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August 2019
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California Supreme Court Says Cops Must Turn Over Info On Misconduct To Prosecutors

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Another layer of opacity shielding bad cops from accountability has been lifted in California. Accountability and transparency hasn't exactly been welcomed by the state's law enforcement agencies, but recent developments have forced it upon these unwelcoming recipients.As of the first of this year, police misconduct and use-of-force records are now obtainable via public records requests. For years, these have been locked away by statute, freeing California cops from the unimaginable horror of public accountability. This new law has raised several legal challenges from cops and their representatives, but so far, none of those have found courts willing to grant them their injunction requests.Now, some of these same cops are going to find themselves even more exposed. The state's top court has just ruled that prosecutors must be informed about officers' past misconduct. The ruling may only discuss a single department, but it will affect every law enforcement agency in the state, as Maura Dolan reports for the L.A. Times.

The California Supreme Court decided unanimously Monday that the Los Angeles County Sheriff’s Department and other law enforcement agencies may alert prosecutors that a deputy who is slated to testify in a criminal case has a history of misconduct.The decision overturned a Court of Appeal ruling that barred the sheriff from giving prosecutors the names of deputies who had committed misconduct, including lying, taking bribes, tampering with evidence, using unreasonable force or engaging in domestic violence.
The misconduct law enforcement agencies were previously allowed to keep secret is directly tied to exculpatory evidence owed to defendants. Anything that might diminish the credibility of a witness is supposed to be fair game. Unless, of course, it's a long history of abuse and misconduct by the officer on the stand. That's when cops start claiming these are confidential employment records rather than litanies of perpetrated abuse.These lists of questionable officers are called "Brady lists," after the court decision establishing defendants' right to obtain exculpatory evidence from the government. In many states, these lists are still secret. That is no longer the case in California.The Los Angeles Sheriff's Department has about 300 deputies on its Brady list. It sought an injunction blocking the disclosure of these names, claiming they were private "personnel records" that shouldn't make their way into open court. The lower court agreed. The state Supreme Court does not [PDF].First, the new public records law removes some misconduct and use-of-force records from the state's personnel records exception. It doesn't remove everything but it does make it clear that any information the public can obtain with records requests cannot be declared "confidential" simply because it's being used in court.Second, the ruling doesn't make Brady lists available to the general public. It only makes them available to prosecutors. Judges will view these submissions in private and decide what information is owed to defendants. This is not a blanket lifting of confidentiality, but rather a more limited approach guided by the court. But it does mean more information will make its way to defendants and, obviously, into open court.The deputies' union makes several arguments as to why these officers should never have their misdeeds discussed in court, but the state's top court isn't buying it. Law enforcement agencies might be separate from prosecutors' offices, but they share some of the same obligations.
The Fourteenth Amendment underlying Brady imposes obligations on states and their agents — not just, derivatively, on prosecutors. Law enforcement personnel are required to share Brady material with the prosecution. (See, e.g., Carrillo v County of Los Angeles (9th Cir. 2015) 798 F.3d 1210, 1219-1223 & fn. 12.) The harder it is for prosecutors to access that material, the greater the need for deputies to volunteer it.The Association’s contrary view that “Brady relates only to the prosecutor” and that “Brady . . . does not impose obligations on law enforcement” is distressing and wrong. The prosecution may bear ultimate responsibility for ensuring that necessary disclosures are made to the defense (see In re Brown, supra, 17 Cal.4th at p. 881), but that does not mean law enforcement personnel have no role to play.
Unfortunately, the ruling stops short of creating an obligation to share this information with the defense, but it does make it clear law enforcement agencies can longer withhold it from prosecutors. It does at least establish a review process to handle defense requests for Brady list info so at least some of what's been turned over can be used to challenge the credibility of the prosecution's witnesses. It's not a massive step forward, but it's far better than the opacity California law enforcement agencies have grown accustomed to. Considering the number of deputies in the state with, shall we say, job performance issues, the flow of Brady info should be steady... and perpetual.

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posted at: 12:00am on 31-Aug-2019
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Tom Brady Fails To Trademark 'Tom Terrific' As USPTO Rightly Assesses He's Not The Most Terrific Tom

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Earler this summer, we discussed Tom Brady, famed Patriots quarterback and winner of many games, deciding to apply for a trademark on a nickname some fans had given him: Tom Terrific. In news you'll never believe, it appeared that Brady didn't really have any idea how trademark law works. As evidence for that, Brady claimed to want the trademark because he hates the nickname and wanted to stop others from using it. That's not how trademark law works. Instead, to have a valid trademark, Brady would have to use the term himself in commerce, meaning that more people would hear his unwanted nickname in doing so.But that wasn't the only problem. See, Tom Terrific is a well-known nickname... of Tom Seaver, the famed NY Mets pitcher. The Hall of Fame pitcher popularized the nickname in sports. Hell, I'm in my 30s and I know Tom Terrific = Tom Seaver.And so do the folks at the USPTO, apparently, as they rejected Brady's application on the grounds that he would mislead others into thinking he was somehow associated with Tom Seaver.

The office refused the request made by the six-time Super Bowl champion Thursday because of the phrase's association with another famous athlete: "The applied-for mark consists of or includes matter which may falsely suggest a connection with Tom Seaver," the office said. Seaver, an MLB Hall of Fame pitcher, was given the nickname long before Brady ever stepped on a football field. Seaver, who played professionally from 1967 to 1986, was the star of the "Miracle Mets" 1969 World Series championship team.
Now, trust me, I know exactly what you're thinking: "Wait, the Mets actually won a World Series at some point?" The answer to that is yes! And, in a rare bout of sanity, the Trademark Office recognized that the fame built up around Seaver, especially given his and his team's success, which then translated into the fame of his nickname, meant that Tom Brady's requested trademark was both silly and potentially confusing. Keep in mind that use of the trademark on clothing wouldn't necessarily carry Brady's well-known face along with it.
According to USPTO, the nickname "points uniquely and unmistakably to Tom Seaver," not Brady. It also said the trademark could lead fans to believe that Seaver endorses any product sold with the nickname.
Sorry, Tom. You're just not terrific enough to sneak this one past the USPTO.

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posted at: 12:00am on 31-Aug-2019
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EFF Sues CBP, ICE Over Refusal To Hand Over Its GPS Tracking Device Policies

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Roughly a year ago, the government attempted to argue the border search exception applied to GPS tracking devices it surreptitiously attached to a truck crossing the border from Canada and tracked for the next 48 hours, following it from its arrival point in Michigan to its destination in California.The court disagreed with the government's interpretation of the border search exception. While it may have covered the original warrantless placement of the tracking device, it did not cover the next two days of tracking while the truck traveled far inland.The government lost its evidence and, eventually, its case. Stuck with evidence solely derived from an unconstitutional search, the government dismissed the charges and the two arrested Canadians were free to return to their home country.During this case, the government claimed these apparently illegal searches were within policy. Specifically, affidavits filed by the DOJ stated ICE and CBP both had policies that permitted the warrantless, suspicionless installation of tracking devices on vehicles at border crossings.If these policies exist, no one has seen them. The EFF would like to. It filed FOIA requests with both ICE and CBP, asking the agencies to produce the policies referred to in court. To date, it has received nothing from either agency.According to the EFF's FOIA lawsuit [PDF], both agencies have violated the law with their continued refusal to produce the requested documents. ICE received the EFF's request last November. Four months later, it said it had found three responsive pages, but that all three pages would be withheld, citing Exemption 7(E). This exemption protects "law enforcement sensitive information" that might give bad guys the jump on the feds if they knew the feds might try to sneak tracking devices onto their vehicles at border crossings.It would seem the case above -- the one cited in the EFF's lawsuit -- kind of exposed ICE's GPS device subterfuge. The only thing surprising about the use of GPS devices was the government's assertion that the border search exception applies everywhere in the United States, not just at or near its borders.The EFF's appeal of ICE's decision also pointed out that the Supreme Court's 2012 decision on tracking devices made it pretty clear this super-secret law enforcement technique was actually well-known and understood pretty thoroughly by cops and criminals alike. Upon receipt of this appeal, ICE apparently decided it would no longer discuss its ridiculous exemption deployment.The CBP, on the other hand, has refused to do anything at all. It too received the EFF's FOIA request last November, but apparently can't even be bothered to look for documents, much less pretend discussion of GPS tracking devices would undermine its covert operations.The lawsuit seeks the full disclosure of the documents as well as any legal fees incurred by the government's refusal to comply with FOIA law. Should this finally dislodge the documents, we'll all know just a little more about the apparently minimal standards border agencies apply to their use of tracking devices.

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posted at: 12:00am on 30-Aug-2019
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Uber Takes On Beautician/Barber Over Her BeauBer Mobile App

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There's a perception among some that the forward-looking tech companies throughout the country are more permissive in intellectual property concerns than other industries or marketplaces. And perhaps there is some truth to that. But certainly this is not without exception. For instance, you can bear witness to Uber going after a beautician over her stylist-booking app, called BeauBer.

Carolina Vengoechea, 45, tells The Post that Uber has demanded she give up the name of her beauty salon app, called “BeauBer.” But she has refused, arguing that the name is the combination of her two job titles, beautician and barber — and has nothing to do with the San Francisco-based company.Vengoechea says she has already turned down multiple settlement offers from the $60 billion Uber, which is hell-bent on destroying trademarks that include its name. Unless the company backs down, she said, she will be forced to face them in court next year.
The fact that the portmanteau barely contains the word "uber" if you squint at it really hard is hardly any reason for Uber to have turned this into a trademark dispute. Let's just go down the list of reasons why this is ridiculous. First, these two companies are in wildly different industries. The fact that both have an app doesn't change that. Second, there is little potential for actual public confusion, given that the name in total and branding for BeauBer is quite different. Finally, the idea of Uber going after a sole proprietor in this way is ironic in the worst of ways.Fortunately, Vengochea appears to be the rare small business owner with a backbone when it comes to trademark bullying.
“I've already spent money on BeauBer,” Vengoechea said of her app. “I feel like settling is just giving up. I know I’m not doing anything wrong. Why do I have to settle just because they have more money than me?”
Others seem to agree.
“Here, it appears that Uber has gone outside their normal zone of necessary protection and have opposed a mark which should not reasonably be opposed,” Steven Gursky, a partner at law firm Oshlan, said. “Perhaps being ‘uber’ wealthy allows them to be overly aggressive.”
Which is a shame, really. It would be rather nice if Silicon Valley companies could lead the way in having a different attitude when it comes to intellectual property issues. Apparently, though, money does in fact corrupt all things.

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posted at: 12:00am on 30-Aug-2019
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Canadian Brewery Changes Name Of Brew Due To Peanut Butter Company Bully That Doesn't Ship In Canada

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We've been talking about the trademark crisis facing the craft brewing industry for some time. To recap, an industry explosion coupled with the habit of that industry to come up with creative and referential names for its products has collided with trademark attacks coming both from within and outside of the industry. The industry, which once had a quite permissive and fraternal approach to intellectual property, has since become corporatized. New entrants to the market, therefore, face challenges with how to name their craft beers without facing legal threats.This is where it's worth repeating that trademark law is chiefly designed to keep the public from being confused as to the source of affiliations of a good or service. In other words, the brand name of a product shouldn't fool the public into thinking it came from somewhere it did not. That reality makes it quite frustrating to see Off Track Brewing agree to change the name of one of its signature brews due to threats issued by a peanut butter brand.

When the guys behind Off Track Brewing came up with a stout beer, using real peanut butter as the key ingredient, they needed a name."We were brainstorming one day, and Jon just said, 'You know what, Damn Skippy, it's just jumping out to me, it'd be a really good name,'" said Allan MacKay of Off Track Brewing in Bedford, N.S.
You already know what happened. Damn Skippy jumped in popularity, leading some to comment on the brew on social media. There, whatever legal team the Skippy peanut butter people had contracted with took notice and fired off a cease and desist notice to Off Track. It never got to the litigation level, as Off Track agreed to change the name of the brew. Normally, this is where our post would point out that the beer-buying public is certainly not going to confuse a creatively named peanut butter stout beer as having anything to do with Skippy brands, not to mention that the two products are in wildly different market arenas. All of which ought to have been sufficient to push back on the C&D and even for Off Track to have its day in court, if it wished.But even if you don't agree with my assessment above, exactly how much potential confusion in the buying public could there be when that same Canadian public can't even buy Skippy peanut butter?
Even though Skippy peanut butter was discontinued in Canada two years ago -- months before the brewery opened -- the owners decided to give in after consulting their lawyer."We're gonna switch it up, so it's not a big loss," said MacKay. "The beer stays the same, which is good."
Part of the requirement to hold a valid trademark is that it be in use in the marketplace for commercial purposes. The Skippy people appear to very much be not using it in Canadian commerce. How, therefore, could there be any potential for customer confusion? And why, for the love of all that is peanut-buttery, did Skippy undertake this bullying to begin with?

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posted at: 12:00am on 29-Aug-2019
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California's 'Model' Police Use-Of-Force Law Won't Change Much About Deadly Force Deployment

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In response to controversial shootings of citizens by police officers, California's governor has (far too proudly) signed into law a bill that will do almost nothing to prevent more of these kinds of killings:

The precipitating factor in changing the standard was the March 2018 police shooting of Stephon Clark in Sacramento.Police shot and killed him in the back yard of his grandmother's house, after mistaking his cell phone for a weapon. Police suspected Clark of breaking into cars, and they shot him after he refused orders to show his hands. Instead, police said, he pointed what turned out to be a cell phone at them.
As is almost always the case when police officers kill unarmed people, the officers' decision to kill Stephon Clark was found to be justifiable -- a reasonable response to a situation in which the officers feared for their safety.The new law says these kinds of killings will no longer be justified. Oh, wait. It says nothing of the sort. In fact, it says officers can keep killing people as long as they fear for their safety or the safety of others.
A peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:(A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.(B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.
This law would have done nothing for Stephon Clark. It will do nothing for future Stephon Clarks -- people who aren't carrying weapons but are responding poorly to conflicting commands being shouted by multiple officers who are carrying weapons.This failure to make any substantial change to the everyday business of killing citizens is being hailed by the man who signed the bill as the future of police use of force legislation.
California Gov. Gavin Newsom (D) announced on Monday that California is now a "model for the rest of the nation" when it comes to the use of deadly force by police officers.
Good news, rest of the nation! To keep up with California, you really won't have to do anything.The reason this law is so weak is because it had to be this weak to even get passed. Concessions were made after the bill got hung up in negotiations with law enforcement agencies and their unions. Assemblywoman Shirley Weber's bill only moved forward once it had been watered down enough to be agreeable to the government agencies it would affect.
To get the bill through the Legislature, Weber accepted amendments that eliminated provisions that would have made it easier to prosecute officers.It still gives some power to courts to decide if an officer’s application of force is justifiable, but it’s unclear if more officers will face criminal charges because of the new law.
It's not a total loss, though. It does make at least one drastic change to police force deployment. It forbids the killing of people who pose a threat only to themselves.
A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.
This will keep officers from "helping" suicidal people end up dead faster. Hopefully, it will also slow down the rate at which cops kill mentally ill people. But sufferers of mental issues are frequently perceived as threats by police officers. This clause won't help much because it leaves it up to officers to decide whether or not a person threatening their own life also (somehow) poses a threat to them. With body cams routinely "failing" to operate in situations like these, it's the word of cops against all other witnesses. Not exactly a game changer.Perhaps the best part of the bill is the definition of "imminent harm," which should at least prevent a few officers from making deadly assumptions using facts not in evidence.
A threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.
This is good, but see also things like this:
During the interview, [Officer] Browder stated that he first saw Nehad when Nehad was twenty-five to thirty feet from Browder’s car and that Nehad was “aggressing” the car and “walking at a fast pace . . . right towards [the] car.”
These are actual words used by a cop to justify the near-instantaneous shooting of man armed only with a pen. The officer claimed he thought it was a knife -- a statement he didn't make until his second interview about the shooting. So, that's the standard that's being laid down: if an officer believes harm is "imminent" -- or at least thinks a court might buy it -- the guns will come out and unarmed people will die.Fortunately, the governor has backed up this mostly-worthless law with something that might have an effect.
Newsom said "no," police officers shouldn't be worried about the change from reasonable force to necessary force. "They should only be worried if we don't, commensurate with this legislation, support the training of those officers.""What kind of training?" Jones asked. "What is the difference ... when you're training an officer to use deadly force only when it's necessary as opposed to when it might be reasonable? What's the difference?""Well, we're about to explore that," Newsom said, "because we're going to invest an unprecedented amount of money, tens of millions of dollars, to move through a process of going, step by step, through de-escalation and focusing, now, with much more specificity, on changing the culture of policing.
This is good. But all Californians have at the moment is a law that says nothing really needs to change. If and when this new training is implemented, we may see improvements. Any improvement will depend on the quality of the training and the discretion of prosecutors. And prosecutors aren't really known for their "tough on (cop) crime" mentalities. This law is an improvement over all the laws no one else is actually trying to pass. But it's only very slightly better than doing nothing at all.

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posted at: 12:00am on 29-Aug-2019
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Do Citizens Have A Right To See The Algorithms Used By Publicly-Funded Software?

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In 2009, the Spanish government brought in a law requiring electricity bill subsidies for some five million poor households in the country. The so-called Bono Social de Electricidad, or BOSCO, was not popular with energy companies, which fought against it in the courts. Following a 2016 ruling, the Spanish authorities introduced new, more restrictive regulations for BOSCO, and potential beneficiaries had to re-register by 31 December 2018. In the end, around 1.5 million households were approved, almost a million fewer than the 2.4 million who had benefited from the previous scheme, and a long way from the estimated 4.5 million who fulfilled the criteria to receive the bonus.The process of applying for the subsidy was complicated, so a non-profit organization monitoring public authorities, Civio, worked with the National Commission on Markets and Competition to produce an easy-to-use Web page that allowed people to check their eligibility for BOSCO. Because of discrepancies between what the Civio service predicted, and what the Spanish government actually decided, Civio asked to see the source code for the algorithm that was being used to determine eligibility. The idea was to find out how the official algorithm worked so that the Web site could be tweaked to give the same results. As Civio wrote in a blog post, that didn't go so well:

Unfortunately both the government and the Council of Transparency and Good Governance denied Civio access to the code by arguing that sharing it would incur in a copyright violation. However, according to the Spanish Transparency Law and the regulation of intellectual property, work carried out in public administrations is not subjected to copyright.
Civio was not the only one to have problems finding out why details of the algorithm could not be released. The non-profit research and advocacy organization AlgorithmWatch also asked several times exactly whose copyright would be violated if the source code of the governmental BOSCO software were shared, but without success. The fact that code, apparently public-funded and thus not subject to copyright, is nonetheless being withheld for reasons of copyright, is one unsatisfactory feature of the BOSCO saga. Another is that secret government algorithms are being used to make important decisions about citizens. As Civio says:
"Being ruled through secret source code or algorithms should never be allowed in a democratic country under the rule of law," highlights Javier de la Cueva, Civio's lawyer and trustee, in the lawsuit. "The current interpretation of the law by the [Council of Transparency and Good Governance] will allow public administration to develop algorithms hidden from public scrutiny," he warns. For this reason, we appealed the refusal of the Transparency Council before court.
There is another issue beyond the lack of transparency of governmental algorithms that impact people's lives. Supporters of open access rightly point out that it is only fair for the public to have free access to academic research they have paid for. Similarly, it seems only fair for the public to have free access to the source code of software written and used by the government, since they have paid for that too. Or as a site created by the Free Software Foundation Europe on precisely this issue puts it: "If it is public money, it should be public code as well".Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 28-Aug-2019
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Top MPAA Lawyer, Mastermind Behind Its Plan To Attack The Internet, Arrested On Blackmail And Sexual Assault Charges

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A while back, an MPAA whistleblower sent me a big file of internal MPAA documents. I spent many months going through them and trying to track down any actual story in them, but there really wasn't much there. Most of the documents were quite old and not all that revealing beyond what was already known (or widely assumed) about how the MPAA acted. The only thing that struck me as interesting, was a very old memo, written by lawyer Steven Fabrizio, before he became the MPAA's General Counsel, when he was still at the MPAA's favorite law firm, Jenner & Block. The memo outlined a very long list of potential anti-piracy strategies, and whether or not they were legal. Some of them were... quite surprising in what they were even considering (it included things like taking over a pirate site and using it as a honeypot). Many were what I would personally classify as somewhere between sleazy, dishonest and unethical. I never wrote up any details, because there was no evidence that the MPAA ever actually did any of the proposed programs, and a few people I ran questions by pointed out that, as as corporate lawyer, reviewing crazy ideas by clients and giving a legal opinion on them is standard practice.The Fabrizio connection struck me as interesting on a few levels, though. Beyond being the MPAA's top legal attack dog for nearly a decade, the Sony Pictures email leak showed that Fabrizio was the mastermind behind Hollywood's Project Goliath to use MPAA/Hollywood Studio funds to pay for having state Attorney's General and news media owned by those studios, to attack Google to try to pressure it into some sort of "deal" with the studios. Fabrizio was also formerly the top litigator at the RIAA, and led its charge against Napster. Fabrizio was deeply involved in key copyright lawsuits, including the fights against Grokster, Hotfile, and Aereo. Basically, much of the history of "anti-piracy" litigation and "anti-piracy" efforts regarding the internet, was somehow touched by Steve Fabrizio.And, of course, the usual line that people would give in supporting these positions is that it was necessary is because "piracy is illegal" and so on.Anyway, that's why it's a bit shocking to discover that Fabrizio has now been arrested in DC (and fired by the MPAA) for alleged sexual assault and blackmail. Variety's story on the charges is really quite incredible:

According to a police affidavit, Fabrizio is accused of threatening a woman he met on a sugar daddy dating site. The police allege that Fabrizio and the woman had consensual sex once on Aug. 19, after which he paid her $400. After that, she did not want to see him again. According to the affidavit, Fabrizio sent numerous texts insisting on a second meeting, and threatening to expose her if she did not comply.I know where you live, he allegedly wrote. I know where you work. Don't think Hospital would be happy to know that it's young nurses are having sexual for money / Same for your landlord.Fabrizio allegedly used those threats to coerce her into having sex again, according to the affidavit. The police allege that he then sent additional texts threatening to tell her parents if she did not continue to have sex with him a couple times a month. The woman called the police. After arranging for another meeting, Fabrizio was arrested outside the woman's apartment on Friday morning, according to the document.
That is beyond horrifying -- especially given that part of Project Goliath was to try to get various state Attorneys General to argue that Google helped enable sex trafficking and other such things. Apparently, Fabrizio decided to "investigate" things a bit more directly.

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posted at: 12:00am on 28-Aug-2019
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7 Reasons Your Small Business Needs an Automation Strategy (And How to Make it Work)

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One of the biggest challenges out there for any small business is a lack of resources, at least if they're new to the market. As a small business owner, you'll often find that your employees and yourself are spread too thin. And while this hands-on approach does have some upsides, it prevents your company from […]The post 7 Reasons Your Small Business Needs an Automation Strategy (And How to Make it Work) appeared first on Adotas.

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Psychology of Color in Branding Infographic

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Woman Complains About Trooper's Behavior, Ends Up Getting A Whole Bunch Of Cops Fired For Timecard Fraud

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It's not often a citizen's complaint results in a fired officer. Even more rarely does it result in a criminal investigation and prosecution. But a woman known only as "Debbie" hit the accountability jackpot, as Matt Rocheleau reports for the Boston Globe. And it all started with nothing more than a state trooper being an asshole.

The woman was driving through the Ted Williams Tunnel on her way to Logan Airport on a weeknight three years ago when a Massachusetts State Police trooper popped out of nowhere in front of her car, arms flailing, gesturing to pull over.“Do you not speak English?” the trooper yelled after she rolled down the window.An Asian-American with a medical degree from Harvard, the woman spoke four languages fluently.“Sir? What should I do?” the woman recounted in a complaint she later filed.Again and again, the white trooper yelled, “Don’t you speak English?” she wrote, adding that several times he put his hands on his hips against his gun holster.
Debbie was given a ticket for driving 10 mph over the speed limit by another trooper at the scene. She filed a complaint with the State Police about the trooper, only to be greeted with the dismissive disdain so many law enforcement agencies direct at complainants.
Two days later, she received the first of two calls from a State Police investigator, according to an e-mail she wrote to an attorney she had consulted, and shared with the Globe. The investigator “seemed particularly bothered by my reporting racial discrimination,” Debbie wrote to the attorney. “He stated repeatedly that he did not feel that what I reported sounded racist to him and that he found my labeling it as such ‘inflammatory.’ ”
This wasn't the only investigator Debbie spoke to. Another investigator seemed completely uninterested in her story about a bigoted cop. This investigator was far more interested in when the incident had taken place. Debbie's ticket had been tossed when she challenged it. The clerk magistrate saw the date and time were incorrect and dismissed it. That's when things started to get really interesting.First, the State Police actually opened an internal affairs investigation into Debbie's claim of verbal abuse. This was upheld and the trooper who yelled at her during the traffic stop retired shortly thereafter. The other trooper at the scene -- the one who wrote the ticket with the wrong date and time -- was also under investigation.As it turned out, the trooper whose name was on Debbie's ticket played it fast and loose with important details like time and date. It wasn't because the trooper, Eric Chin, wasn't detail-oriented. It was because Trooper Chin was frequently trying to do tomorrow's work today -- the sort of thing that might have been considered inspiring if it wasn't tied to criminal activity.
In court records filed in July, state prosecutors noted that Chin had written eight tickets on the day Debbie was pulled over and post-dated them to make it appear he worked the following day. Other records indicate he worked only a small portion of his shift on the following day.Troopers charged in the overtime scheme used various methods to conceal their absences from shifts, according to court documents, including changing dates on copies of citations they submitted or writing entirely bogus tickets and failing to file copies to process the violation.
Chin pled guilty to an embezzlement charge in 2018. He was fired by the State Trooper's and forfeited his pension benefits. Trooper Eric Chin was a bad apple. But he wasn't alone. His unit was a barrel that held several rancid apples just like him, each one more anomalous than the next.
The findings prompted additional investigations into Chin’s colleagues at Troop E, and the case widened from there, eventually ensnaring about one-third of the unit. Troop E, which primarily patrolled the turnpike, was disbanded in spring 2018, with several troopers eventually brought up on charges.
Maybe former Trooper Chin feels the other officer, Michael Casamassima, is to blame for his downfall. After all, if Trooper Casamassima hadn't repeatedly asked if Debbie spoke English during the traffic stop, she wouldn't have filed the complaint that led to the discovery of Troop E's collective fraud. But the worst law enforcement officers tend to gravitate towards each other. There's safety in numbers. No one wants to break rank and bring the whole scheme crashing down, especially when they're equally complicit in the fraud being perpetrated.If there's a moral to this story, maybe it's to always complain when you feel you've been mistreated by public servants. If they're willing to make bigoted assumptions out loud in public, there's a good chance they're doing worse things away from the public eye.

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Another Bad PR Sign: Indie Developer Shuns Epic Store, Saying 'My Word Means Something'

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We were just discussing how there are some cracks starting to show in the PR war that Epic decided to kick off when it initiated the PC gaming platform war against Steam. Part of the problem Epic has is that, despite its attempt to frame its exclusivity deals as some attempt to heal a broken PC gaming industry, the public very clearly isn't buying it. It's gotten bad enough that publishers that buy into Epic's exclusive deals are proactively messaging publicly to the gaming masses that they would prefer not to be the target of widespread harassment.That, honestly, is bad enough to warrant concern by the industry as a whole. But when indie developers begin coming out publicly to refuse an Epic Store agreement, and frame that decision as a moral choice, the problem has only deepened. Wlad Marhulets is the solo developer behind Darq, a horror game released recently. He got an email from Epic seeking to sell the game on the Epic Store. Marhulets read the email and its request for an exclusivity deal, then he took a look at all the backlash other publishers have faced for entering into that agreement, and decided that he would be breaking his word to the public by entering into such a deal.

After asking whether Epic Games’ offer necessitated exclusivity, and hearing that it did, Marhulets turned down the deal before even discussing money. Darq had been on Steam since November, 2018, and is also for sale on GOG. The horror adventure game was within the top 50 most wishlisted games on the platform before launch. “I felt going for an exclusivity deal would show that my word means nothing (as I just had promised the game would launch on Steam),” wrote Marhulets on Reddit. The positive response from fans was huge.
To be clear, you can think that what Epic is doing is truly good for the industry while also acknowledging that stories like this show pretty clearly that Epic appears to be losing the PR war it decided to wage. Again, the public is not on the side of exclusivity in exchange for higher splits for publishers. It would honestly likely be much different if Epic offered its splits without the exclusivity. In that case, the messaging would be: "You can buy it on Steam and screw the gamemaker, or buy it on our platform and benefit them. Your choice." In that case, the moral case is much more clear than when Epic attempts to limit consumer choice the way they have.This is shown to be all the more the case when looking at how fans have reacted to Marhulets' messaging.
Darq’s Steam comments are dominated by grateful messages from fans and some derision for Epic. “I purchased a copy of DARQ to support this fine developer’s ethical business practices. Thank you for keeping your promises and taking a stand against store exclusivity. The world needs more folks like yourselves,” wrote one. “Support devs who keep their promises and stand up against evil. It also happens to be a great game so.. what are you waiting for?” said another.
If Epic wants to be as idealistic as it claims, it can have its profit splits and cool it with the exclusivity. The way this is going, it is starting to feel clear that this isn't a war Epic is going to win long term anyway.

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This Week In Techdirt History: August 18th - 24th

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Five Years AgoThis week in 2014, all eyes were on the protests in Ferguson, Missouri where police were threatening and arresting reporters even after, it turned out, they signed a court agreement promising not to. It was a stark example of the broader problem of police militarization, a trend promoted by defense contractors thanks to which police in the suburbs sometimes have more powerful weapons than Marines in Afghanistan, and of course the routine use of tear gas which is a banned chemical weapon except for domestic use thanks to... an exception lobbied for by the US.Ten Years AgoThis week in 2009, we wondered if there could be any such thing as a fair trial about file sharing given the proliferation and normalization of biased language about "piracy" and "property". Courts were busy insanely slicing and dicing the Superman copyright, the IFPI was insisting that the Pirate Party shouldn't be allowed to hold the positions it does, music publishers were waging their war against lyrics websites, the Associated Press was still utterly failing to explain its plan to DRM the news, and we saw the kickoff of a new copyright maximalist push in the UK after Lord Peter Mandelson spent the weekend with David Geffen. We also took a look at a murky and possibly-apocryphal, but nevertheless interesting, story about what might have been the first-ever copyright trial in 6th century Ireland.Fifteen Years AgoThis week in 2004, after all the hype, the Google IPO... was delayed by the SEC. Then the company admitted it had been a bit overly optimistic by lowering the IPO range and cutting the number of shares, before finally actually going public and only hitting the bottom price of the reduced range.Also this week in 2004: music labels were continuing to bet the farm on ringtones being more than a trend, Real was hoping its battle with Apple would spark some good customer responses but apparently forgot it still wasn't a super-popular company, and an appeals court upheld the all-important Grokster decision.

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Rutgers Forces LA High School To Change Logos Due To Its 'R' Trademark

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Over the years, we've seen plenty of aggression from universities when it comes to trademark enforcement. The impetus for much of this was rulings nearly a decade ago that essentially gave universities far broader and more exclusive rights to their school logos. The fallout of those rulings became schools going after all kinds of uses and near-uses of those logos, including a strange war on pastries, and colleges going after high schools for using similar iconography.The latter continues to the present. The latest version of this is Rutgers, in New Jersey, forcing a Louisiana high school to change its logo because it was essentially the same as Rutgers' famed "R" logo.

New Jersey's flagship university has asked a high school in Louisiana to change its logo because it's identical to the block "R'' that Rutgers has trademarked.Lincoln Parish Schools official Ricky Durrett tells the Courier News of Bridgewater the company that manages Rutgers' brand requested Ruston High School stop using it.Rutgers says the high school has 10 years to replace the logo on gear, social media platforms and on the school's website.
The logos, to be fair, are somewhat similar, although it seems that's more a function of them being a single letter than anything else. (Rutgers' is on the bottom.)

On the one hand, look, Rutgers' demand timelines aren't wholly oppressive. Ten years is a nice stretch of time within which Lincoln Parish can work. On the other hand, allowing for such a timeline only seems to solidify the impression that none of this is really necessary to begin with. Is Rutgers really suggesting that someone is going to be confused between the NJ school and LA high school? Is there some odd concern that parents of high school students will think they're supporting Rutgers by buying the high school's apparel? Is anyone, anyone at all, really going to be confused about any of this?The answer sure feels like "no." Rutgers likely would state that it must take these actions or risk losing its trademark. Except that's only the case if there is the actual potential for confusion and if a court bought that it was operating in the same marketplace as a high school many states away. Both seem unlikely to me.But, of course, the high school is changing its logo rather than fighting against the much larger Rutgers.

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The Oakland PD's Dramatic Drop In Use-Of-Force Incidents Is All Bullshit

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Well, this post of mine has aged terribly.Back in 2014, I breathlessly reported the Oakland PD's adoption of body cameras had resulted in sweeping improvements to its use of force. Deadly force usage had dropped to nothing, reducing the number of people killed by cops from eight per year to zero.That still holds. If you just look at dead bodies, you'll see that the Oakland PD had produced zero corpses in the 18 months following the installation of body cameras. But other stats in that report are a bit more questionable.

[Mayor] Jean Quan said Oakland police officers had 2,186 use-of-force incidents in 2009, the last year that no officers wore body cameras, and that number declined to 836 such incidents last year and to only 572 incidents so far this year, with just two weeks remaining.
Were body cams really the panacea? Did this program actually introduce accountability?Unfortunately, it appears the body cams changed nothing. Precipitous drops in use of force incidents have continued. Year after year, the Oakland PD appeared to improve its relationship to the public in terms of subjecting them to physical restraint or bullets.But the drop observed here has turned out to be too good to be true. Turns out the easiest way to reduce use of force stats is to… stop reporting uses of force.
[I]n September 2018, the Oakland police’s inspector general, an internal watchdog, found that officers under-reported the number of times they pointed their guns at people. In November, the department’s independent monitor confirmed the inspector general’s determination while also noting multiple cases in which officers struck or wrestled with people and failed to report it.
The report [PDF] by the Oakland PD's Inspector General shows officers fudging numbers to make it appear as though the force was using less force. There may have been little to no improvement whatsoever, even with the addition of body cameras. I mean, thank god the force didn't keep killing eight people a year, but beyond the periodic homicide, there has been little improvement.Substantial drops in several use of force stats prompted this IG investigation, as well as an internal review initiated by the PD itself. What investigators found was very little change in use of force habits, but a lot of change in use of force documentation.Pulling a sample of incidents in which use of force would be expected, the OIG found officers simply weren't documenting their force deployments.
All documentation and available video footage for the 47 incidents were reviewed. Of these 47 incidents, the auditors identified 17 in which a reportable use of force went unreported (no use of force form was completed).
You've heard the "bad apples" excuse. It appears the rotten apples within the Oakland PD tend to gravitate towards each other.
Twelve of the 17 incidents of underreporting involved four squads of officers.
It's not all bad news, though. The department was at least forward-thinking enough to believe certain cases might need additional review. This policy would at least give a second pass to "contempt of cop" arrests.
The Chief published a Special Order requiring supervisory review of PDRD footage for incidents involving Penal Code 69, 148, and 243(b)(c) arrests (threatening an officer, resisting arrest, battery on an officer) in late November 2018.
But there's plenty of bad news. The Oakland PD instituted policies meant to compile objective reporting of use of force incidents. But then it undermined its own policies by allowing officers to make judgment calls on reporting.
In practice, a police officer’s “intention” is a dominant factor in determining whether the pointing of the firearm at the subject(s) is reportable, a result of an inadequately designed policy.
Because of these deficiencies, the Oakland PD revamped its policies in 2018. This resulted in a dramatic change in use of force stats, albeit not in the direction one would hope.
[B]eginning in October 2018, the total number of reported uses of force (all types of force) increased dramatically, by nearly 300% between January and May 2018 and January and May 2019.
So, it's mostly bad news, highlighted by the uptick in force deployment post-policy fix. Even with the fixes, the OIG found even more under-reporting.
Upon review of the associated video recordings for the 47 incidents likely to involve force in which the arrests were more probable to have involved a use of force, there were 177 incidents in which the Lead Auditors deemed a reportable weaponless defense technique or pointing of a firearm(s) was used and not reported and documented.
It's not just about guns. These are a few cases the OIG highlights in its report, showing even use of less-than-deadly force went unreported despite the new policies.
1. Officers were in a foot pursuit of a subject and an officer forcefully pushed the subject, causing him to fall on the ground against a fence. The reporting officer stated in his report “no known witnesses.” OIG’s review of the associated video footage identified multiple witnesses on scene when the force in question was used.2. Officers were attempting to place a subject in handcuffs, and the subject stood up and punched an officer in the face. Another officer wrapped his arms around the subject, physically lifting him off the ground causing them both to fall backwards onto a glass table and then lifted the subject back onto a couch.3. A detained subject started to run from an officer, and the officer grabbed the subject by the hair and pulled him to the ground. The officer failed to articulate and document in his report that he pulled the subject by his hair.4. During the search of a subject, the subject turned to run, and the officer grabbed him, causing them both to fall to the ground. The officer also delivered an intentional forearm strike to the subject’s right tricep area while attempting to handcuff the subject.
Cops may complain body cameras are nothing more than "gotcha" devices meant to catch them abusing people and violating their rights. The flow of these policemen's tears would mean oh so much more if the body cameras didn't catch them abusing people and violating their rights. So, if nothing else, the body cameras are exposing what officers hoped to cover up by not filing use of force reports.Then there's this: cops may argue they don't engaged in biased policing, but the stats belie their protestations of "fair and balanced" enforcement.
There were 12 incidents involving 19 subjects in which the audit found the pointing of the firearm should have been reported as a use of force but was not. Of the 19 subjects, 17 were African American (89%) and 2 were Hispanic (11%).
So, every time a white person has a gun pointed at them by an Oakland PD officer, it gets reported. That seems a bit troublesome.And there's little reason to believe the ongoing use of body cameras will result in more conscientious policing. Officers apparently believe recording interactions with the public is optional.
Upon review of the associated video recordings for the 47 incidents likely to involve force in which the arrests were more probable to have involved a use of force, the lead auditors determined there were PDRD concerns in 19 incidents. However, 18 of the 19 incidents involved officers not complying with PDRD policy requirements.
Fortunately, the large number of cameras issued ensure there was at least some footage of every use of force incident. Unfortunately for officers who "forgot" to activate their cameras, other officers activated theirs, giving investigators all they needed to discover multiple violations of the PD's body camera policies.The Oakland PD only looks better on paper. It has barely changed at all since the institution of body cameras and use of force reporting requirements. Some cops hate accountability and many apparently view this as damage to be routed around. Until the PD steps up and starts firing people for violating policy, the practice of fudging the numbers and neglecting camera obligations will continue.

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What3words Is A Clever Way Of Communicating Position Very Simply, But Do We Really Want To Create A Monopoly For Location Look-ups?

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The BBC News site has one of those heart-warming stories that crop up periodically, about how clever new technology averted a potentially dangerous situation. In this case, it describes how a group of people lost in a forest in England were located by rescue services. The happy ending was thanks to the use of the What3words (W3W) app they managed to download following a suggestion from the police when they phoned for help. W3W's creators have divided the world up into 57 trillion virtual squares, each measuring 3m by 3m (10ft by 10ft), and then assigned each of those squares a unique "address" formed by three randomly-assigned words, such as "mile.crazy.shade". The idea is that it's easier to communicate three words generated by the What3words app from your position, than to read out your exact GPS longitude and latitude as a string of numbers. It's certainly a clever approach, but there are number of problems, many of which were discussed in a fascinating post by Terence Eden from earlier this year. The most serious one is that the system is not open:

The algorithm used to generate the words is proprietary. You are not allowed to see it. You cannot find out your location without asking W3W for permission.If you want permission, you have to agree to some pretty long terms and conditions. And understand their privacy policy. Oh, and an API agreement. And then make sure you don't infringe their patents.You cannot store locations. You have to let them analyse the locations you look up. Want to use more than 10,000 addresses? Contact them for prices!It is the antithesis of open.
Another issue is the fact that the physical locations of addresses are changing in some parts of the world:
Perhaps you think this is an edge case? It isn't. Australia is drifting so fast that GPS can't keep up.How does W3W deal with this? Their grid is static, so any tectonic activity means your W3W changes.
Each language has its own list of words, and there's no simple way to convert between them for a given location. Moreover, there is no continuity in the naming between adjacent squares, so you can't work out what nearby W3W addresses are. Fortunately, there are some open alternatives to W3W, many of them listed on a page put together by the well-known OpenStreetMap (OSM) group. OSM also points out the main danger if W3W is widely used -- Mongolia has already adopted it as an official addressing system for the country:
What3words is fairly simple from a software point of view, and is really more about attempting establish a standard for location look-ups. It will only succeed through the network effect of persuading many people to adopt and share locations. If it does succeed, then it also succeeds in "locking in" users into the system which they have exclusive monopoly over.
Given that problem, it seems questionable that, according to the BBC story, the UK police are urging "everyone to download a smartphone app they say has already saved several lives". Since when has it been the police's job to do the marketing for companies? Moreover, in many emergencies W3W may not be needed. Eden mentions a situation described given by a W3W press release:
Person dials the emergency services
Person doesn't know their location
Emergency services sends the person a link
Person clicks on link, opens web page
Web page geolocates user and displays their W3W location
Person reads out their W3W phrase to the emergency servicesHere's the thing... If the person's phone has a data connection -- the web page can just send the geolocation directly back to the emergency services! No need to get a human to read it out, then another human to listen and type it in to a different system.There is literally no need for W3W in this scenario. If you have a data connection, you can send your precise location without an intermediary.
That seems to have been the case for the people who were lost in the forest: since they were able to download the W3W app, as suggested by the police, a Web page could have sent their geolocation to the emergency services directly. Maybe that boring technical detail is something the BBC should have mentioned in its story, along with all the heart-warming stuff.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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Why Is MLB Claiming Revenue From Obviously Fair Use Videos On YouTube?

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Nearly a decade ago, we wrote a bunch about an excellent book called Copyfraud, by law professor Jason Mazzone, which went into great detail about how the legacy entertainment industry companies have used copyright in ways that are clearly against copyright's intent -- to the point that they border on fraud. The concept of copyfraud should be referred to more frequently, and here's a perfect example. Just a couple months ago, we wrote about the amazing social media account of Jimmy O'Brien, who goes by @Jomboy_ on Twitter. He's combined his love of baseball, his video editing skills, his ability to read lips incredibly well, and with a sarcastic, dry sense of humor to make a ton of amazing videos about various things happening in baseball. We highlighted a bunch last time around and his profile has only grown a lot since then, including among Major League Baseball players.About a month after that post, Jomboy may have had his biggest moment so far, in putting together a truly amazing video of NY Yankees manager Aaron Boone getting ejected -- following a bunch of players and Boone arguing with a young umpire over some bad calls. What took the video from normal great to amazing was that it revealed exactly what Boone was saying to the ump during their argument thanks to a bunch of "hot mics" from the broadcast. That allowed us to learn a lot more about this argument than anyone normally does in watching a manager scream at an ump:

That video alone went crazy viral and launched an even more viral meme in the phrase "fucking savages," that is now on tons of t-shirts. Yankee fans have embraced it. The players have embraced it. By any stretch of the imagination, this was actually great for the game of baseball.So, of course, Major League Baseball wants to kill it. Because that's what MLB does. MLB's head of discipline (and a former Yankee manager himself), Joe Torre is apparently really really upset about these hot mic videos that have gotten fans so excited about the game. Because how dare fans learn about the personalities of the people in the game.
The preponderance of that information has become more common lately, as microphones have picked up what's said on the field, leaving little to the imagination. Torre will take the information, but he'd rather it wasn't available to anyone with a Twitter account.That's not the way I want to hear it, for everybody else to hear it,'' Torre said Tuesday at Yankee Stadium. I wish I could hear it, only. It makes it easy to make my decision.
Apparently, Torre met with Boone to "discuss" the hot mic "issue" (there is no issue), leading one of the Yankees' beat reporters, Bryan Hoch, to point out that this meeting was really happening because someone like Jomboy made a video:
So, first of all, this is incredibly dumb on MLB and Torre's part. Torre, of course, has famously had his own hot mic moments during ejections as well.But it gets dumber, and it involves out and out copyfraud.In response to Hoch's comment, a Twitter user joked that MLB doesn't want Jomboy "profiting off their backs." To which Jomboy noted that MLB "claims" all of his videos on YouTube, so when he has videos that get millions of views (as many of his do), it's MLB collecting the revenue.
Someone rightly points out that "it seems way beyond fair use" and Jomboy notes that he tried that once, but YouTube rejected it:
This all seems ridiculous for a whole variety of reasons. First off, this does appear to be quintessential fair use. It's a (tiny) portion of the video. It's done for reporting purposes, it's arguably transformative (the videos show a very different side of the game), and it seems to only increase the potential market for baseball, not decrease it. But, because of the system YouTube has set up here, MLB gets the money.No one is watching these videos as a replacement for MLB content. They're watching it to get Jomboy's insight, humor, lip reading skills and such. And yet, MLB is getting the money.That's blatant copyfraud.I'm sure O'Brien has little interest in antagonizing MLB (which should be celebrating him rather than worrying about his videos), so he probably has no interest in fighting this with a lawyer. But, again, that demonstrates MLB's abuse of power here. It knows that it can take the money from Jomboy's work and he can't push back very hard or he'll run into other problems with MLB.Either way, I'm wondering about all those folks who show up in our comments saying stuff about how strong copyright is necessary to "protect creators" feel about this situation? Here a creator is getting robbed of revenue he should legitimately have earned, because YouTube is handing it to a giant corporation instead.

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Cracks Showing In Epic Store's PR War As Developers Have To Plead With Public To Not Harass Them

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We've been discussing the new PC gaming platform wars that kicked off with Epic releasing their own Epic Store to rival Valve's Steam and attempting to power it with game exclusives built on a more generous split with publishers. There has obviously been a lot to talk about in this new rivalry, from Steam's response, to Epic's flubbing of its store's main purpose, to the effect Epic's exclusivity deals are hampering the use of crowdfunding to get more games made. But one of the most interesting aspects of this whole ordeal is how clearly Epic's leadership has attempted to frame this all as a PR war above all else. Essentially, Epic is combating the public's natural distaste for exclusivity deals by pointing the finger back at Steam, stating that none of this would be an issue and the exclusive deals could go away tomorrow if Steam mirrored Epic's revenue splits. The argument is that what Epic is really after is a better gaming industry that makes more and better games, something that should benefit the very fans now complaining about the company's tactics.So, how's that PR battle plan working? Not terribly well, judging by some of the peripherals. For instance, when part of the announcement for a game publisher releasing exclusively on Epic includes the company begging gamers not to hurl vitriol at it in response, that's an indication the gaming public hasn't been swayed.

One of the easiest bits of news to miss on Monday’s Gamescom Opening Night Live show was tucked away in an ad for the Epic Games Store. A simple sizzle reel that showcased a number of games exclusive to the controversial digital PC game storefront included an upcoming indie that previously wasn’t in Epic’s roster: Oddworld Soulstorm. Shortly after, Oddworld creator Lorne Lanning posted a message via the Oddworld Twitter account.
If that all reads to you as a thinly veiled attempt to plead with the public not to harass the Oddworld folks over the exclusivity deal, that's because that's exactly what it is. And, as you may have guessed, it didn't work. In fact, not only did the anger at the exclusive Epic Store release come through anyway, Glumberland, the company behind the game, was taken to task for attempting to head off the storm with the above message.
It proved to be a futile effort, as post from Ben Wasser—one of Glumberland’s two members—detailed the deluge of harassment he received for choosing to sell his game in the way that he wished. Among the usual complaints was a new one: Wasser was rude for calling the mob of harassers toxic and entitled, and that the glibness of his initial post was disrespectful.
A couple of things are worth noting here. First, most of the harassment thrown at gamemakers over their business practices is way, way out of hand. It's the kind of toxic overreaction and entitlement that gives gamers everywhere a bad name. Second, there is no real indication as to whether this is a vocal minority or majority, only that it is indeed vocal.Still, we're at a place in all of this where publishers are proactively sending out these messages to reason with that vocal group and to attempt to head off the shitstorm of backlash over exclusive deals with the Epic Store. Whatever that is, it is most certainly not an indication that Epic is winning the PR war it chose to start.

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Federal Prosecutor Blames Philadelphia DA For Shootout That Wounded Six Philly PD Officers

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Inside Attorney General William Barr's long rant about the lack of respect for police officers in this nation was a shot or two at recently-elected District Attorneys (like Philadelphia's Larry Krasner). Barr feels -- like many of the police union reps he was speaking to -- DAs that institute reforms, reduce incarceration, and punish police officers for misconduct are on the wrong side of history.

There is another development that is demoralizing to law enforcement and dangerous to public safety. That is the emergence in some of our large cities of District Attorneys that style themselves as “social justice” reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.These anti-law enforcement DAs have tended to emerge in jurisdictions where the election is largely determined by the primary. Frequently, these candidates ambush an incumbent DA in the primary with misleading campaigns and large infusions of money from outside groups.Once in office, they have been announcing their refusal to enforce broad swathes of the criminal law. Most disturbing is that some are refusing to prosecute cases of resisting police. Some are refusing to prosecute various theft cases or drug cases, even where the suspect is involved in distribution. And when they do deign to charge a criminal suspect, they are frequently seeking sentences that are pathetically lenient. So these cities are headed back to the days of revolving door justice. The results will be predictable. More crime; more victims.
A department that frequently touts the power of prosecutorial discretion is angry because prosecutors are exercising discretion. And it's a bit rich for AG Barr to complain about "revolving door justice" when law enforcement agencies all over the nation continue to hire officers fired for misconduct and abuse by other agencies.The administration's back-the-blue attitude is on full display. Barr's angry speech about the respect he believes officers are owed has trickled down to the lower ranks of federal prosecutors. In the wake of a shootout between a criminal suspect and several Philadelphia police officers, US Attorney William McSwain decided to take his own shot at Philadelphia DA Larry Krasner.
What I witnessed last night was true heroism by the Philadelphia police. But the crisis was precipitated by a stunning disrespect for law enforcement - a disrespect so flagrant and so reckless that the suspect immediately opened fire on every single officer within shooting distance. Only by the grace of God did they survive.Where does such disrespect come from?There is a new culture of disrespect for law enforcement in this City that is promoted and championed by District Attorney Larry Krasner - and I am fed up with it.It started with chants at the DA's victory party - chants of "F*** the police" and "No good cops in a racist system."We've now endured over a year and a half of the worst kinds of slander against law enforcement - the DA routinely calls police and prosecutors corrupt and racist, even "war criminals" that he compares to Nazis.This vile rhetoric puts our police in danger. It disgraces the Office of the District Attorney. And it harms the good people in the City of Philadelphia and rewards the wicked.
While McSwain was bitching about a prosecutor he doesn't like, DA Larry Krasner was praising the Philadelphia PD -- which saw six of its officers wounded -- for their handling of the volatile situation.McSwain also suggested the federal branch would step in to directly control the actions of the Philly DA. His exact words were "We're going to provide some adult supervision." As Adam Steinbaugh points out, that's not how federalism works. Someone must have pointed that out McSwain, who walked back this comment (but none of his press conference remarks) less than two hours later.Perhaps the federal prosecutor was just being reflexively defensive. The person who allegedly shot all of these cops was a federal snitch who got a break on his most recent prison sentence because of how helpful he was.
McSwain failed to mention, however, that alleged shooter Maurice Hill’s interactions with law enforcement predated Krasner taking office. Nor did McSwain acknowledge that the 36-year-old Hill, who on Saturday was charged by Krasner’s office with attempted murder and multiple counts of aggravated assault related to the incident, has been a federal informant for years, according to documents obtained by The Appeal.
McSwain may have known this news would eventually come out and needed to get out ahead of the narrative before it flipped. Or he may have been blissfully unware and simply decided to engage in the DOJ's "criticizing law enforcement kills cops" politicking. Neither move makes McSwain or police officers look any better or does anything to close the divide between the public and its public servants.But this is the narrative that's being aggressively pushed with Bill Barr running the DOJ. Anyone who isn't willing to shower cops with respect and adulation is an enemy -- even those basically playing for the same team. There will be no prosecutorial discretion under this administration. There will only be as much cruelty and punishment as it can possibly mete out. Every time something bad happens to a cop, some federal law enforcement rep will be there to claim it was disrespect -- rather than guns and bullets -- that hurt or killed the officer.

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posted at: 12:00am on 22-Aug-2019
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Intra-Family Trademark Violence: SR Sues JR For Using His Own Name In Law Firm Marketing

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With the chief hurdle for infringement in trademark law being potential public confusion as to the source of a good or service, we sometimes toss that standard around as a blanket sort of thing. And, in trademark law, it kind of is just that binary. But the combination of the protectionist view of trademark law taking hold in America and the unfortunate habit of many people attempting to trademark their own names in one fashion or another, I wonder if the law might need to be updated in some ways. For example, we've seen several instances of intra-family trademark spats that arise from a person or business looking to trademark or simply use their own names. Any system of trademark enforcement that results in broadly disallowing someone to use their own name in the marketplace feels like a clear step too far, if only from a common sense perspective.Yet it keeps happening. The latest iteration of this involves a lawyer, George Sink Sr., suing his own son, George Sink Jr., for using his own name for his law firm and marketing material. The court overseeing the matter just this week issued a restraining order barring George Jr. from using his own name to advertise his firm.

A Fourth Circuit judge issued a temporary restraining order that stops Sink Jr. from using the family name to advertise his personal injury firm on its website, in email, and on social media.“George Sink Jr. is of course not barred from practicing law under his birth name, but in advertising for his legal services he must do more to differentiate between him and plaintiff,” writes Judge David Norton. “The mere fact that it is George Sink Jr.’s given name does not automatically shield him from allegations of infringement.”The court documents note the similarities in the advertisements Sink’s son was using and said customers might and in some cases did get confused about which Sink law firm they were dealing coordinating with. “The logos that each party uses on their respective law firm websites, the name GEORGE SINK is more prominent than the auxiliary words,” writes Norton.
Again, perhaps this all legally correct. But that sure feels like an indication that there is a problem with the law, not with a person using his or her own name in their business' name. And the fact that this sort of dispute incorporates an inter-family squabble makes this all the more bizarre. George Jr. apparently worked for his father's firm some time ago and practiced there as George Jr. His firm handles a different type of law than his father. But now that his son has opened up his own firm using the uncreative name George Sr. gave him, it's a legal matter.
In the suit, Sink Sr. says the company name is "famous" around South Carolina and Georgia. He also notes in the document that the business' name is trademarked, and by using a similar name, his son is committing trademark infringement and creating unfair competition. According to the lawsuit, Sink Jr.'s firm was hurting his father’s online reviews and prominence on search websites.In the lawsuit, Sink Sr. alleges that his son has always preferred the nickname "Ted," and by going by the same name as his father, he is confusing customers.
George Sr. sure seems fun. Regardless, I can't think of any reason why a bit more nuance couldn't be inputted into existing trademark law. All this really screams for is a provision in the law that would allow someone to use their birth-name so long as there was no other attempt to create confusion with another entity holding a similar mark.That...just doesn't seem too hard to do.

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posted at: 12:00am on 21-Aug-2019
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White House Suspends Another Reporter's Press Pass, Once Again, Raising 1st Amendment Concerns

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As you'll recall, last year, the White House tried to remove CNN reporter Jim Acosta's press pass over a silly made up controversy claiming that he had "assaulted" an intern in trying to hold onto the microphone while the intern had tried to pull it away. CNN sued and a court sided with them in blocking the White House's action. Soon after, the White House released new rules, that we mentioned left them open to future 1st Amendment challenges.Well, here we are. On Friday, the White House removed Playboy reporter Brian Karem's press pass, claiming it was about some sort of weird yelling match Karem had with ex-Trump official Sebastian Gorka at Trump's silly social media troll summit back in July. Karem immediately said he'd sue over the removal and his attorney Ted Boutrous has sent a series of letters to White House press secretary, Stephanie Grisham over the last few weeks. The opening of the first one lays everything out pretty nicely.

We write on behalf of our client, Brian Karem, who serves as the White House correspondent for Playboy, in response to your August 2, 2019 letter informing of your "preliminary decision" to suspend his hard pass for 30 days, supposedly "due to [his] conduct at the press event in the Rose Garden on July 11, 2019," and giving him one business day to submit a response before you "make a final decision on the matter." We object to this arbitrary and unfair procedure threatening to deprive Mr. Karem of his constitutionally protected liberty and property interests in his hard pass, which would flatly violate the First Amendment and the Due Process Clause and the principles established by the D.C. Circuit's decision in Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) and many other cases. Your invocation of the Rose Garden event weeks after it occurred and without any notice whatsoever that you were considering taking action against Mr. Karem is the opposite of due process, and is clearly pretext for punishing Mr. Karem based on his viewpoint and the content of his reporting on President Trump.
It's the "arbitrary and unfair procedure" part of the above quote that is most important. The White House can't just cook up reasons to remove someone if the real reason is they don't like his reporting (as was the case with Acosta).In a later letter, Boutrous points out that Grisham herself has admitted to not following any basic due process, as required by the 1st Amendment:
Your email of last night revealed that you failed to conduct a reasonable investigation before reaching your preliminary decision. Among other deficiencies, you admit that you did not speak to a single witness. You did not speak to Sebastian Gorka, Jim Hanson, or any of the other individuals who are seen on video taunting and/or threatening Mr. Karem. You did not speak to any of the journalists who were standing alongside Mr. Karem in the press pen and observed firsthand what happened. Nor did you speak to Mr. Karem himself, despite his efforts to speak with you. In fact, you claimed you lack evidence that Mr. Karem made any attempt to speak with you. Enclosed with this letter are emails reflecting his efforts.You have also elected to ignore publicly-available evidence that Mr. Gorka has trumpeted his confrontation with Mr. Karem, bragging that he took on the "fake news industrial complex," as well as evidence that the President himself viewed the events as humorous. All of this information is highly relevant to your decision, yet you have deliberately chosen to ignore it.
After suggesting that Gorka was the one who initiated and escalated the confrontation, while Karem was the one who sought to de-escalate it, Boutrous also notes the following:
The President himself has used far stronger language and imagery. Among other things, he has tweeted an image of himself wrestling a CNN icon to the ground, and stated that a congressman who body-slammed a reporter is "my kind of guy." He has also urged his supporters to "knock the hell" out of protestors at his rallies, and remarked about one protestor, "I'd like to punch him in the face." If the President's statements cannot reasonably be understood as endorsing or inciting violence, the White House cannot possibly deem Mr. Karem's offer to "go outside and have a long talk" as over the line.
None of this seemed to matter. In the official suspension notice, Grisham insists that Karem's comment to go outside and have a conversation was obviously a threatening statement.It seems likely that Karem will now sue and we'll get yet another court to weigh in on the process by which the President (any President, not just this one...) can remove press passes.

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posted at: 12:00am on 21-Aug-2019
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Twitter And Facebook Removing Chinese Disinfo Campaigns Shows That, Contrary To Popular Opinion, They Do Moderate Against Disinfo

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Leaving aside the ridiculous and ignorant suggestions from some that no internet platforms should moderate anything, many, many people seem to believe (incorrectly) that the various internet companies refuse to moderate anything because it goes against their bottom lines. We've heard this from a number of politicians -- especially among those seeking to change Section 230, arguing (again, incorrectly) that because of Section 230 there's somehow no incentive to moderate content on their platforms.This is wrong on multiple levels. There is tremendous business, political, moral, and social pressure to moderate content on these platforms. When they get it wrong, they get criticized. They can lose users. And (importantly) they can lose advertisers, partners, customers and investors. There is demand for "healthy" platforms, and it's Section 230 that allows them to experiment and moderate accordingly. That's why it's notable to me that both Twitter and Facebook announced the removal of what appears to be a coordinated attempt to abuse both platforms to push disinformation against protesters in Hong Kong. Here's Facebook's announcement:

Today, we removed seven Pages, three Groups and five Facebook accounts involved in coordinated inauthentic behavior as part of a small network that originated in China and focused on Hong Kong. The individuals behind this campaign engaged in a number of deceptive tactics, including the use of fake accounts some of which had been already disabled by our automated systems to manage Pages posing as news organizations, post in Groups, disseminate their content, and also drive people to off-platform news sites. They frequently posted about local political news and issues including topics like the ongoing protests in Hong Kong. Although the people behind this activity attempted to conceal their identities, our investigation found links to individuals associated with the Chinese government.
And here's Twitter's announcement:
This disclosure consists of 936 accounts originating from within the People's Republic of China (PRC). Overall, these accounts were deliberately and specifically attempting to sow political discord in Hong Kong, including undermining the legitimacy and political positions of the protest movement on the ground. Based on our intensive investigations, we have reliable evidence to support that this is a coordinated state-backed operation. Specifically, we identified large clusters of accounts behaving in a coordinated manner to amplify messages related to the Hong Kong protests.As Twitter is blocked in PRC, many of these accounts accessed Twitter using VPNs. However, some accounts accessed Twitter from specific unblocked IP addresses originating in mainland China. The accounts we are sharing today represent the most active portions of this campaign; a larger, spammy network of approximately 200,000 accounts many created following our initial suspensions were proactively suspended before they were substantially active on the service.
Despite common perception, both companies have put a lot of effort into discovering and stopping these kinds of efforts. Of course, none of it will be perfect, because content moderation at scale is impossible to do well. Mistakes of both false positives and false negatives are inevitable. But, if anyone thinks that modifying Section 230 will magically make companies better at this, they're not paying attention. Adding more liability to companies over their moderation choices won't make these efforts any better or any easier -- they might just bog the companies down in lawsuits.

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posted at: 12:00am on 20-Aug-2019
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THE Ohio State University Applies For THE Stupidest Trademark In THE World

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We've talked ongoing about how ridiculous and aggressive many universities are becoming on trademark matters. Now colleges and universities do many, many annoying things, but their tendency towards trademark bullying certainly ranks up there near the top of the list. Not as high, of course, as Ohio State's neverending insistence that everyone call it "THE Ohio State University." The school likes to point out that the "the" (sigh) is actually part of the school's legal name, when the reality is that the school is simply being haughty and pedantic.Well, now these two worlds are colliding in what might just be the dumbest trademark application I've ever seen. You'll never guess what single word OSU wants to trademark.

Application No. 88571984, filed with the U.S. Patent and Trademark Office on Thursday, was discovered and publicized Tuesday by Josh Gerben, a prominent trademark lawyer in Washington. The application seeks a trademark on the single word "THE" for use on T-shirts and baseball caps and hats.  For years, the university's demand that it be called "THE Ohio State University" has rankled sports fans and journalists, who've called it "pompous and stupid," "ridiculous" and "arrogant."Partisans, including the university, point out that "the" is part of its name under state law. And Chris Davey, a spokesman for the university, told The Columbus Dispatch on Tuesday that it's important to "vigorously protect the university's brand and trademarks."
This, simply, is absurd. Trademark law is written in such a way to be wide open for abuse, but even this is a bridge further than the law will allow. Trademarks require original identifiers that indicate the source of a good or service and the bar for approval by the Trademark Office goes up the shorter and less original the identifier is. The idea that someone might apply for a trademark on the single most commonly used determiner in the English language is the sort of thing reserved for jokes in our comments section. But THE Ohio State University went ahead and did it anyway.Other schools took notice, of course, and some of them are having fun at OSU's expense.
Michigan getting a trademark on the word "of" makes every bit as sense as OSU's application. Fortunately, despite all of the madness we see from the USPTO on a frequent basis, nobody seems to think this application is going to be approved.
Gerben predicted on Tuesday that Ohio State was "likely to receive an initial refusal of the application."For a trademark to be registered for a brand of clothing, the trademark "must be used in a trademarked fashion," he said on Twitter. "In other words, it has to be used on tagging or labeling for the products. In this case, just putting the word 'the' on the front of a hat or on the front of a shirt is not sufficient trademark use," he said.
That careful analysis is almost certainly correct, but I much prefer to simply point out that this is all very, very crazy and be done with it.

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posted at: 12:00am on 20-Aug-2019
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This Week In Techdirt History: August 11th - 17th

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Five Years AgoThe fight for government transparency continued this week in 2014, with a judge giving the DOJ until the end of the month to submit a declassified FISA court opinion explaining the justifications for Section 215, the exposure of regular fraud and abuse by patent examiners that the USPTO tried to hide from the Inspector General, and new revelations from Ed Snowden including the fact that Syria's 2012 internet outage was the result of an NSA hack gone wrong, and that the agency abused its internet metadata program just like every other program. But the biggest battle was for the CIA torture report, which the intelligence community began warning would "inflame anti-US passions" in the Middle East if it was released.Ten Years AgoThis week in 2009, there was an earlier story of USPTO misbehavior in the form of bilking people out of money. The Encyclopedia Britannica yet again lost in an attempt to abuse a patent that it claimed covered basic GPS functionality, one judge blocked sales of Microsoft Word over patent infringement (in a ruling that had no hope of sticking) while another banned Real from selling RealDVD (sadly not so simple), and yet another overturned the ruling that allowed DVD jukeboxes. While the DOJ was defending the $80,000/song award in the Jammie Thomas lawsuit, a poet who tried to sue Oprah Winfrey for the even-more-insane sum of a trillion dollars saw his lawsuit thrown out — while another author was trying a similar approach to cash in on the success of Twilight.Fifteen Years AgoThis week in 2004, the number one culprit on the EFF's list of bogus patents was being wielded against universities and just about everyone else who streamed any kind of content online, while Microsoft was keeping the wheel turning with a newly granted patent on storing then automatically uploading data, and we talked about how innovation and IP hoarding don't mix. Meanwhile, Google was ramping up for its IPO (after giving some stock to Yahoo to settle outstanding legal disputes) and worrying its emails might be filtered as spam, while smaller investors tried to figure out if they could get in on the action and other companies quietly delayed their own IPOs to avoid getting lost in the Google hype.

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posted at: 12:00am on 18-Aug-2019
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Appeals Court Gives Gov't One More Chance To Lock Up Men For Producing An 'Illegal' Drug Its Own Chemist Said Wasn't Illegal

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How many chances does the government get to try to convict a couple of people for selling a drug analogue the DEA's own chemist said wasn't "substantially similar" to any controlled substance? Apparently the government will get at least one more swing at the plate, having batted .500 during its first two tries.In 2012, the DEA raided Zencense, a business owned by Charles Ritchie and Benjamin Galecki. They were charged with conspiracy to distribute controlled substance analogues. The "spice" made by Zencense used XLR-11 and UR-144 as active ingredients. The government claimed these were analogues of JWH-018, which is a controlled substance.The defendants argued that their spice was not an analogue of a controlled substance. If true, this sunk the government's case, because the conspiracy charges relied on the "knowing" distribution of illegal drug analogues.The government claimed XLR-11 and UR-144 were pretty much the same thing and pretty much identical to JWH-018. This testimony was undercut by one of the DEA's own chemists, who had stated in other prosecutions that UR-144 was not an analogue of JWH-018. Not only that, but the chemist's professional opinion on this subject was freely available online, as part of a handout on litigating synthetic drug cases.The defendants hoped to have the chemist testify on the differences between these substances, which would likely have resulted in them being found innocent of the conspiracy charges. The trial court denied this request, resulting in the defendants' first appeal.On appeal, the Fourth Circuit sided with the defendants, finding the government could not claim the chemist's testimony was "privileged" -- not when it had relied on it in other prosecutions. It sent the case back down to the district court to reconsider the admissibility of this exculpatory evidence.The case is now back in the Fourth Circuit Appeals Court, thanks to the lower court deciding once again that this testimony isn't relevant and would have had no effect on the outcome of the case. That the outcome was one mistrial and one hung jury (one that was un-hung with an Allen charge) seems to have escaped the attention of the court.The Appeals Court [PDF] wants to make sure this doesn't happen again. The lower court looked at the testimony that directly contradicted the assertions made by the government and shrugged.

On remand, the district court concluded that Dr. Berrier’s testimony was not material to Defendants’ case because it would have been “merely cumulative” to testimony from Defendants’ two other expert chemists. Ritchie III, 2018 WL 4693811, at *4. The district court determined that those chemists used the same methods and came to the same conclusion as Dr. Berrier, and that his “position at the DEA would not provide any new relevant information” to the jury. Id. The court accordingly held that Dr. Berrier’s exclusion from the trial did not violate Defendants’ Sixth Amendment compulsory process rights.
But it wouldn't be merely "cumulative." Yes, the defendants brought in their own expert witnesses but their opinions were pretty much nullified by statements the government's lawyers made during cross-examination.
Barred from questioning Dr. Berrier, Defendants relied on the expert testimony of two chemistry professors, Drs. Croatt and Dudley, who gave the same opinion that Dr. Berrier would have given—an opinion that contradicted Dr. Trecki’s. During cross-examination, the Government questioned Defendants’ “hired guns” about the compensation they received for testifying. In convicting Defendants, the jury ultimately rejected Drs. Croatt and Dudley’s expert opinion about XLR-11 and JWH-018.
The lower court claimed testimony from a DEA chemist about the non-similarity of the contested substances "would not have altered the trial's outcome." Nothing could be further from the truth, the Appeals Court explains.
[W]e disagree with the district court’s analysis of the “not merely cumulative” component, as we conclude that Dr. Berrier’s testimony was qualitatively different from the testimony of the other defense witnesses. In stark contrast to Drs. Croatt and Dudley, Dr. Berrier was not paid outside his DEA employment to form his opinion about XLR11’s chemical similarity to JWH-018. Nor would Defendants have paid him to testify at trial. Consequently, the Government could not have impeached Dr. Berrier in front of the jury for having a pecuniary motive for testifying. Dr. Berrier’s inability to be impeached on that ground made his testimony unique and particularly relevant, not cumulative.[...]Also unlike Drs. Croatt and Dudley, Dr. Berrier could have rebutted the testimony of Dr. Trecki, the Government’s DEA expert, with his own knowledge of the DEA’s processes and analyses. His expert testimony, which diverged from Dr. Trecki’s, could have shown the jury that the DEA’s own scientists could not agree on the substantial similarity of the chemicals at issue. Drs. Croatt and Dudley could not have provided that type of rebuttal testimony.
The testimony is material, not cumulative. And the error in disallowing it was far from "harmless." As the Appeals Court points out, the DEA expert's testimony would have introduced a significant amount of reasonable doubt -- enough to turn a hung jury into an exoneration.Unfortunately, this means the defendants have to go through all of this again. Their convictions have been vacated but the government will get a third chance to put them behind bars. The government is failing forward and it's facing people who don't have the luxury of taxpayer-funded, inexhaustible resources.

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posted at: 12:00am on 17-Aug-2019
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Embrace Fans: How One Mystery Modder Has Kept System Shock 2 Playable

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There's this weird thing in the video game industry in terms of how the industry reacts to fans doing things with their games. On one side, you have publishers that strictly control what fans can do with their games, even going the legal threat route at times. Other publishers are more permissive with game IP and are then shocked at what fans manage to do with their games. Still other publishers proactively create tools within their games to allow fans to create wildly cool productions within the games and then celebrate those fans. And, of course, there are fans manipulating properties such as original soundtracks to create new music as an homage to the original score.There is a wide spectrum of what fans want to do to express their fandom with video games, in other words, and also a spectrum of ways publishers respond to these dedicated fans. The original Doom, for instance, was created nearly three decades ago, but an active modding community has kept the game relevant by building on that original work. In the case of System Shock 2, however, it turns out the game originally released in 1999 is essentially only playable on modern machines due to the dedication of one single mystery fan.

After developer Looking Glass Studios closed in 2000, the game wound up in ownership limbo. For a time, it languished without updates. Getting it to run on more modern machines increasingly became a massive hassle. Then, in 2012, a fan released an unofficial update that took aim at those issues with almost cyborg-like laser precision. To this day, nobody knows the identity of the fan who released this update.The mystery savior of System Shock 2 goes by the online handle “Le Corbeau.” In 2012, according to a feature over at Rock Paper Shotgun, they first posted their revolutionary patch to the game, titled “NewDark,” on a French Thief fan forum. Nobody’s entirely sure how this fan pulled off an update of this magnitude, but it likely involved building upon an incomplete version of the game’s source code that leaked in 2010.
The effect of the patch was that people could actually play the game again. Strangely, at no point has Le Corbeau sought any credit for his or her work. Nobody to date knows who this person is. But, because of their dedication and, my assumption, fandom, System Shock 2 is not only still relevant, but now on sale on Steam once more. That's because Nightdive Studios got the rights to System Shock 2 and promptly inserted Le Corbeau's patch into a re-release. Far from being upset about this, Le Corbeau has continued to patch the game.Nightdive even tried to get the modder involved, but to no avail.
Nightdive, having found System Shock 2's actual source code in Looking Glass founder Paul Neurath’s closet, is now making its own improvements to System Shock 2, as well as a remake of the first System Shock and an all-new System Shock game. Despite all this, the studio—like perplexed but grateful fans—has no idea who Le Corbeau actually is. CEO Stephen Kick told RPS that he’s tried to reach out in hopes of collaborating over the years, but hasn’t had any success yet. “They have done an amazing job, but at some point those efforts will collide with our own as we wish to improve the original title,” said Kick.
If that last bit in some way signals some animosity towards the modder on the part of Nightdive, this story is going to have a massively infuriating ending. Because the fact is that Le Cordeau's efforts directly kept System Shock 2 relevant and available for fans to enjoy, which in turn kept the market open and ready to accept re-releases of the game and new iterations of it.Regardless, sure, let game companies claim that fans being fans is some threat to their business if they like, so long as everyone realizes how silly that is.

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posted at: 12:00am on 17-Aug-2019
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Kenyan Government Risks Squandering The Long-Term Potential Of Mobile Transactions In The Hope Of A Little Extra Tax Revenue

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Back in October last year, Techdirt wrote about some unfortunate developments taking place in the African digital world. Governments across the continent are bringing in levies and taxes on Internet use, making it more expensive and thus harder for ordinary people to access the Internet at a time when the digital ecosystem in Africa is starting to take off in a big way. In February of this year, we reported on some evidence that the social media tax in Uganda was indeed causing fewer people there to use the Internet, and for the total value of mobile transactions to drop. Quartz Africa has a post about a new report from Brookings on the steep rise in taxes on mobiles and data in Kenya, and the harms it is likely to cause. Here's how things have gone from bad to worse:

In June 2009, the Kenyan government, recognizing the importance of enhancing access to mobile telephony, exempted mobile handsets from the VAT. This move increased the affordability of the handsets and made possible the more than 200 percent increase in handset purchases and a 50 percent to 70 percent increase in penetration rates (Strusani and Solomon, 2011). In turn, the use of mobile phones and related services such as mobile money deepened, and Kenya's total mobile subscribers almost doubled from 17.4 million in June 2009 to 29.8 million by March 2013. Then, the VAT Act 2013 paved the way for the taxation of previously exempted goods such as mobile phones, computer hardware, and software. Now, mobile phone users in Kenya had to pay a 16 percent VAT [Value-Added Tax] on the purchase of a mobile handset in addition to the 10 percent excise tax on airtime, which had been introduced earlier in financial year (FY) 2002/03.Further, in FY 2013/14, the government introduced an excise tax on retail financial transactions at a rate of 10 percent. The Finance Act 2018 then increased the excise tax on money transfer services by banks from 10 percent to 20 percent, on telephone services (airtime) from 10 percent to 15 percent, and introduced a 15 percent excise tax on internet data services and fixed line telephone services.
The report notes the many benefits of promoting mobile payments -- things like serving as an economic driver, and encouraging savings and credit. Particularly important for developing countries is the how mobile-based services increase financial inclusion, providing access to banking for even the poorest sectors of society, which can help to reduce overall levels of poverty.The authors of the study point out that the tendency of taxes to operate on a Laffer curve means that as rates increase, tax revenue from mobiles and data use may decline at some point, making such moves self-defeating. Moreover, if people start to turn back to cash to avoid increased costs of mobile payments, the benefits of digital transactions are lost, including the ability for governments to track and tax transactions more easily, leading to further revenue losses. The report concludes:
The tax policy and design of taxes on retail electronic transactions as well as bank transactions has the potential to reverse the gains that technology has pushed Kenya to the frontier of electronic payments and financial inclusion and back to cash preference and financial exclusion for low-income earners.
The same applies to other African nations that think taxing mobile services is an easy way to raise a little extra revenue. As this new report emphasizes, they may find that that they inflict considerable harm on their digital economies for very little financial benefit.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 16-Aug-2019
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Nintendo Hates You: Company DMCAs Over 100 Videos Celebrating Nintendo Game Music

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Our posts on famed gaming giant Nintendo will likely give you the impression that the company has a very strange distaste for its own fans. Your brain will probably try to convince you that this doesn't make any sense, since Nintendo fans are what makes Nintendo money. Your brain is wrong. Nintendo has demonstrated over and over again that if forced to choose between maximum control over its intellectual property and allowing fans to do fan-things, it will choose control every single time.YouTube in particular tends to find itself in Nintendo's crosshairs, what with the site being the natural place for fans of Nintendo to share Nintendo-y things with other fans. It's worth noting again that, on matters of copyright at least, there's really no reason why Nintendo must issue takedowns for anything that even barely could be seen as infringing on its IP. Such is the case with the recent spate of takedowns the company issued against a YouTube channel which had the singular purpose of celebrating Nintendo game music.

“Game over,” the YouTube channel GilvaSunner, which has over 300,000 subscribers, wrote on Twitter yesterday. They also shared a screenshot of an email inbox displaying dozens of copyright claims against videos of music ranging from The Legend of Zelda: Ocarina of Time’s “Hyrule Field” to “Mega Man 2 Medley” from Super Smash Bros. 3DS.This morning, GilvaSunner shared another bevy of copyright claims, this time against videos featuring music from Fire Emblem: Awakening. “115 videos in total blocked so far,” GilvaSunner wrote. “They started manually with the most viewed content on the channel, and are now going through the playlists one by one I guess.”
Here's where the lack of sense in these protectionist actions really shines through. Nintendo makes money by having dedicated fans purchase Nintendo consoles and games for its systems. Fans become dedicated through their love of a game and the nostalgia they might have for a particular property. The soundtracks of games can play a huge part in that, of course. In other words, YouTube posts of Nintendo music, while technically infringing, mostly function to supercharge the fandom of Nintendo properties.Which is why so many gaming companies do nothing to impede this expression of fandom. And Nintendo doesn't have to either. It can, certainly, and it has, but it doesn't have to. It only does so because the company appears to view protectionism as some kind of default setting.Why? Because, while fans love Nintendo, Nintendo doesn't share that same love for its fans.

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posted at: 12:00am on 16-Aug-2019
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You're Not Helping: ESPN Delays 'Apex Legends' Broadcast After 2 Mass Shootings

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Of all the battles we wage here, my personal frustration probably peaks on the topic of video games and real world violence. The amount of calories spent even having this discussion should go down as some kind of complete human failure. Study after study, never mind the input from actual law enforcement professionals, has demonstrated that the political talking points on violent games are complete bunk. I used to be fond of saying that the science on this topic was unsettled. At this point, the science is quite clear.Which means what we really need for that science to take hold with the public and end this stupid debate is to stop signaling that the debate isn't over. But when ESPN, with all of its popularity, decides to suspend a broadcast for an Apex Legends tournament because of the recent mass shootings, it's doing the opposite.

This weekend’s planned airing of the EXP Apex Legends Invitational at X Games tournament on ESPN2 has been postponed by the network, “out of respect for the victims and all those impacted in the immediate aftermath of the shootings.”The broadcast is meant to show highlights from the Apex Legends tournament that was held at X Games in Minneapolis, Minnesota, on August 2. Originally scheduled to air on ESPN2 this weekend, the show has been postponed for two months.
On the one hand, look, sure this sounds fine. And it's almost certain that somebody somewhere would have raised hell at ESPN about putting on a video game tournament that includes violent gaming shortly after a tragedy. But the job of society is to tell those people that they're crazy, not bend the knee to them. One single movie announced it was pulling its release following the shootings and this too is absolutely not helping. Plenty other upcoming releases that feature violent imagery are going off as planned. No word of TV networks delaying the release of any episodes over concerns that they contain violence. Not a single book release has been rescheduled, music video delayed, nor comic book axed over any of this. So why is this different?Because video games. The scapegoating has gone on for so long that it's become etched into our psyches and only a conscious uncoupling is going to change that.

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posted at: 12:00am on 15-Aug-2019
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Giant Copyright Troll, Malibu Media, Sued By Investors

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We've written a bunch of stories about Malibu Media, a copyright trolling operation. The company's founders, Colette Pelissier and Brigham Feld, like to claim that they're purveyors of "classy" pornography under the X-Art brand, but their business seems almost entirely focused on trolling practices. And its embrace of copyright trolling has resulted in some significant problems for the company over the years, as judges have very much caught on to the company's long history of sketchy practices.Apparently those sketchy practices may go beyond its copyright trolling, as two of Malibu Media's investors are now suing the company, claiming that they lent the company money when it was short on cash, in exchange for 50% of its "net recovery" from the trolling operations, and a "50% interest" in the copyright of the porn X-Art created. So, how'd that work out?

In 2018 alone, continues the complaint, Malibu Media's litigation stampede generated over $2.8 million.But the plaintiffs say they haven't seen any of the money and can't get an accounting. They further allege, "On information and belief, Defendants are shuttling assets and interests out of Malibu Media and into more obscure entities, including the shell entity holding companies: Click Here, Colette Holdings, Colette Properties, Colette Production, Inc., Colette Productions LLC, and/or Zo Digital."
Ah, shell companies and moving cash around. It appears that Malibu Media took all the wrong lessons from Prenda Law. Perhaps they'll find themselves in the same place in the end.

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posted at: 12:00am on 15-Aug-2019
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Brewery In Wales Changes Name Of 2 Beers After Fight With Hugo Boss

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For some time now we've discussed in a series of posts the trademark fallout that has hit the craft brewing industry. With the explosion of this industry throughout the world, the once-congenial attitude breweries had towards intellectual property concerns has slipped away, replaced by both aggression when it comes to protecting IP and the threat of aggressive action from those outside the industry, given the amount of money being made in brewing. It's been sad to see and it has frankly led to some of the silliest IP disputes I've ever seen.As in any other industry, however, the truly frustrating stories when it comes to trademark disputes in the brewing business involve those outside the industry initiating conflict where it doesn't belong. The most recent example of this is Boss Brewing having to change the name of a couple of its beers after being bullied by Hugo Boss, the upscale clothier.

As reported by Wales Online, Boss Brewing, which was founded in 2014, received a cease and desist letter from high-end fashion retailer Hugo Boss after applying to trademark its brand.According to records published by the Intellectual Property Office, two Boss Brewing trademarks were taken out in October 2018 in a process which usually costs around £300. However, the brewer was instead required to pay almost £10,000 in legal fees during a four-month battle.Co-owner of the business, Sarah John, told Wales Online that Hugo Boss was “adamant they wanted to stop the name” from being trademarked. The company told John that it owned the Boss trademark in most of the world, but that it did not own rights to it in relation to alcohol.
Again, trademark law is typically designed to keep the public from being confused as to the source of a good or service. The opposition and cease and desist notice from Hugo Boss apparently views the public as being unable to distinguish a maker of beer and a maker of clothing. Where perhaps I could see Hugo Boss having some issue with any apparel merchandise the brewer might have with the "Boss" name -- and even that would be a stretch -- taking issue with the name of the brewery or its beers seems remarkably silly.But trademark bullying works, especially when the bully has much more money than its victim.
A compromise was eventually reached, whereby Boss Brewing was required to change the name of two of its beers. Boss Black, a 5% ABV stout, has become Boss Brewing Black, and Boss Boss, a 7.4% ABV double IPA, is now Boss Bossy.The brewer is also forbidden from selling its branded clothing, which include hats and t-shirts.John added: “We’ve got pallet loads of Boss Black which we are going to have to go through and change the labels of, which will be of great expense and time for a small brewery. This has been a horrible experience, and so stressful. We have worked so hard to create all of this and what should have been a simple process ended up making us question whether everything was going to be OK going forward in the future and whether we were going to lose everything."
And for what? To ensure the public isn't confused with the famous Hugo Boss line of clothing and a tiny Welsh brewery? It's enough to make one need a drink.

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posted at: 12:00am on 14-Aug-2019
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Top University Of California Scientists Tell Elsevier They'll No Longer Work On Elsevier Journals

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Last week we highlighted the ongoing dispute between academic publishing giant Elsevier and the University of California (UC) system. Earlier this year, UC cancelled its contract with Elsevier, after the publishing giant -- which gets nearly all of its content and labor for free, but charges insane prices for what is often publicly funded research -- refused to lower prices or to work with the UC system on moving to an open access approach. Last week, we covered how Elsevier had emailed a bunch of UC folks with what appeared to be outright lies about the status of negotiations between the two organizations, and UC hit back with some facts to debunk Elsevier.Perhaps Elsevier is getting antsy because a bunch of UC scientists have sent an open letter to Elsevier, saying they will no longer do editorial work for any Elsevier publications until this dispute gets worked out.

Among the signatories of the letter are Jennifer Doudna, co-inventor of the CRISPR-Cas9 gene editing technology, and Elizabeth Backburn, co-recipient of the 2009 Nobel Prize in Physiology or Medicine.
Once again, we're left wondering what value Elsevier even provides to the overall ecosystem any more. It doesn't fund the research. It hands off most reviewing and editing tasks to other academics. And yet, it gets to (a) keep the copyright on the research and (b) charge absolutely ridiculous sums to universities which feel they "must" have access to these publications. And, this is in the age of the internet when "publishing" is literally a button on a webpage. Why does Elsevier even still exist?

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DC Opposes Trademark Application For 'Algorithmic Justice League' For Some Reason

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DC Comics, the company behind some of our most beloved superheroes, has built a reputation for itself for playing the supervillain when it comes to intellectual property disputes. Chiefly at issue tends to be trademark law, which DC views as some kind of overarching right for it to not allow any other entity to hold a trademark that even remotely overlaps with its own established marks. DC has taken this to absurd levels, opposing trademark applications that couldn't possibly be confused with its own properties, even as many of its marks are very, very well known.This continues to the present. Most recently, DC has decided to oppose the trademark application for a group founded by MIT's Joy Buolamwini to spotlight the negative consequences of certain technologies, which she dubbed The Algorithmic Justice League.

Buolamwini filed in 2017 for a US trademark on Algorithmic Justice League, saying she had used the name for more than a year on projects that “promote awareness of and combat bias in algorithms as used in artificial intelligence.” In June, DC lawyers filed to oppose the registration.DC claims consumers may confuse the group’s work on AI algorithms with its superhero collective Justice League, founded in 1960 by Wonder Woman and six others. “Such false assumptions will cause injury and harm,” the company’s filing says. It cites 10 trademarks related to the Justice League that mostly predate Buolamwini’s application, covering such uses as comic books, movies, mouse pads, and "adhesive plastic bandages for skin wounds."
DC's own citations point to the absurdity in all of this. Namely that none of the marks held by DC remotely bleed into the work that Buolamwini is doing. The closest you could get would be the view that some members of the public might see her as a superhero in her own right, attempting to head off the dangers of AI and algorithms. Other than that, it's difficult to see where the public is going to be confused between superheroes and this kind of technological research.DC, as it typically does, goes to great lengths to point out that its marks are super-famous and therefore deserving of expanded protection.
Fictional beings capable of flight or freakish strength might seem hard to confuse with the real-world work of Buolamwini—whose abilities appear to be 100 percent human. To draw attention to the potential harms of AI technology she has written code, published academic research, and presented her findings in a TED talk, congressional testimony, and spoken word poetry.Yet DC is a powerful foe, standing on reasonable legal ground. “The more famous the mark, the broader the protection,” says Alan Fisch, an intellectual property lawyer with the firm Fisch Sigler.
Labeling this as reasonable is probably a stretch. Famous or not, there are limits to the expanded protections available to well known trademarks. And, I would argue, DC's Justice League marks are certainly different than its truly famous marks. Had, for instance, this group been called the Algorithmic Supermen, we might be having a slightly different conversation. But the deviation in the markets and the name chosen don't lend themselves to claims of potential confusion.But DC's going to DC, I suppose. It would just be nice to see the company play superhero instead of villain for once.

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posted at: 12:00am on 13-Aug-2019
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If You Lament The State Of Politics Today, Lament The Loss Of Aereo

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Disclaimer: I did a teeny bit of legal work on a teeny part of Aereo's defense against the litigation onslaught seeking to obliterate it. But that's not why I think the Supreme Court's decision enabling that obliteration was terrible. On the contrary, it's why I wanted to work on the defense at all, because it was always apparent that trying to use copyright to crush Aereo was a terrible idea that would have terrible consequences. And time has, of course, born this prediction out.It had never made sense why all these TV stations would be suing Aereo in the first place. After all, isn't the thing that TV stations always want a larger viewership? With a larger viewership they can charge more for ads and make more money. So a service that helps them get that larger viewership (and at no cost to themselves) seems like something they should actually be glad to have. In any case, it was certainly quite odd to see them resent something that helped connect them with bigger audiences beyond what their broadcast signal could manage.And it made even less sense for a public television station like WNET to be part of any of these lawsuits. Commercial profit was never supposed to be its goal. Instead, pledge drive after pledge drive has always begged the public for the funds necessary to show its programming. Yet there it was, now trying to eradicate a service that helped people actually watch that programming. Which necessarily prompts the question of why anyone should ever bother to give money to WNET ever again if it was so bound and determined to limit the number of people who could benefit from it.Anyway, while the fight against Aereo made no sense, and the US Supreme Court decision killing it made even less, the result is that today we live in a world without it, where the reach and influence of local TV stations has effectively been damned to the geographical limits of their signal strength. And this pointless and artificial limitation has had a cost.Because think about what has been happening in recent elections: results end up hyper-localized, with impenetrable divisions between red and blue states, urban and rural regions, large markets and small, etc. At least in the story of the country mouse and city mouse they both got to visit each other and learn what each other's lives were like. But thanks to the Supreme Court, now it is so much harder for Americans everywhere to learn about what life is like outside the areas where they live.Aereo helped build connections between these places by overcoming the barriers imposed by distance. Instead of people only being able to see the broadcasts they could receive on their own antennas, it gave them a window into other communities by allowing them to essentially rent antennas in these other places and experience the broadcasts aimed for people there. Certainly if they'd rented an entire house in these other places there would have been no issue with them using its antenna to watch these broadcasts. So it hardly follows that it should be illegal if they simply saved the enormous expense of moving to that other place and instead only rented the antenna. (Which, despite the Supreme Court's technical misunderstanding about what Aereo did, is exactly what Aereo - and, for the past year or so, now Locast - actually did.)Especially not when, as described above, it would have been good for those stations. And especially not when it also would have been good for the nation. It does us no good to remain little regional enclaves unable to find common ground between each other. Sharing in each other's broadcast media would go a long way to bridging those geographically-enforced cultural gaps. Indeed, it would seem to vindicate the very goals of copyright, to promote the progress of arts and sciences, to ensure that local insight could be efficiently exchanged among these regions. Instead, however, the Supreme Court, in its decision to contort copyright law to effectively ban Aereo, doubled-down on the physical restrictions curtailing that exchange with artificial legal barriers that can only serve to enforce the effects of that distance upon the national electorate. And our democracy has been paying the price for this decision ever since.Perhaps things can be different with Locast. While too new to have been able to have had as much impact on national political culture as a mature service would have had by now, since last year it has tried to thread the confusing needle the Supreme Court set out for these sorts of antenna-rental services. As the courts now stand to review the legal questions they raise again, one can only hope the courts better understand this time around the public interest in knowledge exchange that's at stake, which copyright law is supposed to advance, not smother.

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This Week In Techdirt History: August 4th - 10th

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Five Years AgoThis week in 2014, while President Obama was defending the CIA's increasingly exposed use of torture on the basis that they had a "tough job", James Clapper was defending the redactions in the torture report and calling them "minimal" — but Senators were calling it "incomprehensible", because even 15% redaction can hide all the critical details.Meanwhile, comic artist Randy Queen was giving a crash course in DMCA abuse, using takedowns to censor blogs that were critical of his work, then claiming that posts criticizing this were defamatory, then doubling down yet again by trying to DMCA the posts about his DMCA abuse.Ten Years AgoThis week in 2009, a Washington Post writer started an online journalism dust-up when he complained about Gawker "ripping off" his reporting with a blog post discussing and heavily linking to one of his articles. Other bloggers quickly pointed out that, in fact, the mainstream press "rips off" bloggers constantly, spurring more people to dig in and illustrate the entitlement mentality driving big media's complaints about blogs, and finally the suggestion that perhaps they should run their own blogs about their own reporting if they are so upset. Amidst this, the Associated Press was still digging in on their plan to DRM the news, with their text licensing calculator that would gladly charge you for any text whether it came from the AP or not, and ironically leveraging Creative Commons licensing language for their ill-fated DRM tech. We suggested the agency would be better off finding other services to offer newspapers, while competitor Reuters stepped up defended linking, excerpting and sharing.Also this week in 2009, we published a long rebuttal to the RIAA's factually-challenged boasts about the Joel Tenenbaum verdict.Fifteen Years AgoThis week in 2004, long before Joel Tenenbaum, we were wondering why the RIAA gets to hold parents responsible for their kids' downloading. The US was using trade negotiations to export the DMCA and software patents to Australia, as it likes to do, Hollywood succeeded in driving a DVD backup software company out of business, and for no particular reason the FCC happily voted that VoIP systems should be required to have wiretap backdoors for law enforcement — a fitting week for Tim Wu to write a post exploring how different regulatory schemes create a "copyright gap" that impacts the telephony and content industries in vastly different ways. We also got an important appeals court ruling that found websites devoted to criticizing companies are not commercial speech and thus do not constitute trademark infringement.

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posted at: 12:00am on 11-Aug-2019
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Unsealed Warrants Show SFPD Officer Told Judges He Was Targeting A Journalist, But Judges Approved Them Anyway

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Three of the five warrants the San Francisco Police Department obtained to search journalist/stringer Bryan Carmody's home, office, and phones have been tossed by the judges who issued them.The initial warrant, issued in February by Judge Rochelle East was the first be declared invalid. Judge East said the warrant application was misleading, omitting information that would have made it clear Carmody was a journalist and protected by the state's shield law. This warrant -- seeking access to phone call and text message records -- has been tossed. Since everything else in the Carmody investigation stems from this illegal search, the rest of the warrants are destined for the dustbin.Judge East's findings have led to two more judges tossing warrants they issued. It also has led -- at least in Judge Victor Hwang's case -- to the judge possibly reading the warrant for the first time. This statement from David Snyder of the First Amendment Coalition says the warrant Judge Hwang tossed contained information about Carmody that made it clear the SFPD was targeting a journalist.

The search warrant application unsealed today shows, beyond any reasonable doubt, that the San Francisco Police Department knew Bryan Carmody is a journalist before they sought a search warrant for his office — and that they provided ample evidence of that fact to the San Francisco judge that authorized the unlawful search of his office.
The warrant [PDF] contains passages that indicate Carmody is in the journalism business. SFPD Sgt. Joseph Obidi dances around it a bit but ultimately delivers enough information that an attentive judge would have rejected this attempt to bypass the state's shield law.The swearing officer notes that Carmody "is not currently employed at any of the news organizations" that published the leaked death report. But there are other passages in the affidavit's narrative that point towards Carmody's occupation.
Sgt. Watts asked Mr. Carmody if the [officers] that [leaked a copy of a death report to him] profited financially, he stated no. Sgt. Watts asked him if he profited financially, he responded by saying that he profits financially from every story he covers.
And, more explicitly:
It is my belief that Mr. Carmody still has the original copy of the police report in order to further his financial profits by selling it to other interested parties or news outlets at the time. I also believe Mr. Carmody kept the original copy the report as part of his portfolio/records of news stories he has participated in to keep track of his achievements. [...] I believe it is reasonable that someone who makes a career out of producing/selling hot news stories would keep a copy of that as part of his resume.
The affidavit also makes reference to the warrant obtained from another judge to search Carmody's residence. If so, Judge Gail Dekreon likely saw the same narrative and assertions, and yet still gave the SFPD permission to search a journalist's home. As Synder points out, this is unacceptable.
[T]hese statements represent a massive failure by both SFPD and the judiciary to recognize and safeguard the Constitutionally protected rights of Bryan Carmody and, by extension all journalists.
All the warrants will ultimately be tossed because every one of them is predicated on an invalid warrant and an illegal search of Carmody's phone records. But these should have been rejected by the judges who initially reviewed them, shutting down the SFPD's attempt to circumvent the state's shield law. The judicial branch's powers aren't just curative or restorative. They're also supposed to be preventative. Here they failed, leading to multiple rights violations that never should have been allowed to happen.

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posted at: 12:01am on 10-Aug-2019
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Comcast Wireless Joins Verizon In Charging You More For HD Video

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One of the more subtle assaults on net neutrality has been the slow but steady introduction of arbitrary, often unnecessary restrictions mobile carriers will then charge you to get around. Sprint, for example, has toyed with plans that throttle all video, music, and games unless you pay extra. Verizon has also banned 4K video from its network unless you pay more for 5G (which isn't widely available). The company also now throttles all video on its "unlimited" data plans, charging consumers even more if they want to view content in HD as the originating service intended.Comcast has now followed Verizon's lead, and its new wireless service will also now ban HD videoon its unlimited data plans unless you pony up an adidtional $20 per month. The company technically began throttling all video to 480p on its wireless network a week ago, but only just last week announced that users would now be charged more if they actually wanted to watch video in HD:

"Xfinity Mobile's unlimited data plan costs $45 per line per month, but video streams are generally limited to 480p resolution. Comcast yesterday announced a new $20-per-month HD Pass "for an upgrade to HD video resolution on Unlimited lines (720p on phone and 1080p on tablets)." That raises the monthly price to $65."
The problem with these efforts begins with the fact that Americans already pay some of the highest prices for 4G mobile data in the developed world. In exchange, they get mobile 4G broadband service that ranks somewhere around 30th worldwide in terms of speed. Studies also show that US wireless provider video quality is similarly some of the worst in the developed world due to many of the nickel-and-diming, erroneous restrictions being placed on mobile lines.The other problem with these kinds of plans is one of precedent. Once you open the door to letting giant telecom companies impose arbitrary barriers you'll then have to pay extra to get around, you open the door to all manner of additional, problematic efforts (especially with the recent neutering of FCC authority and net neutrality). Want your games to work as intended? Pay us more. Want your music streaming to be free of arbitrary restrictions? Pay us more. Want to use Netflix instead of a telecom's TV services? Pay us more.One way to help minimize these issues is to stop mindlessly signing off on competition-eroding megamergers that only act to reduce any incentive to genuinely compete on price. Instead of direct competition, wireless carriers adore saddling their plans with so many bizarre restrictions and caveats that direct pricing comparisons are often impossible for the average user. Frightened by what they don't understand, these users are then incentivized to buy the most expensive plan in order to avoid overage fees or other restrictions. It's a pricing funnel designed with one thing in mind: upselling you to a more expensive plan.Another answer to this growing problem is for carriers to finally stop marketing clearly limited plans as "unlimited." For fifteen years or so US mobile carriers have marketed "unlimited" data plans with an ocean of very real, very confusing limits. Comcast's unlimited data plan, for example, throttles users back to DSL speeds (1.5Mbps download/750kbps upload) after 20 gigabytes of monthly use. Despite getting government wrist slaps for the better part of 15 years this practice has only accelerated, the number of caveats have grown, and it's a wonder Americans have any idea what kind of connection they're actually buying.Enter the death of net neutrality rules, which not only prohibited many of the more elaborate, heavy handed nickel-and-diming efforts by mobile carriers, but mandated that wireless carriers be entirely clear about what kind of mobile connection you're buying. Wary of the rules being restored due to the state AG and Mozilla lawsuit against the FCC, many mobile carriers are trying to behave. But should the states and Mozilla lose their bid to restore the rules, this entire problem is going to get exponentially worse in relatively short order.

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posted at: 12:01am on 10-Aug-2019
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Oops: Japan Anti-Piracy Proposals Probably Violate Its Constitution

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For over a year now, we've been discussing a worrying trend in Japan, where the government is looking to severely ramp up its anti-piracy efforts. The worry lies in the implications of these various proposed programs, including the censorship of internet sites supposedly used for piracy, the criminalization of pirating content, and how all of this is going to impact the public. One of the largest barriers to doing any of these expansions to copyright law is the Japanese constitution and legislation, which are fairly restrictive on matters of both censorship and the invasion of privacy. How the government thought it was going to route around those provisions is anyone's guess.But it seems there is confidence that it can do so, as every new proposal coming out looks to in some way violate Japan's constitution. The latest involves putting a system in place that would delivery popup warnings to anyone visiting a site that is deemed to be a "pirate site."

Additional proposals suggested that Internet users could be confronted with popup warnings when they visit pirate sites, either as an alternative to blocking, a deterrent, or to help people differentiate them from legal offerings. However, that plan is being viewed as a potential invasion of privacy too. A report compiled this week by an expert panel with the Ministry of Internal Affairs and Communications has concluded that such popup warnings could infringe citizens’ right to secrecy of communications.Asahi reports that in order to make this kind of system work, Internet service providers would first need to obtain consent from their subscribers so that monitoring their attempts to access certain sites would remain legal. The publication says that after the panel sought opinions from the public on the proposal, it was “bombarded by emails” sent by people calling for the plan to be rejected on privacy grounds.
That this does represent an invasion of privacy not allowed by Japanese law and the constitution is a fairly straight forward conclusion. Is it an invasion of privacy for the government to monitor the internet usage of its citizens? Yes, as Japan's legal system has already concluded. Can the government serve popup warnings to citizens for visiting certain websites without monitoring what sites they visit? No, it obviously cannot. Where the ambiguity is in any of this is beyond me.And so it seems the government is pushing ISPs to be their privacy-invading intermediaries.
Nevertheless, some ISPs have agreed to begin trialing a popup warning system during the fall, in order to assess its effectiveness. That will mean them first having to explain to their users that they wish to monitor their online behavior and then obtain legal permission to do so.Given a choice between being monitored by their ISP or not, it seems unlikely that many Internet users – if they actually understand the proposition – will willingly have someone watch over their communications.
Gee, let's see. So, the only way this all complies with Japanese law is if the ISPs do the monitoring of sites to serve popup warnings about piracy, but to do so requires the expressed opt-in permission of the very people who are supposedly visiting piracy sites? Dear Mr. Pirate: would you consent to having us monitor your internet usage and warn you when you're doing pirate-y things?This is obviously absurd and I expect the plan to be rejected. It would be much better for the entertainment industries pushing these proposals to be transparent in what they really want: a change to the Japanese constitution and law to allow the government and/or private interests to invade the privacy of all citizens, just because they think it will allow them to make a bit more coin without having to adapt to the modern digital world. Although, put that way, it's hard to see how that flies with the Japanese public either.

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posted at: 12:00am on 09-Aug-2019
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Consumer Reports Finds Numerous Home Routers Lack Even Basic Security Protections

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For years now many hardware vendors have failed utterly to implement even basic security protections on most consumer-grade routers. D-Link, for example, just settled with the FTC after being sued for shipping routers with numerous vulnerabilities and default username/password combinations, despite advertising its products as "easy to secure" and replete with "advanced network security." Asus was similarly dinged by the FTC for shipping gear with numerous flaws and easily-guessed default username and password combinations.As such, it's not too surprising to see a new Consumer Reports study that found that a large number of mainstream residential routers lack even rudimentary security protections. 11 of the 26 major router brands examined by the organization came with flimsy password protection. 20 of the routers let users only change the password, but not the username of web-based router management clients. 20 of the routers also failed to protect users from repeated failed password login attempts, now commonplace on most apps, phones, and other services.Two thirds of the routers tested came with UDP enabled by default:

"Unless you have a device or some software that specifically asks for it, it's smart to turn this off, because UPnP has a history of serious security vulnerabilities. But our recent survey found that most people who buy a router don't adjust the settings, and even fewer may think to turn off UPnP."
Many attacks are made easier thanks to Luddite users. But there's a universe of steps these vendors could be taking that would make a dramatic impact, such as requiring that users change the default username and password before they're able to actually use the router. But, just like the security and privacy apathy seen in the IOT space, many vendors don't want to spend the money necessary to fix older gear, or even implement meaningful improvements in new kit. As a result, much of this gear is easily hijacked and integrated into botnets within minutes of being connected to the internet. Hardware vendors don't care as they've already made a sale, and consumers often lack the technical know-how to even know they've been compromised.As Consumer Reports notes, given the router's integral role in everything done in your home, it remains fairly dumbfounding that we're still collectively begging router manufacturers to give a damn:
"Routers are a critical part of our homes, says Robert Richter, who oversees security and privacy testing for Consumer Reports. They are the conduit through which all of your data travels, so it's crucial that we look closely at how they handle security. We hope both consumers and the industry pay close attention to our findings."
Of course if you've checked in with the dumpster fire that is security and privacy standards in the IOT space, shoddy routers are just one small part of a much broader problem. To that end Consumer Reports has done some really stellar work trying to create an open standards system that can be used to include security and privacy vulnerabilities in product reviews, helping to steer consumers away from buying gear from vendors who pretty clearly couldn't give a damn about consumer security and privacy.

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Microsoft Nabs Russian Hackers Exploiting Flimsy IOT Security

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Week after week we've documented how internet of things devices are being built with both privacy and security as a distant afterthought, resulting in everything from your television to your refrigerator creating both new attack vectors and wonderful new surveillance opportunities for hackers and state actors. And CIA leaks have indeed confirmed that "smart" TVs and other devices with embedded microphones make for wonderful surveillance tools.So it's not too surprising to see Microsoft's Security Response Center proclaim this week that it has caught Russian hacking group Strontium" (aka Fancy Bear and APT28) using poorly secured printers, VoIP phones, and video decoders to gain access to sensitive networks. As is usually the case, Microsoft found that once these devices' security was bypassed (often an easy feat given there's sometimes little to no security measures in place), they were able to use them as a beach head to gain broader access to the networks they were connected to:

"After gaining access to each of the IoT devices, the actor ran tcpdump to sniff network traffic on local subnets. They were also seen enumerating administrative groups to attempt further exploitation. As the actor moved from one device to another, they would drop a simple shell script to establish persistence on the network which allowed extended access to continue hunting. Analysis of network traffic showed the devices were also communicating with an external command and control (C2) server."
In at least two instances, the hacks were only made possible thanks to hardware shipping with default username and password logins, something that has frequently plagued residential routers as well. Just as unsurprising as the hack was Microsoft's warning that this is a problem that's only going to get worse, regardless of the government or organization pulling the strings:
"While much of the industry focuses on the threats of hardware implants, we can see in this example that adversaries are happy to exploit simpler configuration and security issues to achieve their objectives, the report noted. These simple attacks taking advantage of weak device management are likely to expand as more IoT devices are deployed in corporate environments."
As security researchers like Bruce Schneier have long noted, there's some severe market failure driving this dysfunction. Companies don't want to spend money on security and privacy standards as they connect everything under the sun to the internet, and by the time vulnerabilities are discovered, they're off to selling the next big thing. Because the devices often don't provide insight into what they're doing, consumers routinely have no idea what the device is even doing on the network. And by the time vulnerabilities are addressed, consumers are off to buy the next big thing (with equally terrible security holes).Year after year after year, we're connecting millions upon millions of devices to home and business networks with paper-mache grade security. And while there's some fleeting efforts to address the problem (like incorporating flaws into product reviews), it's still not something folks are taking seriously enough. And while such proclamations are often dismissed as hyperbole, it's something folks like Schneier predict isn't likely to change until these vulnerabilities result in some notable human casualties.

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posted at: 12:00am on 08-Aug-2019
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Another Day, Another Company Leaving Sensitive User Data Exposed Publicly On The Amazon Cloud

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What is it about companies leaving consumer data publicly exposed on an Amazon cloud server? Verizon made headlines after one of its customer service vendors left the personal data of around 6 million consumers just sitting on an Amazon server without adequate password protection. A GOP data analytics firm was also recently soundly ridiculed after it left the personal data of around 198 million citizens (read: most of you) similarly just sitting on an Amazon server without protection. Time Warner Cable also recently left 4 million user records sitting in an openly-accessible Amazon bucket.You'd think that after all of this press attention fixated on a fairly basic (but massive) screw up, that companies would stop doing this. But you'd be wrong.The latest company to fail at fundamental security practices is California's Bank of Cardiff, which managed to leave millions of phone recordings made by employees -- you guessed it -- in an unsecured Amazon cloud bucket open wide to the general internet. Many of the phone recordings exposed include bank employees talking with customers about sensitive financial transactions:

"Many of the calls appear to be Bank of Cardiff employees phoning up individuals the bank has discussed loans with, or attempting to offer them one. One call includes a potential customer discussing their plans for obtaining financing either from Bank of Cardiff or a competitor. In another, an employee contacts a company focused on industrial equipment; Motherboard identified the company because of its hold music which includes the firm's website. The company did not respond to a request for comment. In a third call, an employee contacted a company about a business loan."
Yeah, whoops-a-daisy. The practice by lazy and/or incompetent companies has basically made a career for folks like UpGuard cyber risk analyst Chris Vickery, who has spent the better part of the last few years searching and exposing companies that can't be bothered to secure their cloud accounts. But again, it's absolutely incredible given the media exposure of this basic gaffe that every company on the planet hasn't done an audit to make sure their brand isn't the next one in lights for security incompetence.Bank of Cardiff has yet to issue a public statement on the exposure, but it did finally lock down access to the data trove once journalists and security researchers (once again) did their jobs for them.

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posted at: 12:00am on 08-Aug-2019
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Have You Heard? If You Spread 'Hurtful' Rumors In China, You'll Be Thrown Off The Internet For Years

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The Chinese authorities really don't like rumors being spread. Back in 2012, Techdirt reported on a "five strikes and you're out" plan for throwing rumormongers off social media for 48 hours. That obviously didn't work too well, since in 2013 a tougher line was introduced: three years in prison if you get 500 retweets of a "hurtful" rumor. But even that doesn't seem to have achieved its aim, judging by this post on Caixin Live about yet another law aimed at stamping out rumors:

A draft regulation released for public comment on July 22 by the Cyberspace Administration of China proposes restricting the internet access of users and providers of online information services that "fabricate, publish, or spread information that violates public morality, business ethics, or good faith" or deliberately provide technological assistance to those who do so.
Blacklisted individuals would be forbidden from using the Web or online services for three years. They would also be restricted from working in the Internet industry for that period. Depending on "whether the individual rectifies their behavior and prevents their disinformation from spreading further", that term could be reduced, or extended by up to three more years.This isn't the only recent initiative to stamp out those hurtful messages. Last year, a platform called "Piyao" -- which means " to refute a rumor" -- was launched. It is a Web site and mobile app, and designed to spot "untrue rumors" with the help of AI and members of the public, who can report any bad stuff they've come across. According to Reuters, a promotional video released at the launch of the site warned:
Rumours violate individual rights; rumours create social panic; rumours cause fluctuations in the stock markets; rumours impact normal business operations; rumours blatantly attack revolutionary martyrs.
Terrible things, these rumors. Pity they seem a perennial part of the online world -- however much the Chinese authorities might try to eradicate them.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 07-Aug-2019
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AT&T Hopes A Confusing Rebranding Will Help Its Muddled Video Plans Make Sense

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Despite spending more than $150 billion on mergers intended to help it dominate the video space, AT&T's video ambitions are falling flat. The company just posted a loss of more than 778,000 "traditional" video subscribers last quarter (satellite TV, IPTV), but also lost another 168,000 subscribers at its DirecTV Now streaming service. The reason? The company's acquisitions of DirecTV ($67 billion) and Time Warner ($86 billion) saddled it with so much debt, the company was forced to raise rates. This, in turn, helped drive AT&T's customers to the exits.Despite its voracious appetite for M&A, it's not entirely clear the company knows what to do from here. The same week it announced record subscriber losses, AT&T proclaimed it would be engaged in a rebranding that will kill off the DirecTV brand. AT&T's DirecTV Now streaming video service will now be, quite creatively, named just AT&T TV Now:

"AT&T is eliminating the DirecTV Now brand name it uses for its struggling Internet-based TV service. DirecTV Now will become "AT&T TV Now" later this summer, AT&T announced today. DirecTV Now (the future "AT&T TV Now") offers a bundle of linear TV channels, similar to traditional cable or satellite services, and AT&T said its core offering won't be changed."
The problem, as some were quick to point out, is that AT&T, Time Warner, and HBO all now offer video via an immensely confusing array of options. There's HBO Go, HBO's streaming service for those with cable. There's HBO Now, HBO's streaming service for those without cable. There's AT&T's Watch TV, which is a live, discounted bundle of 35 channels. There's also AT&T TV, which is delivered over IPTV. Then there's AT&T TV Now, which is a rebranded version of DirecTV Now, its on demand streaming option. There's also HBO Max, AT&T's new streaming platform slated for next year. Not confusing at all, right?
Both AT&T and Verizon desperately want to topple Google and Facebook in the video advertising space, but there remains little indication that lumbering, government-pampered monopolies have the flexibility to actually accomplish that goal. Verizon's Go90 streaming video service, you'll recall, was supposed to dominate the Millennial video space, but wound up being scrapped after nobody gave much of a damn.It's frankly hard for pampered monopolies to seriously compete because, with the exception of some tepid, non-price competition in wireless, actual hard-nosed competition is alien phrenology to them. As are innovation, disruption, and quick adaptation. Companies like AT&T and Verizon have spent thirty years responding to competition by lobbying government to make life hell for their competitors at every turn. And because giants like AT&T all but own numerous federal and state lawmakers, that's routinely been pretty easy. That's not going to work in a streaming space where actual competition is starting to explode.In a sector where many traditional cable operators have only doubled down on the same dumb behavior that drives cord cutting in the first place, AT&T at least had the courage to offer its own streaming alternative. Many companies are so terrified of accelerating the cord cutting losses to traditional video revenue, they refuse to offering compelling, more flexible, and cheaper alternatives. AT&T deserves credit for taking risk, even if the path forward should have been fairly obvious.That said, it's not entirely clear AT&T knows what it's doing. In addition to a scattered brand presence and endless price hikes, the company seems fixated on turning HBO from a boutique channel filled with popular, higher-quality risk taking, to a an outlet that craps out shorter form content en masse. This shift in focus to quantity over quality isn't likely to help in the way AT&T execs seem to think it will. And while the death of net neutrality and AT&T's domination of broadband will certainly help AT&T tilt the playing field here and there, even that may not be enough to keep AT&T relevant in the streaming wars to come.

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St. Louis County Pays Woman $750,000 After Cops Perform A No-Knock Raid, Kill Her Dog... All Over Unpaid Utility Bills

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Here's where we are in the development of the American police state: no-knock raids over code violations.

Angela Zorich says she remembers the April day in 2014 like it was yesterday.“I saw them and they're just pouring in, they're covered head to toe, they got helmets, they're like military style," said Zorich.Her life forever changed after she says the St. Louis County Police Department’s SWAT team came with a no-knock warrant for an unpaid gas bill."Why is this cop able to call in a SWAT team because I didn't have gas service at my house?" said Zorich.
The taxpayers of St. Louis County are now out $750,000 because the local boys thought the best way to address a "problem property" complaint was to talk themselves into feeling reasonably afraid and head in guns blazing.The officers knew Zorich possessed at least one pit bull. But this alone wasn't enough to justify the no-knock raid. Nor the murder of the dog. Officers claimed the dog charged them, necessitating the killing of the family pet. But testimony during the trial exposed this for the lie it was. The dog was shot in the back, six feet away from the nearest officer who, let's remember, was wearing tactical gear.That wasn't the only lie. The St. Louis PD also apparently misled the judge about the level of danger they might be facing.
[Attorney Jerome J.] Dobson says the lead officer fabricated a story to a judge and fellow SWAT members, leading them to believe Zorich’s sons were highly violent, to get the no-knock warrant issued.Dobson says that warrant was executed just two hours after it was signed."No evidence was going to be destroyed, you're not going to flush the gas meter down the toilet," said Dobson.
From the details of the case, it appears the St. Louis PD may not have even have had judicial permission to serve a no-knock warrant. The SWAT team had a warrant but it was the SWAT team leader who arbitrarily decided the team could bypass the Constitutional niceties of knock-and-announce. All this to serve an administrative warrant -- not a criminal warrant -- to search for evidence of violations of County ordinances.
Upon obtaining the Warrant, Rinck contacted Pfanstiel, a Tactical Operations Unit ("TAC") supervisor, and requested he execute the Warrant. Approximately one hour after obtaining the Warrant, Rink met Pfanstiel and other TAC officers at a park close to Plaintiff's house. Rinck informed the TAC officers that residents of Plaintiff's home had histories of violent behavior, including numerous assaults and one armed robbery, and that someone inside Plaintiff's house had slammed the door and shouted "fuck you" at him several days earlier. Rinck also told the officers about the many complaints the police department received about Plaintiff's dogs, including a report that her pit bull attacked another dog. Rinck did not mention the telephone conversation that he and Plaintiff had the previous day.Because Fumagalli was the "team leader" and Zavorka was the "point person," they reviewed the Warrant and drove by Plaintiff's property with Rinck in preparation for execution of the Warrant. Fumagalli created a plan for execution of the Warrant. Pfanstiel approved Fumagalli's plan and decided the TAC team would perform a no-knock entry.
That's not how that's supposed to work. No-knock warrants need to be issued by judges who can view the sworn statements justifying this kind of entry. This decision was made after the warrant -- a regular warrant -- had already been obtained. And this decision was unilateral -- subject zero impartial review.And that's why the county is now paying Zorich for killing her dog during this raid over an unpaid gas bill. This case was headed to trial and the County has decided taxpayers should pay for the violations committed by their public servants, rather than let these public servants be held individually responsible for their terrible decisions and actions.
In support of his position that deployment of a TAC team to execute the Warrant was justified because there was an immediate threat to officer safety, Rinck cites Holland. There, the Tenth Circuit held that the decision to deploy a SWAT team to execute search and misdemeanor arrest warrants at a 60-acre compound was reasonable because the owner and several other residents had histories of violence, officers suspected there would be firearms present, and the SWAT team's "goal was to effect the arrest and search warrant quickly, without injury, and to preserve evidence." 268 F.3d at 1190-91.The instant case is inapposite. The SWAT team in Holland was deployed to arrest a criminal suspect and seize evidence of an assault. Here, the TAC officers' intended to gain entry and secure Plaintiff's house to enable Rinck and the housing inspectors to inspect Plaintiff's property for housing code violations, none of which were characterized as emergent. Viewing the facts in the light most favorable to Plaintiff, Rinck determined, in the absence of any exigency and without allowing Plaintiff a reasonable opportunity to consent to an inspection, that it would be appropriate for the TAC unit to execute the Warrant within hours of obtaining it. Based on these facts, a reasonable jury could find that Rinck's conduct deprived Plaintiff of her Fourth Amendment right to be free from unreasonable searches and seizures.
I'm sure most of us believe everyone should pay their bills. But do we believe it hard enough to send 10 armed officers through the front door of someone who isn't keeping their gas bill current? I doubt that. And I doubt any jury would either.

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posted at: 12:00am on 06-Aug-2019
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Cisco Shells Out $8.6 Million For Selling The Government Easily Hackable Tech

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Not keen on competing with cheaper Chinese hardware, Cisco has long lobbied the US government to hamstring Chinese competitors like Huawei for lax security practices. At the beginning of this decade as Huawei began to make inroads into US markets, Cisco could frequently be found trying to gin up lawmaker angst on this subject for obvious, financial gain. And while Huawei (like most telecom giants) certainly does dumb and unethical things, it's fairly obvious that at least a portion of our recent hyperventilation over (so far unproven) allegations that Huawei spies on Americans is good old fashioned protectionism.Fast forward to this week, when new reports suggested that Cisco should have spent a little more time worrying about its own products. The company was required to pay the government $8.6 million after it was found the company routinely sold the government hackable video cameras, then did nothing to secure the devices once they were in the wild. For years. The vulnerable gear, exposed by a Cisco whistleblower, was sold to a variety of hospitals, airports, schools, state governments and federal agencies.And while news of the scandal was buried underneath the other, more notable privacy and security scandals of the day, the flaws were not what you'd call modest:

"Hackers could use the flaw not just to spy on video footage but to turn surveillance cameras on and off, delete footage and even potentially compromise other connected physical security systems such as alarms or locks all without being detected, said Hamsa Mahendranathan, an attorney at Constantine Cannon, which represented the whistleblower James Glenn."
Cisco states that there's no evidence that these vulnerabilities were exploited, though that seems like an impossible claim to make given the scope of the impacted products, many of which aren't even still in circulation. Glenn suggested the vulnerabilities were "trivial" to exploit. He also noted that despite being aware of the issue, Cisco left the cameras unfixed for four years, opening to liability given its contractor relationship to government:
"Glenn, during his work at a Cisco subcontractor called NetDesign over the course of 2008, sent the company detailed reports revealing that anyone with a moderate grasp of network security could exploit this software, but he never got a response, his attorneys said. Glenn was fired by NetDesign in 2009, his attorneys said. They are not alleging that dismissal was in retaliation for pointing out the flaw. He filed the whistleblower lawsuit two years later."
The settlement (astonishingly) marks the first time in US history that a government contractor has been forced to pay out under a federal whistleblower law for failing to have adequate cybersecurity protections, though it's unlikely to be the last. After the Washington Post broke the story, the New York Times found that the settlement will be doled out to an array of US government agencies, including FEMA, Homeland Security, the Secret Service, and all four branches of the military.

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posted at: 12:00am on 06-Aug-2019
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This Week In Techdirt History: July 28th - August 3rd

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Five Years AgoThis week in 2014 was one of significant events around the CIA. First, it was reported that the agency was intercepting confidential whistleblower communications sent to the Senate, which led to angry denials followed in short order by an admission and apology — while also revealing that the spying on the Senate went even further than the report showed. At the same time as all this, the CIA torture report was winding its way towards release. Some leaked details revealed that State Department officials knew about the torture and were instructed not to tell their bosses, and then the White House passed on its redacted version to the Senate — leading Dianne Feinstein to ask why so much of the report was redacted and delay its release. Then, at the end of the week, President Obama addressed the issue with the disturbingly casual statement that "we tortured some folks".Ten Years AgoThis week in 2009, there was no surprise when the court rejected Joel Tenenbaum's highly questionable fair use defense for file sharing, capping off the general trainwreck of his defense, and ending with Tenenbaum being ordered to pay $22,500 per song, for a total of $675,000. Meanwhile, the Associated Press was sick enough of people mocking its plans to DRM the news that it said it's done talking about fair use, though perhaps a more important question was whether the AP was still relevant at all. This was somewhat mirrored in Barnes & Noble's bizarre response to questions about why it put DRM on public domain books.Also this week in 2009: Taser dropped its misguided lawsuit against Second Life, we saw what appears to be the first defamation lawsuit over a tweet, and Apple was fighting to prevent a DMCA exception for jailbreaking iPhones — not a great look in the same week it blocked Google Voice from the iPhone and sparked an FCC investigation.Fifteen Years AgoFive years earlier in 2004, before the iPhone existed (but with people including us already using the term to describe a hypothetical device we all suspected was coming), Apple made news by putting a slimmed down version of iTunes on a Motorola phone, though we couldn't help but wonder if carriers would kill it due to their own walled-garden mentality. Not that Apple would deserve much sympathy since, that same week, RealNetworks engineered a way for people to put their Real music onto iPods only for Apple to act indignant and accuse them of "adopting the tactics and ethics of a hacker". Meanwhile, Google was moving towards its hotly anticipated IPO when it got hit by the MyDoom virus and taken offline for several hours (which may have only served to make people realize just how much they use it).

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posted at: 12:00am on 04-Aug-2019
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Philippines Lawmaker Introduces 'Fake News' Bill That Would Allow The National Police To Literally Police Speech

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Fake news laws are so hot right now. Any government with an authoritarian bent is getting in on the action, stepping up domestic surveillance while trampling remaining speech protections -- all in the name of "protecting" people from a concept they can't clearly define.It's not just the places you expect. Sure, we may like to think this sort of opportunistic lawmaking may be relegated to places like Vietnam and Singapore, where governments have continually expressed their interest in deterring criticism of governments and kings and their shitty laws. But even our own President spends a great deal of time talking about "fake news" and the need to prevent journalists from criticizing the guy sitting in the Oval Office. And France's government is looking at adding this to its long list of speech restrictions, even if only at "election time."The latest country to add a speech-squashing, government-expanding "fake news" bill to its roster of bad ideas is the Philippines. The proposal doesn't use the terminology du jour, but "fake news" by any other name is still "fake news." Here's the immediate effect the "Anti-False Content Act" would have on the country's population.

Introduced by Senator Vicente Sotto III, the bill strikes at the heart of Internet freedom, regulating if not outright policing the content of cyberspace in the Philippines. It mandates stiff prison terms and fines ranging from PHP 200,000 to PHP 2,000,000 against individuals who “create and/or publish” false and misleading content in social media sites, blogs and websites, as well as the “intermediaries” or platforms which carry the content, such as Facebook and Twitter.
Citizens are welcome to report "false content" to the government, which adds this to the tool chests of hecklers seeking a veto or online brigades wanting to put the color of law behind their deplatforming efforts. It's "see something, say something" for the internet, which is going to turn out to be just as useless as any other iteration of "report your friends and neighbors" programs.If citizens don't step up, the government can initiate the complaint process itself. The three agencies authorized to do this are the Department of Justice, the National Bureau of Investigation, and the National Police. Not scary at all. If any of these entities think the public needs protecting, it can start hunting down "false content" purveyors and extracting fines from social media companies. The law affects everyone, not just users of major social media platforms. Individual blogs can be targeted, as can the nation's news agencies.Rather than allow more speech to act as a corrective measure, legislators want to limit speech further, ensuring the only speech remaining will be government-approved. This is bad enough, but the agencies allowed to make these judgment calls on questionable posts/publications are among the worst to be entrusted with the literal policing of speech.
The harm that false information can inflict is undeniable. But there is far greater harm in authorizing government agencies to decide what is fake or factual news, false or accurate conclusions, correct or mistaken findings. Assigning agencies who deal with criminality and violations of law guarantees a most limited scope for the arbitration of truth.
If passed, another government will have succeeded in converting buzzwords to authoritarian power moves. The world needs less of this, but it's the rarest of governments that can see an opportunity to expand its power without acting on it.

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posted at: 12:00am on 03-Aug-2019
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Authors Take Copyright So Seriously They Hides Jokes In Their Copyright Notices

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Were you to hear from the lobbying groups for the major book publishers on the topic of copyright, their answers are generally to push for longer terms, stricter anti-piracy measures, and the most draconian reading of copyright law possible. Groups like The Authors Guild have been firm in their stances that copyright is the only thing that keeps authors in any kind of business, so important is it to their livelihoods. One would think, therefore, that all authors of books would likewise take copyright very, very seriously.Fortunately, for those of us that appreciate irreverent humor, not so much.

When my first couple novels came out, I lobbied to add some kind of notation about "fair use" and "limitations and exceptions to copyright" on the copyright notice page and was told not even to try because legal would never allow even the slightest variance from the boilerplate; apparently Steve Stack is better connected than I am, because his book 21st Century Dodos, has a copyright notice that is full of whimsy and gags, as Rebecca discovered and documented.
The entire thread is a fun read, and we'll get to other authors that do this sort of thing in a moment, but the whole thing kicks off with Stack's copyright notice on one of his books.
In case you can't read that or click through to the tweet, the bottom photos are of Stack's copyright notices. They are mostly boilerplate, save for these fun exceptions:
Steve Stack asserts the moral right to be identified as the author of this work, and woe betide anyone who suggests otherwiseA catalogue record for this book is available from the British Library, whatever that means
The other image is more of the same, except too long for me to type out entirely. That said, to get an idea of its flavor, it includes lines such as "No part of this publication may be reproduced, stored in a retrieval system, cookie jar or spare room... Unless you want to write the whole thing out in green crayon, in which case feel free." and "This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, carried across the country by relay, fired into space, turned upside down, eaten... On pain of death."You get the idea. That idea being that it doesn't seem like the author is taking copyright all that seriously. And he's not alone, as it turns out. Down the thread, another tweet points out that author Dave Eggers has a habit for this sort of thing as well.
Again, read the whole thing, but the opening paragraph is tasty enough that I will quote it below in case you cannot see it.
First published 2000 by Simon & Schuster, New York, a division of a larger and more powerful company called Viacom Inc., which is wealthier and more populous than eighteen of the fifty states of America, all of Central America, and all of the former Soviet Republic combined and tripled. That said, no matter how big such companies are, and how many things they own, or how much money they have or make or control, their influence over the daily lives and hearts of individuals, and thus, like ninety-nine percent of what is done by official people in cities like Washington, or Moscow, of Sao Paulo or Auckland, their effect on the short, fraught lives of human beings who limp around and sleep and dream of flying through bloodstreams, who love the smell of rubber cement and think of space travel while having intercourse, is very very small, and so hardly worth worrying about.Copyright © David (Dave) Eggers 2000Height: 5'11"; Weight: 170; Eyes: blue; Hair: Brown; Hands: chubbier than one would expect; Allergies: only to dander; Place on sexual-orientation scale, with one being perfectly straight, and 10 being perfectly gay: 3
It goes on from there.Now, none of this is to suggest that these authors have any dislike of copyright law. In fact, I scoured the internet for comments either might have made on the subject of copyright and couldn't find a thing. Which sort of leaves the literary graffiti both left in their books' copyright notices as their only comment on the topic at all.And, while it cannot be said that this defacing of their own rights is dismissive of those rights entirely, it certainly does suggest both that these authors don't take the subject quite as seriously as groups like The Authors Guild and that they have a fantastic sense of humor.

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posted at: 12:00am on 03-Aug-2019
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No Immunity For Cops Who Arrested A Man For Creating A Facebook Page Mocking The Police Department

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A few years ago, the Parma (OH) Police Department decided to turn its hypersensitivity into a criminal investigation. A local man, Anthony Novak, created a Facebook page parodying the PD's social media front. It wasn't particularly subtle satire. Most readers would have immediately realized this wasn't the Parma PD's official page -- not when it was announcing the arrival of the PD's mobile abortion clinic or the institution of a ban on feeding the homeless. Not only that, but the official logo had been altered to read "We No Crime."The Parma PD decided to treat this parody as a dangerous threat to itself and the general public. It abused an Ohio state law forbidding the use of computers to "disrupt" police services to go after Novak. Not that there was any disruption other than the rerouting of PD resources to investigate a non-criminal act.The end result was the arrest of Novak, the seizure of his electronic devices, and a four-day stay in jail for the parodist before he was acquitted of all charges. Novak sued the police department, but the district court decided to award immunity across the board to everyone involved. The Sixth Circuit Appeals Court has rolled back some of that ruling, allowing Novak's civil rights lawsuit to proceed.The opinion [PDF] opens with a brief discussion of how parody works -- and how the court treats parody -- which is more reprimand than reminder.

Apple pie, baseball, and the right to ridicule the government. Each holds an important place in American history and tradition. So thought Anthony Novak when he created a Facebook page to mock the Parma Police Department. He styled his page to look like the department’s official Facebook page. But the similarities ended there. Novak shared posts like an advertisement for a “Pedophile Reform event,” at which pedophiles would receive honorary police commissions.Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.
This misuse of police resources was mobilized by an entire twelve hours of posts by Novak. The page offered up a recruitment ad that "strongly encouraged minorities to not apply" and promised swift justice would be brought against an "African American woman" for "loitering outside a Subway" while it was being robbed by an "armed white male," who was presumably not under investigation. A certain number of readers were so upset by what they saw they phoned the police department, tying it up for a total of twelve minutes.The PD assigned two officers to the case and sent an email to Facebook reps demanding the page be taken down. The parody page made a brief appearance on the local news as Parma's brave crime fighters announced their desire to take down this Facebook criminal. Novak deleted the page shortly thereafter, but the Parma PD continued its investigation, ultimately arresting him for "disrupting" the PD's apparently endless supply of waste-able time.The Appeals Court says there is no doubt Novak's speech was protected, citing none other than The Onion.
[A] parody need not spoil its own punchline by declaring itself a parody. “Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).” Campbell, 510 U.S. at 583 n.17. Imagine if The Onion were required to disclaim that parodical headlines like the following are, in reality, false: Presidential Debate Sidetracked By Booker, De Blasio Arguing About Best Place In Lower Manhattan To Get Tapas, or, John Bolton Urges War Against the Sun After Uncovering Evidence It Has Nuclear Capabilities. News in Brief, The Onion (June 26, 2019); News in Brief, The Onion (June 10, 2019). The law of parody does not require us to strain credulity so far. And that is not because everyone always understands the joke. Susanna Kim, All the Times People Were Fooled by The Onion, ABC News (June 1, 2015).
Unfortunately, this doesn't necessarily mean Novak's claims of First Amendment retaliation will hold up. As the court notes, the Supreme Court recently gave officers a free pass to retaliate against protected speech, provided they can find some sort of probable cause to support an arrest. In some cases, it could be nothing more than jaywalking or not signalling before a turn. In this case, it could be an Ohio state law the Sixth Circuit court views as unconstitutional.First, it notes the only thing Novak engaged in was speech. And it was only determined to be criminal by using a very loose reading of a very loosely-written law.
Besides posting to his Facebook page, Novak committed no other act that could have created probable cause. In other First Amendment retaliation cases on point, by contrast, the defendant’s conduct was a mix of protected speech and unprotected conduct. That is, the defendants both said something and did something.[...]Here, we have nothing like that. Novak did not create a Facebook page criticizing police and use his computer to hack into police servers to disrupt operations. The sole basis for probable cause to arrest Novak was his speech. And there is good reason to believe that, based on the reasoning underlying the First Amendment retaliation cases, this is an important difference.
But if officers reasonably believed the law supported this arrest, they can avail themselves of qualified immunity. The state law against "disrupting" police operations is broad enough it could conceivably allow these officers to escape retaliation allegations. The Appeals Court doesn't like this law much.
[T]he vague language of the Ohio statute further heightens the concern raised in Issue 2. That statute makes it a crime to “use any computer . . . or the internet so as to disrupt, interrupt, or impair the functions of any police . . . operations.” Ohio Rev. Code § 2909.04(B). To see how broad this statute reaches, consider an example. An activist tweets the following message: “The police are violating our rights #TakeAction #MakeYourVoiceHeard.” People in the community see the tweet and begin calling the police department to share their views. A small protest even forms in the town square. Police station employees spend time fielding the calls, and a couple of officers go down to monitor the protest. Under the plain text of the Ohio statute, have these acts of civic engagement “interrupt[ed]” police operations? Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to “disrupt” or “interrupt” police operations could violate the law.
The vagueness of the law could help or hurt Novak, depending on the lower court's interpretation of the law and its application in this case. The Appeals Court only hints that an easily-abused law that blurs the line between legitimate enforcement and speech-targeting misuse may work out better for the plaintiff than the law enforcement defendants. No qualified immunity… at least not yet.A few other claims survive as well, including Novak's allegation that the Parma PD's announcement it would prosecute him for his parody page was prior restraint. The court agrees, allowing this claim to continue for further factual development. A number of his other claims rest on the same issue as his retaliation claim: probable cause or the lack thereof. If it's determined the Parma PD had no probable cause to arrest Novak, his claims of malicious prosecution and Privacy Protection Act violations will survive.The most important decision is the most immediate: no qualified immunity for the Parma PD officers and no early exit from the lawsuit. There's no question the search and arrest were retaliatory. The only question remaining is how much Ohio's terrible law will help these cops get away with it.

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Malaysia Looks To Prosecute Homeowners Where Accused Streaming Piracy Occurs

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Back in the early days of filesharing clients and bittorrent being the focus of industry anti-piracy efforts, it was rare but not unheard of for end users to be targeted with lawsuits and criminal prosecution for copyright infringement. With the piracy ecosystem largely moving off of those kinds of filesharing platforms and more into a realm in which end users instead simply stream infringing material over the wire, rather than downloading it directly to their own machines, the focus on the consumer of pirated material has fallen by the wayside. Instead, the focus is now on the infringing sites that offer those streaming materials to the public. This makes a great deal of sense, actually, as the average user plausibly can claim ignorance as to the illicit nature of streamed material, combined with the simple fact that, unlike bittorrent technology, streaming material doesn't simultaneously offer it up to others as well.Again, this makes sense.Well, someone should reach out to the Malaysian government, because its new plans to fight piracy occurring with the aid of in-house Android boxes includes a strategy to prosecute any homeowner where such a device used for infringement exists.

There are many strategies available but the government in Malaysia is currently considering something unheard of anywhere on the planet. While it hasn’t shied away from ordering ISPs to block pirate sites, it now wants to hit consumers of content too, specifically those using Android-style set-top boxes.The mission of the National Film Development Corporation Malaysia (FINAS) is sometimes compared to that of the MPAA in the US. Unlike the MPAA, however, FINAS is a government department within the Ministry of Communications and Multimedia. Its chairman, Datuk Hans Isaac, says that it’s time to hold the public accountable for piracy.“I’m putting a paper together to propose that the owner of the house is responsible for the use of illegal Android TV boxes,” he said at the Fast Track 2019 Creative Digital Economy Forum in Cyberjaya.
This plan should raise the eyebrows for several reasons. The whole thing looks a bit like the strategy used by copyright trolls, where IP addresses are used to identify infringers, except that IP addresses make for shitty evidence as to who is actually infringing. After all, the account holder of an internet service isn't the only individual who might use that service. The same goes with homeownership, except more so (more on that in a moment). If IP addresses are bad at determining who actually infringed on a copyright, home-ownership records must represent a step further back from actual evidence.And the government isn't even trying to pretend that its plans will make good on catching the party actually infringing copyright.
In the United States, Europe and elsewhere it’s not uncommon for copyright trolls to blame Internet subscribers (often the homeowner) for Internet piracy. However, it seems that FINAS wants to take things a whole lot further by placing the responsibility for piracy on those who may be innocent and/or completely absent.“It doesn’t matter if the person is renting the house to another person who bought the device,” the FINAS chairman clarified.
This can be paraphrased as: "We're not actually all that concerned if we catch the infringing party. We mostly just want someone to blame for all of this, so we'll settle for whoever owns the abode, whether they live there or not." The potential that this new plan will ensnare innocent parties is nearly 100%. It's also going to be absolute hell for the real estate rental market. That sound you hear is a thousand Malaysian real estate lawyers scrambling to revise lease agreements for their customers.Open for discussion is exactly how effective all of this will be anyway.
Norman believes that when tackling the problem, the Malaysian Communications and Multimedia Commission (MCMC) should consider restricting Internet access to those who utilize pirate services.Again, it remains unclear how the government could determine who these people are. The main problem cited isn’t easily-trackable BitTorrent users but those who frequent streaming sites, portals, and other services.
Which is why the strategy has always been to go after and/or block the sites themselves, rather than the end user streaming the content. What silver bullet the Malaysian government has crafted to be able to track this sort of thing remains unknown at this point.But what isn't unknown is just how antithetical to justice this plan is.

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Former Law Enforcement Officer Displays His Ignorance Of The Law In Civil Forfeiture Article

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If you're going to be touted as an "expert," the very goddamn least you can do is not make people stupider. May I present to you "Trooper Steve," the resident "traffic safety expert" for ClickOrlando.com.He comes highly-touted. None other than the Orlando Sentinel called him… well, a "traffic safety expert." Here's the headline:

Former FHP Trooper Steve Montiero brings wealth of knowledge as News 6 traffic safety expert
Underneath the video announcing this triumphant hiring is a sentence that makes my head ache terribly:
Montiero gained fame with the Florida Highway Patrol as a Public Information Officer…
It's really weird that anyone would "gain fame" as a law enforcement officer. Sure, his position was more public-facing than most, but let's not start building a statue in his honor yet.Here's a bit from his bio at ClickOrlando. [Please hold your vomiting until the end of the quote.]
A Central Florida native and decorated combat veteran, Montiero comes to the station following an eight-year assignment with the Florida Highway Patrol. While there, his responsibilities included patrolling Osceola, Orange, Brevard, Lake, Seminole and Volusia counties, along with the Orlando area of the Florida Turnpike. He was later assigned to the Florida Highway Patrol Motorcycle Unit, where he began doing public speaking engagements and found his passion for community involvement.From that experience, he became the face of FHP in Orlando. Lt. Kim Montes took Steven under her wing and made him assistant Public Affairs Officer.Over the last several years, he has become known across the Sunshine State as “Trooper Steve.” He’s spent his time doing everything from corporate events to interviews on WKMG, to just hanging out with kids in hopes of spreading the word about safe-decision making in hopes of saving just one life.
Why am I being so harsh on Trooper Steve? Well, it's a few things. First and foremost, his leap from law enforcement officer to "traffic safety expert" assumes he actually knows how to keep traffic safe. The thing about cops is they are under no obligation to keep the public safe. As the occupation name makes clear, they are there to perform law enforcement, not keep drivers safe. If the two happen to align occasionally, everyone wins. But LEOs have no "duty of care."More than that, touting someone as an "expert" tends to lead viewers and readers to believe this person knows what the fuck they're talking about. But as this recent column by "Trooper Steve" painfully proves, police PR reps make for terrible "experts."The question is fairly innocuous: are there any safety tips Trooper "Traffic Safety Expert" Steve could offer travelers roaming around the country with cash in their possession?
Martha, of Champions Gate, asked, “Is there anything I should know when carrying large amounts of cash in the car?
Everything goes off the rails immediately.
Well if you’re up to no good and get stopped by the police and have large amounts of cash on you, you’re going to have something to worry about. Civil asset forfeiture act requires you to show proof of cash when law enforcement is conducting an investigation.Anything around $5,000 or more you should always have some type of paperwork showing where that money has come from, legally. This is to eliminate the idea that this money was earned or given during criminal activities for which you may be investigated.
First and fucking foremost, there is nothing illegal about cash. Cops presume there is because it puts money directly in the pockets of cops. Civil asset forfeiture tends to benefit the agency performing the seizure, so cops (and troopers) have every incentive to view any amount of cash as suspicious.Trooper Steve draws the line at $5,000. It's an arbitrary line. Law enforcement officers will gladly seize amounts less than that because they're allowed to keep 85% of everything they seize.But -- either due to stupidity or as a favor to his law enforcement buddies -- "expert" Trooper Steve shifts the burden of proof to drivers. That is not the law. The law -- following some minimal reform efforts -- lays the burden exactly where Trooper Steve says it doesn't.
Cash seizures still won’t need to be preceded by an arrest, though under the new law, forfeiture of any property won’t be made permanent unless law enforcement can prove “beyond a reasonable doubt” that it is linked to a crime. That’s the same standard of proof required for a criminal conviction.
So, it is not up to drivers to prove the cash they have on them is legit. It's up to cops. Of course, this won't stop a seizure, but at least the law says the burden of proof is on law enforcement. Supposed "expert" Trooper Steve says it isn't. He is making people stupider. And perhaps conveniently so, because while you can take a cop out of the force, you can't take the force out of the cop.Do better with your hiring, ClickOrlando. And clean up after your repurposed public servants when they fuck up. Thanks.

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Liverpool FC Also Apparently Attempted To Trademark Widely Used Chant By Football Fans

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We were just discussing Liverpool FC, a football club in the UK's famous Premier League, receiving a ton of backlash from the public and other football clubs over its rather audacious attempt to trademark "Liverpool". Now, Liverpool FC claimed that its trademark application was extremely targeted, claiming that it was geared specifically towards the football marketplace. Unfortunately, in the current protectionist trademark era, that doesn't mean much. First, we see trademark holders threaten and sue those across marketplace borders all the time. Second, there are other football clubs in Liverpool, meaning that the trademark application represented a direct threat to their brands.It turns out this callous attitude towards other football clubs isn't a one-off for Liverpool FC. Recent reporting reveals that the club also has attempted, and then withdrawn, trademark applications for a popular football fan chant that doesn't even originate with Liverpool FC fans.

Liverpool FC made an audacious attempt to trademark the popular terrace chant ‘Allez, Allez, Allez’, it has been revealed. The Reds’ owners FSG made an application to the intellectual property office to trademark the words last November, according to iNews, only to later withdraw it. ‘Allez, Allez, Allez’ has become synonymous with the Anfield faithful having adopted it last year during their run to the 2018 Champions League final.However, Liverpool were not the first side to adopt the chant, with the song reportedly sung by fans of FC Porto as far back as 2016 and the likes of Genoa, Juventus and Napoli all coming up with their own versions. Fans of Aston Villa, Rangers, Atletico Madrid and even Cardiff City are also said to have appropriated the popular terrace chant.
Making this all the more stupid is that the chant is from a song created by an Italian band in the 80s. So, Liverpool FC fans occasionally use a fan chant appropriated by fans of other clubs, which stems from an Italian band from a few decades ago... and decided to try to trademark it?So of course there was more fan backlash again, both before and after Liverpool FC had withdrawn its application. The real question is why the club seems to think it needs to lock up language that is generic or common across its geographic area and/or marketplace, to the detriment of everyone else?

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