not testimonial communications because such actions do not require the suspect “to disclose any knowledge he might have” or to “speak his guilt.” Doe, 487 U.S. at 210–211 (citations omitted). The relevant distinction is the “extortion of information from the accused, . . . the attempt to force him to disclose the contents of his own mind.” Id. at 211 (citations omitted).There is exactly that “extortion” of information here, however. The Government seeks to use the force of a search warrant to compel an individual to literally “open” the “privacies of [his/her] life,” Riley v. California, 573 U.S. at 403, and, by doing so, “to conced[e] the existence, possession and control, and authenticity of the documents tend[ing] to incriminate him.” In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d at 1343. The act of being forced to use one’s fingerprint to successfully open the contents of a smartphone is the equivalent of forcing a tangible oral or written statement from that individual that he or she has at least some degree of possession and control of the phone and possession, control and knowledge of its contents.
Once again, the court finds compelled fingerprint production to unlock devices "testimonial." And if it's testimonial, it's blocked by the Fifth Amendment. The government will just have to find another way to get at the evidence it thinks might reside in the phones it thinks it might find whenever it actually manages to get a warrant signed by this judge. Until then, it seriously needs to rethink its approach to this problem because the usual stuff isn't going to work in this court.
Between crowdsourcing and the explosion of indie video game developers, many of which are far more permissive in IP realms and far better at actually connecting with their fans, we are perhaps entering a golden age for fan involvement in the video games they love. And it's not just the indie developers getting into this game either; the AAA publishers are, too. One example of this came up last year, when Ubisoft worked with HitRECord to allow fans of the Beyond Good and Evil franchise to submit potential in-game music creations. On HitRECord, other fans would be able to vote and even remix those works. At the end of it all, any music Ubisoft used for Beyond Good and Evil 2 would be paid for out of a pool of money the company had set aside. Cool, right?Not for some in the gaming industry itself. Many who work in the industry decried Ubisoft's program as denying those who make music professionally income for the creation of the game music. Others called Ubisoft's potential payment to fans for their creations "on-spec" solicitations, in which companies only pay for work that actually makes it into the game, a practice that is seen as generally unethical in the industry. Except neither of those criticisms were accurate. Ubisoft specifically carved out a few places for fans to put music into the game, not the entire game. And the "on-spec" accusation would only make sense if these fans were in the gaming music industry, which they weren't. Instead, Ubisoft was actually just trying to connect with its own fans and create a cool program in which those fans could contribute artistically to the game they love, and even make a little money doing so.Fortunately, Ubisoft has apparently not let the criticism keep it from continuing with these experiments, as the company has put out the call for the same sort of program for its next Watchdogs game.
Last week, actor Joseph Gordon-Levitt announced on Twitter that his music production company, HitRecord, would once again partner with Ubisoft, this time to help the publisher create 10 songs for its upcoming open world hacker game, Watch Dogs: Legion. This immediately re-ignited an old debate about the ethics of soliciting work for big budget games from fans.“10 original songs. Collaboratively made for #WatchDogsLegion. By YOU. Come play w/ us,” Gordon-Levitt tweeted on July 11. According to the FAQ on Ubisoft’s website, the publisher will be paying $20,000 for the original music which will be played during the game, like, as one example offered, while you’re driving around the game’s version of London. At $2,000 per song, the proceeds will end up being paid out through HitRecord to whichever of the platform’s users helped create the music.
Once again, you have to really, really work hard to find something unethical in any of that. And, yet, all of the same criticisms are arising. On the one hand, sure, it's mildly understandable that creatives don't like being routed around by gaming companies. On the other hand, it's hard to come off as more anti-fan than complaining about a $20k payout for 10 fan-made songs within a professional game. And yet again, here come the complaints about this being some flavor of on-spec work.
“This sucks,” tweeted Mike Bithell, developer of Thomas Was Alone and the upcoming John Wick Hex game, under the “nospec” hashtag. “Pay people for their labour. Stop exploiting fans and hobbyists, while devaluing the work of those with the gall to actually expect consistent payment for work done. Do better Ubi, we’re counting on you.”“I am still not a fan of what read[s] as ‘spec work under a proprietary open non-exclusive license’ model, & prefer the ‘pay someone to browse SoundCloud to find cool music for which you then talk to the creator & pay them too,’” tweeted Vambleer’s Rami Ismail.
And yet the fans appear to love this, having contributed to the previous game enough that Ubisoft wanted to do it all over again. Here's the thing: if professional video game music composers are confident in their work, they really shouldn't see this as some kind of a huge threat. And I say that as someone that loves video game music. A game company trying to get fans involved in certain parts of the game creation isn't some great evil. It's CwF+RtB, which is something we like around these parts.
The upcoming 2020 election season may possibly end up as the busiest, most contentious and most expensive thus far. This potentially unprecedented scenario we are witnessing has some worried that political action groups and other political players will resort to underhanded tactics to try and cripple political opponents through manipulative ads. And there is, in […]The post Transparency in Political Ads: What's Next? appeared first on Adotas.
Two years ago, we wrote about a stunning (and horrifying) study that explained how patents deeply contributed to the opioid crisis. It described the lengths that drug companies -- including OxyContin maker Purdue Pharma -- went through to block any and all generic competition. It was quite a story.However, on a recent episode of Terry Gross's "Fresh Air" she interviewed medical bioethicist Travis Rieder about his new book, In Pain. It tells the story of how, even as a "medical bioethicist," Rieder himself got addicted to opioids after being in a severe motorcycle accident -- and then was shocked to find that none of his doctors either knew how or cared enough to help him get off the painkillers. The story is fascinating -- and harrowing.Deep into the discussion, however, one part caught my attention. Rieder tells a story about how, rather than putting him on opioids, they could have just given him acetaminophen:
GROSS: One of the pain killers that you were given when you were in the hospital was intravenous acetaminophen. And you thought that that was really, surprisingly effective as a painkiller, but you were only given a few doses, even though you kind of begged for more more because it was effective and not habit-forming. So why couldn't you get more of it?RIEDER: Yeah, this is such a wild story. I didn't know for a long time, and so all I had was this immediate experience where, after that fifth surgery, when I was really behind the pain, the pain management team upped all of the doses of everything I was on, but then also gave me three doses over 24 hours of IV acetaminophen. And for me, the way I described it at the time, it was as good as morphine in the short term, but it didn't knock me out. It didn't sedate me. I didn't have to worry about my breathing. And so I really liked it for that reason, and I asked for more.And I remember one of the residents being kind of hesitant - you know, one of these young doctors in training - and kind of mumbling something about, I don't think you can have more because of your liver, or something. I didn't question it.
But, turns out, it's got nothing to do with his liver:
Months later, I'm an invited speaker at an anesthesiology conference, and I'm hanging out with some of the docs over a coffee break. And I'm telling them the story because I'm like, hey, I've got these, you know, really smart people. I'm going to pick their brains. And I get to the point where the resident mumbles this excuse to me, and they all chuckle. And I look at them, and I say, what? Is that not the reason? And I can tell in that moment that they all know something and that they all know that they all know. And one of them looks up at me and says, they're not giving it to you because it's too expensive.(Laughter) And my mind was blown. I was like, wait a minute - what do you mean it's too expensive? It's just Tylenol, right? They said, yeah, but the IV form is still on patent. And so once it goes off patent, it'll be standard of care because it works great. But, you know, for now, it's too expensive, so most of us have hospital orders not to use it.
So, let's get everyone hopped up on addictive and destructive opioids, because this form of Tylenol is still on patent. That's just great. He continues:
I think what it started for me was a dive down the rabbit hole of, how does money play a role in how we treat pain and how we overutilize opioids for pain, right? Because what it made really clear is that opioids are dirt-cheap because a bunch of them have been off patent for decades, and that these other sorts of therapies can be really expensive.
For all the talk of how patents create incentives for new life-saving medicines, it's important to recognize that they create some pretty fucked up incentives at times as well.
When it comes to cable cord-cutting and the set box vs. streaming revolutions, I have always argued that professional and college sports plays an outsized roll. In fact, sports programming is one of the few threads by which the cable television industry is currently hanging. Some leagues have made better use of these trends than others, with Major League Baseball still representing the gold standard in sports streaming, with the other major sports leagues riding along in its wake. And, yet, one of the most common complaints about streaming copyright infringement one can find out there is that of live-streaming professional sports. While much of this comes from the broadcast partners of these leagues, the leagues themselves still make a significant amount of noise about pirated sports streaming.It's never made sense to me. Sports league revenues generally are dominated by two categories: merchandise and advertising revenue. The former gets boosted with the maximum number of eyeballs on the product while the latter becomes something of a complicated mess, given that ad revenues have traditionally gone to broadcast partners, which translate into large contracts with revenue going from the broadcasters to the leagues. Despite that complication, the interest here is in advertising revenue. I wrote the following paragraph way back in 2012:
Here's my question: why is any of this necessary? With that same smart phone, I could have gone to one of dozens of websites (evil, evil websites) that would simply stream the games I wanted directly to my device for free. More to the point, they'd stream the local broadcast that I wanted, complete with commercials. Why wouldn't the major sports leagues do the same thing? If advertising is still the major money-maker for professional sports (and, along with merchandise, it is), why wouldn't they want to increase their reach by offering their own free advertisement-laden stream? Coupled with location identifiers, I'd think the leagues could partner with local broadcasters to make sure that people were getting the same geographical broadcast they'd get watching at home. Again, the same commercials can be in place, so what's lost? Why charge me $50 a season to watch the game on my phone or tablet, but not levy that same charge for watching on my television? It's the ads that matter, isn't it?
The ads, and the eyeballs, of course. Pirate streams increase reach, full stop. Why wouldn't leagues and broadcasters see that reach as a good thing? Well, according to a recent MUSO study, they absolutely should.
In their study, the companies looked at eight matches of the previous Premier League season. They found that these matches had an average pirate audience of 7.1 million viewers across as many as 149 countries. Most of these unauthorized viewers came from China, where nearly a million people tuned in per match, followed by Vietnam, Kenya, India and Nigeria. The U.S. and the U.K. took 10th and 11th places among the piracy audience.These numbers were complemented with GumGum’s marketing and sponsorship insights. After factoring in the exposure of different brands in various regions, they came to the conclusion that there is £1 million in uncaptured sponsorship media value per match. The majority of value is linked to field-side LED advertising and the sponsorship placements on the front of the players’ jerseys. While pirates may not pay, they definitely see these sponsored messages.
Based on the study, it seems that even a lack of localized advertising still leaves an enormous amount of money on the table in the form of on-the-field sponsorships. I would add that, at least for large global brands, there is value in the commercials as well in pirated streaming. Per the study, the retort from broadcasters and leagues thus far appears to be complaints that, because they cannot control or directly count the streams in question, those viewers aren't represented in advertising or sponsorship contracts.But all that tells me is that that's the problem. Not the pirated streams themselves, but the failure to capture the boon of those streams in the contracts with sponsors and advertisers. Given that, and considering the laughable game of whac-a-mole that is blocking pirate streams, how is it not the better solution to put these pirate stream numbers in front of sponsors and increase contract costs for sponsorships as a result? When MUSO, an antipiracy outfit, states the following, it's probably time for rightsholders to listen.
MUSO co-founder and CEO Andy Chatterley hopes that the findings will change the perception of pirates. He emphasizes that this audience should certainly not be disregarded.“Piracy audiences have too long been disregarded as offering no real value to rights holders and distributors, but the reality is that these huge audiences still see the same shirt sponsors and commercials as people watching the game via a licensed channel,” Chatterley says.
In other words, these streams are not an enemy, but an opportunity, if only the leagues would finally take notice.
The EFF has published a primer on IMSI catchers. Harris Corporation's success in this market has led to near-genericide, as almost every one of these cell tower spoofers is usually referred to as a "stingray."The white paper [PDF], titled "Gotta Catch 'Em All," runs down what's known about cell-site simulators used by a number of government agencies. Most of this has been gleaned from secondhand info -- the stuff that leaks out during prosecutions or as the result of FOIA requests.The technical capabilities of CSSs have been kept under wraps for years. The reasoning behind this opacity is that if criminals know how these devices work, they'll be able to avoid being tracked by them. There may be a few technical details that might prove useful in this fashion, but what is known about Stingray devices is that the best way to avoid being tracked by them is to simply not use a cellphone. But who doesn't use a cellphone?The report is definitely worth reading, even if you've stayed on top of these developments over the past several years. It breaks down the technical subject matter in a way that makes clear what CSSs can and can't do -- and how they're capable of disrupting cellphone networks while in use.While CSSs can intercept communications, it's hardly worth the effort. Unless the CSS can talk the phone into accepting a 2G connection (which eliminates encryption and severely limits the type of communications originating from the dumbed-down phone), it just doesn't work. This doesn't mean the devices are never used this way. But it does mean it's not a very attractive option.On the other hand, CSSs impersonate cell towers, so they're able to pull all sorts of info from every device forced to connect with the faux cell tower. These devices are used most often to locate criminal suspects, meaning precise GPS location is a must-have. Operating on their own, cell-site simulators can't generate pinpoint accuracy. Working in conjunction with nearby towers, they can triangulate signals to provide better location info. But there's another option -- one rarely discussed in courtroom proceedings. CSSs can also force phones to give up precise location info.First, the Stingray extracts info from nearby cell towers. Using this info (which the EFF points out anyone can access), the CSS alters its signal to become the highest priority connection in the area of operation. Once it's done this, GPS info can be coaxed from phones now connected to the fake cell tower.
[T]he attacker creates a “RRC Connection Reconfiguration” command, which contains the cell IDs of at least 3 neighbouring cell towers and their connection frequencies and sends this command to their target’s phone.Usually, the “RRC Connection Reconfiguration” command is used to modify an existing connection to a base station, but the attacker is only interested in the target phone’s initial response to its message. This response contains the signal strengths of the previously specified cell towers, which can then be used to find the phone’s location via trilateration.For newer phones and networks which support the “locationInfo-r10” feature, this report will also contain the phone’s exact GPS coordinates, meaning no trilateration calculations are required. The exact GPS coordinates are just a field in the response (Shaik et al, 2017).
There are few options available for people wanting to use a cellphone but are also wanting to avoid being swept up by a Stingray. As the report notes, there are a few cell tower spoofer detection apps on the market, but they may be more likely to generate false positives than detect IMSI catchers. There's no baseline for carrier behavior, much less "normal" Stingray use.And, in any event, the EFF isn't publishing a handbook on how to evade detection by these devices. It's simply informing the public of the power of these devices, which are becoming as ubiquitous as the phones they track and trace. Since the public hasn't been invited to any these discussions by law enforcement agencies, it's up to everyone else to detail known capabilities and assess the potential damage to the public's expectation of privacy.
A short while ago, we discussed a rather concerning lawsuit brought by AM General LLC, the company that makes Humvees, against Activision, the game publisher that occasionally publishes Call of Duty games that include depictions of Humvees. AM General's claims are pretty silly, suggesting that players of the games will think that those games were somehow created by or endorsed by AM General. I can't imagine that's the case; instead, most people are likely to think that Activision is attempting realism in their warfare game, since you basically cannot make an American warfare game accurately without including Humvees. Activision's response was on First Amendment grounds, arguing that its games are partly an historically accurate work of art, for which including Humvees is accurate and fair use.As we pointed out in our original post, this case has great implications for the wider video game industry. Because of that, perhaps it's not hugely surprising to see that the Entertainment Software Association has jumped into the case with an amicus brief arguing for the granting of Activision's summary judgement motion. The whole thing is worth reading, but you can tell that the ESA's viewpoints on this are framed by the wider gaming industry.
AM General LLC’s (“AM General”) lawsuit raises issues of substantial importance to the video-game industry. Today’s video games are exceptionally diverse in their artistic expression, ranging from the action-adventure of Activision’s Call of Duty franchise, to educational games like Where in the World is Carmen San Diego?, to sports-themed games like Madden NFL, to historical simulation games like the Civilization franchise, to games that are derived from motion pictures like Star Wars or that inspire motion pictures like Assassin’s Creed. Whether factbased, fictional, or somewhere in between, many of these games refer to or incorporate real-life historical and cultural elements – often including real products like the military vehicles at issue in this case, and the trademarks, trade dress, and other distinctive elements used to accurately identify and depict those products – to create realistic interactive environments that facilitate expression, enhance verisimilitude, and enrich the user experience. If AM General succeeds in punishing Activision for exercising its First Amendment right to depict realistic U.S. military vehicles in Call of Duty – or in forcing Activision to endure the burdens of a trial to vindicate its First Amendment rights – ESA’s members and gamers will suffer. Video-game developers and publishers will be exposed to even more frequent litigation, with some developers and publishers foregoing the use of real products in their works to avoid being dragged into court. Because AM General’s theory is antithetical to the rights of ESA’s members – and is irreconcilable with well-settled authority governing the use of real products in expressive works – ESA respectfully requests that this Court grant Activision’s motion for summary judgment.
There are many reasons why AM General's lawsuit should fail, but the risk to artistic output must certainly be first and foremost. The idea that a storied vehicle used in American warfare could be blocked from being depicted in artistic expression over intellectual property rights is purely antithetical to the First Amendment. What I suspect is happening here is something else that regularly annoys me: the dismissal of video games as artistic expression. After all, it's not as though we've heard about many fights between the Humvee people and the film industry. And, yet, the number of depictions of Humvees in TV and film is countless. So why should Call of Duty be any different?The ESA brief makes this point in the brief.
VIDEO GAMES ARE CULTURALLY SIGNIFICANT EXPRESSIVE WORKS Since the creation of the first electronic game in the 1950s – a highly pixelated version of tic-tac-toe entitled Noughts and Crosses3 – video games have evolved into complex works that are similar to interactive movies. Video games equal books, films, and television shows in terms of cultural significance and share myriad elements with these more traditional forms of expression. Like novels, many video games have multi-dimensional characters, complex storylines, and carefully crafted dialogue. Like films and television shows, many video games contain story arcs, visual images, and musical scores that contribute to their emotional impact.Video games have become an integral part of American culture. In 2018, nearly 165 million adults in the United States played video games, and 75 percent of all Americans had at least one gamer in their household.
In other words, Call of Duty is every bit as much art and culture as Saving Private Ryan, in which case it is afforded all of the same First Amendment and fair use protections as that movie. Given that, the use of a Humvee is pretty clear fair use in an expressive work. If found to be otherwise, the gaming industry writ large is in a whole lot of trouble, particularly for any game that wants to depict realism.But I don't think it'll get that far.
For a while now, we've been explaining why a plan to create a copyright "small claims" process would be a disaster for free speech and a boon to copyright trolling. Unfortunately, it appears that the latest bill proposing this awful idea has a real chance to move forward. EFF has put up an action page urging people to contact their elected officials and ask them not to approve the CASE Act.As EFF's Ernest Falcon details in the latest blog post there are so many reasons why this is a bad idea. Despite all the claims that this is just about "small claims" and therefore can't be used for trolling/shakedowns, this shows just how insanely out of touch lawmakers are with most Americans. A $15,000 award would bankrupt plenty of people:
Proponents of the legislation argue that the bill's cap on statutory damages in a new small claims tribunal will protect accused infringers. But the limits imposed by the CASE Act of $15,000 per work are far higher than the damages caps in most state small claims courtsand they don't require any proof of harm or illicit profit. The Register of Copyrights would be free to raise that cap at any time. And the CASE Act would also remove a vital rule that protects Internet users - the registration precondition on statutory damages.[....]For many Americans, where the median income is $57,652 per year, this $7,500 price tag for what has become regular Internet behavior would result in life-altering lawsuits from copyright trolls that will exploit this new law. That is what happens when you eliminate the processes that tend to ensure only a truly motivated copyright holder can obtain statutory damages.
I cut out the paragraph in the middle because there's a separate point around that. It explains how this new act would remove the current requirement that a work be registered with the Copyright Office before the copyright holder could sue. This would open up a vast trove of potential infringements. And just think of all the copyright trolling operations that will swoop in and promise anyone posting random photos to social media that they can go out and collect "free money" for them:
Today, someone who is going to sue a person for copyright infringement has to register their work with the Copyright Office before the infringement began, or within three months of first publication, in order to be entitled to statutory damages. Without a timely registration, violating someone's copyright would only put an infringer on the hook for what the violation actually cost the copyright holder (called actual damages), or the infringer's profits. This is a key protection for the public because copyright is ubiquitous: it automatically covers nearly every creative work from the moment it's set down in tangible form. But not every scribble, snapshot, or notepad is eligible for statutory damagesonly the ones that U.S. authors make a small effort to protect up front by filing for registration. But if Congress passes this bill, the timely registration requirement will no longer be a requirement for no-proof statutory damages of up to $7,500 per work. In other words, nearly every photo, video, or bit of text on the Internet can suddenly carry a $7,500 price tag if uploaded, downloaded, or shared even if the actual harm from that copying is nil.
Related to this is how much more massively this bill will allow censorship-by-copyright. This is already a problem under the notice-and-takedown system of the DMCA's Section 512. But the CASE Act will make this much, much worse:
Another major problem with the CASE Act is how it transforms a Digital Millennium Copyright Act (DMCA) Notice into a long-term censorship tool. Under current law, if a copyright holder submits a takedown notice to an online platform alleging that your post infringed their copyright, you have a right to file a counter-notice if you disagree. There are many times when false takedown claims occur on the Internet and perfectly lawful speech is suppressed, and counter-notices are an important, though flawed, check on abuse. But the CASE Act would allow a party that filed a takedown notice to also bring a claim with the new small claims tribunal. When they do so, the Internet platform doesn't have to honor the counter-notice by putting the posted material back online within 14 days. Already, some of the worst abuses of the DMCA occur with time-sensitive material, as even a false infringement notice can effectively censor that material for up to two weeks during a newsworthy event, for example. The CASE Act would allow unscrupulous filers to extend that period by months, for a small filing fee.
And that doesn't even get into the due process concerns:
This bill creates a situation where Internet users could easily be on the hook for multiple $5,000 copyright infringement judgments without many of the traditional legal safeguards or rights of appeal our justice system provides.The legislation would allow the Copyright Office to create a determination process for claims seeking up to $5,000 in damages:
Regulations For Smaller Claims.The Register of Copyrights shall establish regulations to provide for the consideration and determination, by at least one Copyright Claims Officer, of any claim under this chapter in which total damages sought do not exceed $5,000 (exclusive of attorneys' fees and costs). A determination issued under this subsection shall have the same effect as a determination issued by the entire Copyright Claims Board.
This could be read as permission for the Copyright Office to dispense with even the meager procedural protections provided elsewhere in the bill when a rightsholder asks for $5000 or less. In essence, what this means is any Internet user who uploads a copyrighted work could find themselves subject to a largely unappealable $5,000 penalty without anything resembling a trial or evidentiary hearing. Ever share a meme, share a photo that isn't yours, or download a photo you didn't create? Under this legislation, you could easily find yourself stuck with a $5,000 judgment debt following the most trivial nod towards due process.
There are so many problems with this legislation it's truly disturbing that it appears to have some momentum. The idea that anyone adequately informed on the state of copyright law today can look at it and think there's too little litigation is preposterous. But, that's where we are.
Usually, when we're talking about video game footage being used to attempt to fool others into thinking it's real footage, it's been done by nation states looking to either pretend they're far better at war than they are, that their weapons are far cooler than they actually are, or to frame their adversaries for doing nefarious things far more than they actually are. Those cases aside, it does also happen that news organizations get fooled by this sort of footage too. And we should probably only expect this sort of thing to occur more often, given the leaps in graphical realism the gaming industry takes every year or so.And so it's only with a little bit of meanness that I bring you the following video.As you can tell from the title of the video, it's a gameplay video from Grand Theft Auto 5, in which the player is piloting a passenger aircraft and nearly causes an explosion when an oil tanker crosses the runway as it's landing. Cool. These videos of GTA5 are common and showed off regularly on the internet by players amazed at what they can pull off in the open world game, not to mention the thrilling nature of how relatively realistic it looks.Realistic enough, it seems, for Pakistani minister Khurram Nawaz Gandapur to retweet the video alongside his now-deleted tweet stating: "Narrow escape of an aircraft which could have ended in a great disaster. Miraculous save by the pilot's presence of mind."
He apparently confused a GTA V clip with real life, and tweeted praising the pilot for excellent skills. The video showed a Airbus A380 flying over a city and avoid an oil tanker in the runway as it was about to land. Gandapur tweeted, “Narrow escape of an aircraft which could have ended in a great disaster. Miraculous save by the pilot’s presence of mind.”
I love stories like this. Again, it's not really about laughing at someone for getting fooled. What interests me more is both how cool it is that video game footage is getting realistic enough to regularly fool people into thinking its real footage, and how terrifying it is to think of the mayhem that might cause in the future. After all, it's all well and good for a country to promote its military might by using game footage of some terrifying weapon... until it's believable enough to cause another adversarial nation to react in real life.Still, I hope whoever the pilot of the GTA5 plane is from that video feels they have an extra feather in their cap over getting a clap on the back from a Pakistani minister, because that's pretty cool.
So we just wrote about the 2nd Circuit Appeals court affirming a victory for the Knight 1st Amendment Center against Donald Trump, making it clear that he cannot block followers on social media. As we noted, the case is very fact specific, and people shouldn't read too much into it. But, in general, it does find that if someone is a public official, using social media for official government purposes, and creating an open public forum out of that, they cannot block followers based on the views of those followers -- as that is the state engaging in impermissible viewpoint discrimination.Some Trump supporters then spun that around on the other side of the aisle, picking out the fact that freshman Congresswoman Alexandria Ocasio-Cortez has blocked people on Twitter as well. Indeed, as Scott Greenfield points out, in the wake of the 2nd Circuit ruling, former NY State Assemblyman Dov Hikind has already sued Ocasio-Cortez, pointing out that she has him blocked on Twitter.And, again, the whole point we tried to make with our post about the Trump ruling is that the rules are very fact specific -- but based on what's known so far, it looks like Hikind is absolutely correct. AOC famously uses her Twitter feed for official government business all the time. And if she's blocked Hikind for the way he expresses his views, it seems likely that she, too, is on the wrong side of the Constitution. From the lawsuit, it appears Hikind is very much blocked by AOC:
I've seen some people trying to distinguish the two cases -- but mostly that seems based on their political views, and whether they tend to support Trump or AOC. And that's a problem. There may be distinguishing factors that come out later, but from what's laid out in the lawsuit as presented, it seems like Hikind's case is pretty much identical to the Knight case, and AOC shouldn't be allowed to block people from this particular account. One possible distinction would be if AOC can prove that the decisions to block were not based on content (a violation of the 1st Amendment), but on actions, such as harassment -- however, it would be very, very difficult to make that case in a credible way that doesn't also create all sorts of knock-on consequences for speech.I've seen some raise issues about how she should be able to make use of the tools provided on the platform to block trolls and harassers, but, again, that applies equally to Trump. And going back to basics, if the government official is creating an open forum, they cannot block people based on their expression. That's sort of fundamental to the 1st Amendment. And thus, if you agree that Trump can't block users, it seems that should apply equally to AOC, no matter if you support one of them, neither of them or even (amazingly) both of them.
Over the last decade, we have been the witness of the digital age which to some extent has revolutionized our daily lives. The internet itself, since its evolution, has played a humongous part in changing our behaviors. Now, with just one click of a button, people can access information of all kinds, communicate with each […]The post Social Media: How to secure our data and how secure is it appeared first on Adotas.
As we've discussed previously, the past several years have seen the major music industry players paint an entirely new anti-piracy target on the backs of stream-ripping sites. These sites, which allow users to plug in the address for a YouTube video and get an audio rip outputted, are quite often used to generate audio files of copyrighted materials. This, however, is most certainly not their only use. In fact, there are many legitimate uses for these sites. I, myself, often use them to convert publicly available lectures and educational material put out by everything from universities to technology manufacturers so that I can listen to them while on the go. In this way, the music industry is once again taking a tool that can be but is not always used for copyright infringement and attempting to carpet bomb them all to hell.And now they appear to have found an ally in YouTube, which recently and rather silently began blocking access to the sites from known stream-ripping websites.
Several operators of YouTube-to-MP3 rippers have confirmed that the streaming service is actively blocking requests from their sites.“All my servers are blocked with error ‘HTTP Error 429: Too Many Requests’,” the operator of Dlnowsoft.com informs TorrentFreak. As a result, the stream-ripping site currently displays a “service temporarily unavailable, we will come back soon” error message.The site in question is not alone. Mp3-youtube.download, another stream-ripper, is facing a similar issue. According to its operator, something changed yesterday evening and users now see a ‘this URL does not exist’ error message when they try to convert a YouTube clip. The massively popular Onlinevideoconverter.com, which is among the top 200 most-visited sites on the Internet, appears to be affected as well.
On the one hand, this isn't the most surprising development in human history. Like any service provider, there is a certain amount of instinct in wanting to retain control over one's product. Stream-ripping sites route around the control YouTube would otherwise have.That being said, it's an odd move for a company that used to tout a mantra of "Don't be evil." After all, it wouldn't take a lot of work or thought to argue convincingly that removing the ability for people to hear educational materials on the go, such as I do, is some level of bad, if not evil. On top of that, how about any artist or content creator who might actually enjoy the fact that their material can be made audibly available in this manner? Certainly the number of people that fit such a category is not zero. Google's new policy surely is harming them, is it not?All of this is made even more strange in that Google didn't give any heads up about this new policy, isn't talking about it now, and has to know that it isn't going to work long-term.
None of the site operators we heard from was warned by YouTube in advance. We also reached out to the video streaming service for a comment and further details, but at the time of writing, we have yet to hear back.While YouTube’s efforts, intentional or not, are effective, they will likely trigger a cat-and-mouse game. The operator of a popular stream-ripper, who prefers to remain anonymous, managed to get around the blockade by deploying several proxy servers.
I've seen this movie before and I know how it ends. And for what? To block sites that are sometimes used by users to infringe, but not always, and to appease a music industry that is never, ever, ever going to be on YouTube's side? Come on.
A month after his partner in crime Paul Hansmeier was sentenced to 14 years in prison, with scathing commentary from the judge in the case about Hansmeier and his copyright trolling scheme, John Steele has been sentenced to five years in prison in a sentencing that appeared to go quite differently than Hansmeier's. In front of the very same judge, a very different story was told. At the Hansmeier hearing, the judge said this:
"It is almost incalculable how much your abuse of trust has harmed the administration of justice," [Judge Joan] Ericksen said during the sentencing hearing in U.S. District Court in Minneapolis.
At the Steele hearing, after federal prosecutors apparently heaped praise upon Steele for confessing, and helping build the case against Hansmeier, Erickson gave Steele a chance to speak, at which point he at least put on a credible performance of contrition. He explained how he had met Hansmeier, how Paul had concocted the scheme and he joined in -- including lying to federal judges about what they were up to. From the Star Tribune's Dan Browning's excellent reporting:
First, he said, he enrolled at the University of Minnesota Law School at the age of 37 without any sense of mission other than making money. It was there that he met and befriended Hansmeier, which led to a second poor decision in April 2010.I'll never forget that day, Steele said, choking up. I received a call from Paul Hansmeier about an idea he had about seeding pornography content online.The third bad decision came when federal judges around the country began questioning Hansmeier's and Steele's methods of filing hundreds of lawsuits to identify the owners of computers that were used to download pornography so that they could pressure them to settle to avoid public humiliation.Steele said he could have told the judges the truth but opted to blame others and hide behind offshore companies that had technical ownership of the copyrights on the movies.
This is... a very different version of Steele. I remember the long interview he gave with Kashmir Hill where he boasted of the success he was having and mocked the idea that his copyright trolling, by threatening to expose people's porn habits, was unethical by saying:
People don't like to get caught doing anything wrong, he says. They should be embarrassed about the stealing.
Interesting quote. Or then there's the interview Steele did with Joe Mullin in which he did his usual bluster after a judge (Otis Wright) had first called him on his bullshit trolling scam. At the time, Steele seemed overly boastful of his ability to succeed:
It's not our job tothere was no evidence against us! I think everyone, even the people that dislike anti-piracy litigation, would agree that I don't have to answer questions if I don't want to. That's my right. The fact that people take the Fifth Amendment, against compelled testimony, is not allowed to be a negative inference.I have no involvement in this case. I've never made a misrepresentation [to the court], either me or Paul Hansmeier.This judge is completely biased against our type of litigation. Anyone who's researched this judge knows it. There have been some very harsh rulings by this judge against intellectual property plaintiffs. I think there were some errors made, and that's why we have appellate courts.I think the judge knows we're going to appeal. He wrote that the sanctions were designed to cost just less than [an effective appeal]. Look, you may hate me and the litigation that's gone on in the past, but most people have to be a little nervous when a judge puts out a number and says that.
In that interview, he insisted that he had "no involvement" with the shell companies AF Holdings and Ingenuity 13. Of course, part of the federal charges, which Steele admitted to in great detail in his guilty plea, was that he and Hansmeier set up AF Holdings and Ingenuity 13. In his guilty plea documents:
In or about 2011, defendants convinced R.R., theowner of Heartbreaker Productions, to transfer the copyrights to Sexual Obsession andPopular Demand to AF Holdings. In order to disguise their control over AF Holdings,defendants used the name of an acquaintance of STEELE--whose initials are A.C.--onthe copyright transfer agreement to purportedly sign on behalf of AF Holdings.Furthermore, defendants represented and caused to be represented to multiple courts thatAF Holdings was owned by a trust named "Salt Marsh" whose manager and solebeneficiary was M.L., a paralegal employed by STEELE and Hansmeier. In fact, and asdefendants knew, M.L. was nothing more than a figurehead who agreed to pose as theowner of AF Holdings in order to help STEELE and Hansmeier obscure their ownership and control over the company.
For long time Prenda watchers, you may recognize those initials. A.C. being Alan Cooper, a former caretaker for a cabin John Steele owned, whose name Steele forged on the various documents. Cooper, having no idea what was going on, later sued over the forged documents. M.L., of course is Mark Lutz, the "paralegal" who Steele and Hansmeier falsely tried to present as the real mastermind behind everything.This week, in court, Steele told a very different story.
He said he went back to building and rehabbing homes and began studying stoicism. He said for the past couple of years he has been working for one of his sisters in Phoenix.I'm trying to live a life of virtue, Steele said. All I can control is obviously the thoughts and actions now and in the future. I think it's important that I stand here today and look at you and apologize.
The Assistant US Attorney in the case heaped praise upon Steele for his cooperation, and contrasted Steele to Hansmeier in how they dealt with the charges -- including noting how much Steele's assistance helped in getting Hansmeier to plead guilty as well (though Hansmeier's was "conditional" based on some of his legal attempts to dump the case).Judge Ericksen still noted how abusive and serious the trolling operation was, but also noted that it appeared that Steele recognized how serious this whole thing was:
You abused the court system, as you say, for your personal ends, she said, adding that the courts are not a tool in the box for anybody's hustle.Even so, Ericksen agreed with prosecutors that given Steele's cooperation and efforts to turn his life around, five years in prison was eminently fair. ....I condemn the actions that you took in committing this crime. I congratulate you, however, on the actions you took in responding to the charges, Ericksen said.
The Judge had already order Hansmeier to pay back $1.5 million, and now put that on Steele too, making the two of them "jointly and severally liable" -- effectively meaning that the two of them together need to figure out how to come up with that cash to pay back.Given how vocal and how adamant (and, frankly, how sleazy and confident he was that he could talk his way out of any mess) Steele was over the years, consider me not totally convinced that he's really had a change of heart. It would be great if that were true, but it's going to take more than a single performance in court to convince most of us. Either way, five years in prison is still a significant prison sentence. And, now, it appears we can finally close the books on Prenda.
A school bookkeeper in Indonesia who recorded her boss’s lewd phone call as proof she was being harassed must serve at least six months in prison for distributing obscene material, the country’s Supreme Court has ruled.[...]Her boss, who goes by the single name Muslim, as is common in Indonesia, was the principal at Senior High School Seven in Mataram, Lombok’s largest city. Ms. Nuril recorded him using explicit language and hounding her to have an affair. He was never punished for harassing her and instead has been promoted repeatedly.
To be fair, we have to consider the extremely unfair political/human rights atmosphere in Indonesia, where women are expected to put up with sexual harassment and sexual assault if they expect to hold onto their jobs. And this definitely is a case of prosecutorial discretion -- a case in which prosecutors decided to press charges against the person who recorded evidence of workplace harassment, rather than the government employee who harassed her.This recording was shared with others, who then shared it with other people. Once enough people had heard it, the asshole known only by the name "Muslim" decided to file a complaint. This prosecution for criminal defamation -- that is, Muslim claimed he was defamed by a recording of him saying and doing harassing things -- has led to a six month jail sentence and a $35,000 fine. If the fine isn't paid, it's two more months in jail for the harassment victim.But let's not get carried away with feeling better about living in an open society like ours in the US of A, land of the free and begrudging proponent of civil rights. We hear a lot of talk here about "prosecutorial discretion," especially when bad laws are being written, passed, or enforced. Our prosecutors tend to believe they're tough but fair and possessors of hearts of gold, but we looooove to punish victims just as much as more "backwards" societies.On multiple occasions, prosecutors have levied child porn production charges against teens who have sent naked photos of themselves to other teens. If that charge can't be made to stick, prosecutors labor long and hard to find some way to stick stupid teens with lifetime sex offender labels simply for doing stupid teen things like sexting.Our prosecutors also punish victims of school violence and harassment. In at least one case, a bullied student who recorded his bullies was hit with criminal charges for trying to document these attacks by other students. School administrators have also called the cops on students who surreptitiously record conversations with school officials, claiming these violate state wiretap ordinances.The fine people in law enforcement have, for years, abused state wiretapping laws to punish bystanders for recording abusive police behavior. And there are dozens of cases of negligent homicide generated every year that punish crime victims for being the victims of crime. Our prosecutors will even charge a mother for "killing" an infant, when it was actually an off-duty cop doing double the speed limit blowing through a red light and demolishing the minivan containing the now-dead infant.Are we really better than other countries that treat perpetrators of sexual oppression as "victims" of crimes? Maybe. But not by much. We may have a better system of recourse, but the qualified immunity doctrine has allowed many perpetrators of crimes and rights violations to walk away untouched from allegations of abuse and misconduct.No, this is an institutional problem all over the world. The phrase "prosecutorial discretion" can routinely be taken to mean "the stupidest, most-abusive prosecutions" will result from any law that can be twisted to serve government employees who choose to behave badly.
The Fifth Circuit Court of Appeals has decided it's OK if a government agency searches a phone that should never have been seized in the first place… so long as it's not the same government agency that illegally seized it. The illegality of the original seizure -- which should have provoked some discussions of poisonous trees and their harmful fruit -- is pretty much discarded in favor of the good faith exception.The backstory is this: Charles Fulton Jr. was targeted by the Galveston (TX) Police Department -- working in tandem with the FBI -- for sex trafficking and prostitution of teens. He was ultimately found guilty on four sex trafficking charges, prompting this appeal of the district court's refusal to toss out the evidence pulled from his seized phone.Here's how the seizure and very eventual search went down, taken from the court's decision [PDF]. (Some emphasis added for reasons that will become apparent momentarily.)
In February 2015, Galveston police obtained a search warrant on the Avenue L house where the prostitution was based. The warrant, though, was due to a separate investigation into Fulton’s narcotics activities. Fulton’s cellphone was seized. Nine days later, police obtained a second warrant to examine its contents but were unable to bypass the phone’s security features. Around this same time, the FBI agent assisting with the Fulton sex-trafficking investigation learned that the Galveston police had the phone. The agent acquired it to determine if the FBI could access the phone’s data. Three weeks later, that agent obtained a federal warrant to search the phone. Still, it took a year before the data on the phone was accessed. The FBI discovered evidence that helped piece together Fulton’s involvement with the minor victims.
Recovered from the phone were text messages and photographs linking Fulton to the five minor victims he was trafficking. Fulton challenged the original seizure of the phone by the Galveston PD, hoping that a finding in his favor would eliminate the evidence pulled from the phone by the FBI.The appeals court agrees with Fulton that the phone's seizure was illegal. The warrant makes no mention of seizing phones or other electronics. And yet, that's exactly what was seized. The government tried to claim Fulton's phone was pretty much the equivalent of something else actually mentioned in the warrant.
This narcotics warrant did not mention cellphones. The alleged equivalent was a reference to “ledgers,” which is a “book . . . ordinarily employed for recording . . . transactions.” Ledger, OXFORD ENGLISH DICTIONARY (2d ed. 1989). The government argues that is enough, because this court has held that a cellphone that is “used as a mode of both spoken and written communication and containing text messages and call logs, served as the equivalent of records and documentation of sales or other drug activity.”
The government quoted precedent allowing the word "ledger" to stand in for "computers, disks, monitors" and other hardware that might contain the equivalent of a ledger. The court says all that would be fine if the government made any mention of ledger equivalents in its warrant. But it didn't.
We do not see the same factors involved in the present case. There was nothing in the Galveston warrant suggesting that anything similar to computers or even electronics was to be seized. Moreover, the officer in this case was a veteran of the Galveston Police Department’s narcotics unit, and he indicated at the suppression hearing that he knew cellphones are used in the drug trade. Though a ledger can serve one of the myriad purposes of a cellphone, we do not extend the concept of “functional equivalency” to items so different, particularly one as specific, distinguishable, and anticipatable as a cellphone.
The government says the good faith exception should apply to the FBI's search of the illegally-seized phone. This argument wasn't even addressed by the lower court, which found other grounds to grant the government's use of this evidence.The appeals court does take a swing at this argument, though, but not to the benefit of Fulton and others similarly-situated in the circuit. Good faith it is.
We conclude that viewed objectively, an FBI agent who obtained a search warrant in these circumstances would not have had reason to believe the seizure and continued possession of the cellphone by the Galveston police were unlawful.
The (federal) government gets this win even though the (local) government has just been handed a loss. Despite the fact the two agencies worked "in tandem" on this investigation, the court still decides the reasonably ignorant FBI agent had no way of knowing the phone handed to them by their investigation partner had been seized illegally.And I suppose that's possibly true. The FBI assists in many investigations instigated by local agencies once there's a possibility that federal charges may be the end result. But a decision like this just encourages everyone in a joint investigation to be as blissfully ignorant as possible to obtain the best possible chance at securing a good faith ruling. In this case, an agent was working directly with the Texas agency and found out the Galveston PD had seized a phone, but didn't take a look at the PD's paper trail before crafting an affidavit of their own. That's the exact opposite of "good faith." That's bad faith -- the least amount of knowledge and effort combining to allow for law enforcement rule-bending and access to pre-made judicial excuses molded from years of slack-cutting precedent.
We of course talk a great deal about video game piracy here and nearly all of the commentary from the gaming industry centers on how piracy is destroying an industry that only seems to continue growing. Were you to take only a brief look at the history of our posts on the subject, you would come away with a clear picture that game developers see piracy as the greatest of all evils.It turns out that for many developers there is a greater evil, however. An evil so great, in fact, that game developers are actually pushing the public to piracy as a remedy.
G2A, the grey market purveyor of game keys, has once again drawn the ire of game developers less than keen for their games to feature on G2A's digital shelves. It's previously clashed with TinyBuild and Gearbox, and a recent ad push has seen it condemned by more developers, with some even saying they'd rather players torrent than buy from G2A.Publisher Mike Rose noted that a search for his games placed G2A ads for them above the publisher's own link. "We make zero money on our games if people buy them through ads," he said. He recommended that people considering buying a game through G2A just pirate it instead.
This recommendation was followed up by Rose and other game developers on Twitter, suggesting that anyone thinking about buying a resold game key via G2A just pirate their games instead. This isn't he first time we've seen this sort of thing specifically about G2A, which is one of the more popular Steam key resellers out there. A couple of years ago, another indie game studio went so far as to put its game up on The Pirate Bay itself just to keep money from reaching the hands of G2A.The big problem here is that game developers regularly give away free or cheap Steam keys to influencers and others in the hopes of promoting the game on the internet. Some of those influencers then turn around and resell those keys on the G2A market. For its part, G2A insists that it will take down fraudulent sellers and even issue refunds to devs that can prove the keys sold were obtained by nefarious means, but that's generally a lot of window dressing, given that G2A also buys Google ads to place its own links at the top of search results for these same indie games. Meanwhile, these resold keys generate no revenue for the developer, but do increase their costs in customer service, server requirements for online games, etc.Perhaps the most interesting part of this is that these indie developers, for whom you would think piracy would represent an outsized threat compared with the AAA publishers, see piracy as a perfectly acceptable remedy.
If you can't afford or don't want to buy our games full-price, please pirate them rather than buying them from a key reseller. These sites cost us so much potential dev time in customer service, investigating fake key requests, figuring out credit card chargebacks, and more. https://t.co/25NWxrj8f8— Rami Ismail (@tha_rami) June 30, 2019
Now, I'm quite sure that none of these developers would come right out and say that they like piracy generally. Still, it's interesting to see the nearly universally demonized practice of copyright infringement turned to as a pressure release against a far greater evil. Given that some of these indies proactively combat key resellers by putting their own games up to be pirated, might there be other ways they could use "piracy" to their benefit as well?
While the shoddy Internet of Things sector gets ample heat for being a security and privacy dumpster fire, the traditional network gear sector has frequently been just as bad. A few years ago, for example, hardware vendor Asus was dinged by the FTC for offering paper-mache grade security on the company's residential network routers. The devices were frequently being shipped with easily guessable default usernames and passwords, and contained numerous, often obvious, security vulnerabilities.In 2017, the FTC also filed suit against D-Link, alleging many of the same things. According to the FTC, the company's routers and video cameras, which the company claimed were "easy to secure" and delivered "advanced network security," were about as secure as a kitten-guarded pillow fort. Just like the Asus complaint, the FTC stated that D-Link hardware was routinely shipped with easily-guessable default usernames and passwords, making it fairly trivial to compromise the devices and incorporate them into DDoS botnets (or worse).Like any good company, D-Link at the time professed its innocence, insisting there was nothing wrong with its products and that the FTC claims were "vague and unsubstantiated." Fast forward to this week, when the company struck a settlement with the FTC, and, according to an FTC press release, has agreed to fix security flaws it previously had claimed didn't exist:
We sued D-Link over the security of its routers and IP cameras, and these security flaws risked exposing users' most sensitive personal information to prying eyes, said Andrew Smith, Director of the FTC's Bureau of Consumer Protection. Manufacturers and sellers of connected devices should be aware that the FTC will hold them to account for failures that expose user data to risk of compromise.
It has taken a while, but router manufacturers have started to finally get the message that their routers' installation process should prompt users to pick a unique username and password before finalizing device setup. As part of D-Link's agreement, it not only has to implement new and comprehensive security testing protocols, it's required every two years to obtain independent third-party assessments of its software security programs.Granted, whether we're talking about routers or the latest IoT doodad, there are far too many security vulnerabilities out there for the FTC to police them all right now. Which is why efforts by Consumer Reports and others to begin standardizing the inclusion of security and privacy weaknesses in product reviews are going to be so important in educating consumers.
The group behind the YourAdChoices program wants to implement the political version of the display icon served on consumer digital ads before the first presidential primary is held in 2020. On Tuesday, the Digital Advertising Alliance (DAA)announced its new transparency guidelines for political advertisers at the state and federal level will become effective Nov. 1, […]The post Digital Ad Industry Unveils New Transparency Guidelines appeared first on Adotas.
It's been more than six months since a new law in California opened the books on police misconduct and use of force records. And there are still agencies stiff-arming public records requests. Law enforcement agencies aren't known for their transparency and accountability, which is why laws like California's are needed to force these obligations on them. But while violations of state law might get a resident arrested, they seem to be a bit powerless when it comes to making law enforcement behave in a legal fashion.The Desert Sun reports it still hasn't heard back from a number of agencies it's sent requests to. In some cases, it appears an effort is being made but the responding agencies are just understaffed.
Los Angeles County Sheriff Alex Villanueva acknowledged earlier this year that public records requests were "stacking up." He has said he's asked the county Board of Supervisors for funding to hire more people to handle requests.
This excuse would be a hell of a lot more legitimate if the Sheriff's Office hadn't had months of advance notice. It had a chance to staff up prior to the law's enactment date, but it chose to wait until several months after that to start asking for help.Thus ends the roundup of quasi-legitimate excuses for dodging accountability obligations. And even this one is still mainly horseshit. The Desert Sun reports the "we're doing what we can!" Sheriff has refused to search for records in response to requests, demanding requesters identify the specific cases they're seeking -- something that, in most cases, they can't possibly know until after they've gained access to records.What follows from there is a list of non-compliant agencies:
Both the Orange County Sheriff's Department and the Long Beach Police Department have yet to release any records to KPCC/LAist, the Los Angeles Times, the Orange County Register or KQED.The Los Angeles County Probation Department, which supervises youths held in detention, has declined to release records, claiming disclosure of records about cases involving minors is prohibited by law. Records from the department, which also supervises adults, could be redacted to remove names of protected individuals.
This is no longer a question of law. Courts have repeatedly held the new law is retroactive, making records generated prior to the beginning of this year responsive to requests. The state's Attorney General, Xavier Becerra, has apparently decided to see how much of this year he can spend with his head up his ass. He's appealing a decision by a judge granting access to records involving the state's DOJ… which still has yet to release the records it was ordered to release.Other agencies have been a bit more compliant. The San Francisco PD has released a handful of records on four shootings by officers and the LAPD is continuing to release files on a rolling basis. In both cases, these agencies have upped their staffing to handle the influx of requests -- all without complaining publicly about their obligations.Other agencies have chosen to go the route of antagonistic compliance -- following the letter of the law while making it very clear they hate everything about the law and every requester taking advantage of it.
The Los Angeles Sheriff's Department charged KPCC/LAist $1,655 to redact audio from shooting investigations [...]. The department has yet to provide the tapes.The city of Bakersfield estimated that reviewing the audio and body camera footage related to a single shooting would cost about $6,621.60. Footage related to cases from the past five years, when Bakersfield Police shot 28 people, would cost an estimated $185,000.West Sacramento estimated it would cost $25 per minute to redact its footage, meaning the material from five shootings would cost $25,000 in total.
The best way to close a marketplace you've been forced to enter is to price everyone out of it. This is an old school public records tactic, one designed to dissuade the general public from holding their public institutions accountable for their misbehavior.And this doesn't even include the list of agencies who saw the legislative writing on the wall last year and started destroying old records before the public could start asking for them.All of this adds up to a very ugly display of arrogance and disdain for the general public by the state's law enforcement agencies. There are a few standout agencies fully complying with the letter and the spirit of the law, but for the most part, law enforcement agencies are operating in go-fuck-yourself mode when it comes to public records requests. The end result will be an even greater divide between the police and the policed.
Our past posts on Gibson Guitar, the famed guitar-maker, have revealed roughly a decade of strict IP enforcement and other busuiness challenges. Between waffling on its support for SOPA and its own failures to properly innovate in a direction that met its customers' demand, never mind its odd legal trouble over "illegal" wood used in its guitars and the bankruptcy it underwent a few years back, we're not left with a picture of a well-oiled business. Despite that, emerging from bankruptcy, Gibson has continued its IP maximilist ways, most notably in the past few weeks with a lawsuit against the owner of Dean and Luna Guitars for trademark infringement and counterfeiting over several guitar body designs that the defendants claim aren't protectable.There are two important aspects of that specific dispute to note here. First, the public backlash against Gibson over the lawsuit was firm and swift. Second, this specific dispute originated with cease and desist notices sent out by Gibson's legal team back in 2017. That is particularly notable as it was only in November of 2018 that Gibson brought on a new CEO, James Curleigh. In the wake of the backlash over the past few weeks, Curleigh has gone out of his way to promise the public that Gibson is going to quickly move on from its IP maximilist ways.
Regarding criticism Gibson has faced for its legal actions, the company said in a statement that the past few weeks “have provided a ‘real time’ opportunity to start making the pivot from less legal leverage to more industry collaboration, with appropriate levels of awareness.” Furthermore, the company clarified that the recent attention on the lawsuits in process stem from several years of legal action initiated prior to the new leadership, headed by CEO and President James “JC” Curleigh, arriving in November of 2018. With regard to the inherited and ongoing legal dynamic with Dean Guitars, Gibson says its team has made attempts to directly communicate to “avoid a prolonged legal battle.” Said Curleigh, “I am proud of the progress we have made with our attention to quality, with the launch of the new collections, and with our renewed engagement to our Gibson authorized dealer base. At the same time, we acknowledge there are still legacy challenges to solve going forward, especially around brand protection and market solutions.”
On the one hand, it feels somewhat lame to let a company off the hook for filing a lawsuit two weeks ago just because the cease and desists were sent out two years prior to the current CEO's tenure. You're the CEO, dude. Tell the legal team to not file the suit if that's what you think it should do.All that being said, the words coming out of Curleigh's mouth are the right ones, as are those coming from the Gibson PR team. It's gratifying to watch a company bow to public backlash over an overtly aggressive IP enforcement stance. And hearing the company use language that used to be reserved for the craft beer industry, back before that industry was similarly ravaged by IP enforcement, is encouraging.
He continued, “It is time to make the modern-day shift from confrontation towards collaboration, whilst still protecting our brands, and we are committed to making this happen starting now."
What remains is seeing just how Curleigh's Gibson Guitar wants to balance that equation. If he can shift the culture of the company towards one that is human and awesome, all while giving fans of Gibson guitars what they want, it could be a major win for a company that recently looked quite lost.
One of the major players in cop tech is bowing out of the facial recognition race. As Hayley Tsukayama reports for the EFF, Axon (formerly Taser) has decided there are far too many ethical and practical concerns to move forward with adding facial recognition tech to its popular bodycams.Axon actually has an ethics board -- something that certainly would have been welcome back in its Taser sales days. Perhaps having a few ethical discussions would have prevented dead Americans from being awarded postmortem declarations of "excited delirium," thus keeping law enforcement officers from being held accountable for killing people when they were only supposed to be arresting them.The Axon ethics board has arrived at the following conclusion concerning facial recognition software:
Current face matching technology raises serious ethical concerns. In addition, there are technological limitations to using this technology on body cameras. Consistent with the board's recommendation, Axon will not be commercializing face matching products on our body cameras…
There's a caveat:
… at this time.
Facial recognition is tabled. But it's not completely off the table. Axon can revisit this at any time and decide the ethical concerns are outweighed by public/officer safety and insert this software into the body cameras it sells as loss leaders to law enforcement.Color me skeptical, but as great as this sounds (at this time...), Axon may just be waiting for the legislative dust to settle a bit before it moves forward with this bodycam enhancement. San Francisco recently banned the use of facial recognition tech by law enforcement and recent government hearings involving other players in the crowded field haven't exactly created a receptive atmosphere for unproven surveillance tech more known for screwing up than catching criminals.Whichever way the wind shifts, Axon is ready. It already deploys a form of facial recognition to redact bodycam footage for public release.
To date, Axon's work on face recognition has revolved around detecting, tracking and re-identifying faces in videos for the purpose of blurring out or redacting those faces prior to public release, in service of protecting people's privacy rights. “Re-identification” refers to the automated process of finding all the re-occurrences of a person's face in a single video. These algorithms do not attempt to match the identity of the individual to a database, only to identify video frames that are likely to include faces so that they can be redacted.
While everything is sorted out, Axon will continue to solidify its lead in law enforcement adoption. Axon's business model is smart, even if it's not particularly new. Cash-strapped agencies are given cameras for next to nothing, but are tied into lucrative data/access contracts for years, allowing Axon to recoup the hardware costs with licensing and storage fees.There's nothing wrong with the way Axon handles its camera sales. It's just something cities need to be aware of. Failure to live up to their end of the contract could see a city's credit rating take a hit if it decides it would rather use another vendor.This declaration is Axon setting the standard for the industry. As the industry leader, it can influence the decisions of other companies, taking them out of the game before they can even get on the playing field. Law enforcement agencies insisting on facial recognition tech will be seen as outliers and the companies willing to sell to them will appear to be operating unethically. It's a smart move by Axon. I guess we should all enjoy the unintended side effects of Axon's anti-facial recognition declaration while we can.
44% of shoppers indicate that Amazon's recent issues with fake product reviews will impact their participation in Prime Day shopping. Bazaarvoice, Inc., the provider of user-generated content (UGC) solutions, today announced the results of its newest study, exploring the shopping habits of 1,000 U.S. consumers who are planning to shop Black Friday in July […]The post Better deals, Amazon fake reviews usher consumers to Prime Day competitors appeared first on Adotas.
We've talked a great deal of late about Epic Games' kicking off a PC gaming platform war with Steam through its own Epic Store. What the whole thing comes down to is that the Epic Store offers game publishers a revenue split that takes away half as much revenue from the publisher compared with Steam, coupled with a program for gobbling up 6 to 12 month exclusivity deals on many games that keep them off of Steam during that time period entirely. While Valve responded saying this would hurt gamers, and much of the public appeared to agree, Epic's Tim Sweeney has twice now spokenpublicly about his plans, while also stating that what Epic is really after is a better gaming marketplace and to get Steam to increase its own revenue splits, promising to end the exclusivity program if its rival does so.Many of our readers have noticed that I'm somewhat open to Epic's strategy here, although I'm not certainly buying into it fully. Many of those same readers have rightfully pointed out that, whatever Epic's longterm goals, the platform wars still aren't good for the gaming public in the immediate. They're absolutely right about that and one perfect example of how platform wars and exclusivity deals can hurt fans of PC games has shown up in the form of Shenmue 3.Shenmue 3 was launched via a Kickstarter campaign way back in 2015. Like any Kickstarter campaign, there were different tiers by which one could support the product. Many of those tiers included day 1 Steam keys as a reward for supporting the game's creation. Then this happened:
Last month, the makers of Shenmue III announced that the game will be a timed exclusive to the Epic Store on PC, a move that angered quite a few people who had helped crowdfund the game. After all, when Shenmue III first launched on Kickstarter in June 2015, the developers had offered Steam keys as a reward option. When the game comes out in November of this year, however, Steam keys won’t actually be available. It’ll be on Steam in November 2020.Those who backed Shenmue III in 2015 and wanted Steam keys for their efforts have a few options. One is to take an Epic Store key. Another is to switch platforms. A third is to get a Steam key one year after launch, once the exclusivity window is up. And a fourth, the developers said today, is to get a refund.
On one hand, yes, the developer is offering a refund to backers for its inability to actually deliver on the day 1 Steam keys it promised. That same developer has also announced, however, that tiers that backed the creation of certain gameplay elements within the game cannot be given a full refund since the gamemakers did in fact deliver on those gameplay elements. That obviously sucks for the Steam gamer: great, you made the thing in the game I wanted you to make, but I cannot play it where I play my games because you're not giving me the Steam key you promised me at the time you promised it.And, on a higher level, it would be entirely understandable for a backer of this project that only wants to use Steam to say something along the lines of, "Screw you entirely you damned liars." After all, the game developer entered into an exclusivity deal with Epic having already made a Kickstarter deal with the actual backers of the game. That's pretty shitty.And, of course, those who want a refund don't even have a way to get one... yet.
More details on how to get a refund “will be announced in a following update,” the developers said, although they also warned backers that if they picked one of the tiers including in-game content that’s already been implemented into the game, a full refund won’t be available.
So whichever side you take in Epic's declaration of war on Steam, it cannot be denied that there won't be collateral damage.
Should Section 230 be repealed? Heck no. We don't want politicians, as Missouri Sen. Josh Hawley suggests, forcing private companies to host content they find objectionablea slippery slope. Facebook and others will likely end up neutral on their own, invoking the Michael Jordan rule: Republicans buy sneakers too. Leave Section 230 alone.
Kessler highlights how most of the "proposed" ways of dealing with the power of big tech won't actually solve any of the problems they're targeting. Instead, he suggests much greater transparency in how these companies operate -- which I agree is a good start, but not nearly far enough. He also suggests a slightly odd "ratings system" using user voting to determine if content is trustworthy. That's a creative idea, but would be gamed so fast that it would almost certainly be useless about 30 seconds after launching.Either way, it's good to see that the WSJ isn't so on board with the "kill Section 230" nonsense that it wouldn't publish Kessler's op-ed...
It will surprise nobody to hear that music mega-business Universal Music Group has graced our pages acting aggressive and, at times, downright face-palm-inducing on matters of intellectual property. The whole UMG mantra from the top down appears to be something like: major label music is insanely awesome and the things that make the internet so great are generally terrible. And so, as you might expect, UMG finds itself on Techdirt quite often.Conversely, O-Town, the boy-band that was popular for a minute thanks to the 2000s era MTV show "Making The Band", has apparently never graced our pages. Again, this is as one would expect. But now these two sides find themselves in the same post, all because the latter is attempting a comeback and UMG is being, well, UMG.It all started when, as part of the comeback, O-Town's remaining members applied for a trademark on their own band's name. UMG opposed the application. Why? Well, because UMG owns Motown Records... and just frankly can't help itself, that's why.
The label’s parent company, Universal Music Group, is trying to block the band from registering “O-Town” as a trademark, arguing it is too similar to the name “Motown.”According to documents obtained by Variety, O-Town members Jacob Underwood, Erik-Michael Estrada, Trevor Penick and Dan Miller applied for ownership of the O-Town trademark in 2017. However, Universal Music Group, which owns Motown, filed a notice of opposition in April, stating that the similarity between Motown and O-Town could “create confusion, mistake, or deception.”
This is nonsense on many levels. O-Town is famous enough that trademarking their own band's name is only going to associate the term with the band itself. They're not wildly famous, of course, but they're famous enough to not be confused with the entire record label putting out Erykah Badu records. On top of that, there already was a trademark held for the band long ago; it just wasn't held by the band members themselves.
O-Town was formed by late music mogul, Lou Pearlman, as part of MTV’s “Making the Band” reality series in 2000, and he acknowledged in interviews over the years that Motown was an inspiration for the name, and the complaint notes the similarities between the group’s and the label’s logos. According to Underwood, who also manages the band, Pearlman trademarked O-Town before the series launched, then once the group members were chosen, he suggested it as a band name.“We were like, ‘Yeah, that feels closer to our hearts than anything. That makes sense,’ not realizing that he owned the name already,” Underwood tells Variety. “It wasn’t a big deal until we started touring and then it was like, ‘By owning the name, he owns all the rights to what you guys do. You’re in handcuffs.”
Despite the nod towards Motown, no trademark dispute nor C&Ds were sent all those years ago. Motown Records has been around since the 1950s. Why is it the band's name being trademarked was no big deal in in 2000, but now it's suddenly a problem?Between the lack of enforcement over the original trademark held for the band's name and the simple fact that concern over public confusion is fairly specious at best, I would hope the USPTO sees fit to deny the opposition and grant O-Town its trademark.
If you hadn't noticed by now, Trump's efforts to use tariffs to somehow magically improve the country's standing in the world aren't based on much in the way of sound logic or economic theory. And companies who've been forced to reconfigure and relocate their entire supply chains (to countries like Taiwan) to avoid massive penalties are likely to just pass those costs on to American consumers, something said consumers haven't really fully grokked yet. Countless CEOs think the entire gambit is immeasurably stupid, but have been hesitant to be too pointed in their criticism for fear of upsetting administration regulators.As the actual bill comes due however, consumers are likely to wake up from their slumber. Maybe.Case in point: Microsoft, Sony, and Nintendo this week fired off a letter to the Office of the United States Trade Representative, warning the Trump administration's plan to bump Chinese tariffs from 10 to 25 percent will have a profoundly-negative impact on the game industry. With 96 percent of game consoles made in China last year, the act of reconfiguring their entire supply chains will have a massive impact on the sector's bottom line and the numerous connecting companies that tendril out from the big three gaming giants.The letter itself is abundantly clear that it's not these companies that are going to eat these costs, but the American consumer. In fact, the full letter (pdf) leans heavily on data suggesting that the 25 percent hike on game consoles will result in US consumers paying $840 million more on the game hardware than they might have anyway:
"A price increase of 25% will likely put a new video game console out of reach for many American families who we expect to be in the market for a console this holiday season. For those purchases that do go forward despite tariffs, consumers would pay $840 million more than they otherwise would have, according to a recent study prepared for the Consumer Technology Association by the independent economic group, Trade Partnership. That study also noted that [e]ven after accounting for new tariff revenue, the result is a net $350 million loss for the U.S. economy for each year the tariffs remain in effect, with the burden carried by U.S. consumers."
Hey, neat.Presumably, Trump believes that these threats will ingeniously force China's hands in trade negotiations, though it's not really clear that's actually happening. What's happening instead is a slow accumulation of collateral damage, as countless US companies (like Apple) face new penalties that will slowly chip away at the US economy before it forces China's hand. It will be curious to see what happens when American consumers realize they're the ones footing the bill as we wait for the final outcome of a unilateral US trade gambit that was never likely to actually work.
Shopify has previously highlighted the need for dynamic ads and has offered advice on how to automate it to help boost your brand. However, in 2019, it's not just enough that you know when to post on Facebook to get the most engagement: it's important that you find a smarter way to advertise. Enter, programmatic […]The post How to Maximize Programmatic Advertising in 2019 appeared first on Adotas.