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We've written many times about the right to repair and how various companies have basically destroyed the concept of ownership by putting all sorts of post-purchase restrictions on what you can do with the products you supposedly "bought." This began with copyright, but has morphed into other areas as well, including abusive and illegal claims about "warranty void if removed." I still believe that excessive copyright law is to blame for all of this, as physical goods manufacturers looked at the post-sale restrictions enabled by copyright law and immediately began to think of ways to use that on physical items.This lack of a "right to repair" is showing up in more and more places including, somewhat incredibly, the US military. The NY Times recently ran an op-ed from Capt. Elle Ekman, a logistics officer in the US Marine Corps., expressing her dismay at how the lack of right to repair laws is actually making it difficult to impossible for the US military to repair its own equipment. The whole thing is really stunning.
I first heard about the term from a fellow Marine interested in problems with monopoly power and technology. A few past experiences then snapped into focus. Besides the broken generator in South Korea, I remembered working at a maintenance unit in Okinawa, Japan, watching as engines were packed up and shipped back to contractors in the United States for repairs because that's what the contract says. The process took months.With every engine sent back, Marines lost the opportunity to practice the skills they might need one day on the battlefield, where contractor support is inordinately expensive, unreliable or nonexistent.I also recalled how Marines have the ability to manufacture parts using water-jets, lathes and milling machines (as well as newer 3-D printers), but that these tools often sit idle in maintenance bays alongside broken-down military equipment. Although parts from the manufacturer aren't available to repair the equipment, we aren't allowed to make the parts ourselves due to specifications.
Ekman notes that this problem has gotten worse over time, not just because of companies trying to block the right to actually fix what you own, but because of the trend to push R&D out of the military into the commercial sector, and then for the military to purchase from that commercial sector. When the military built its own stuff, of course it could repair it. But now it relies on standard commercial contracts, which apparently are blocking the right to repair and leaving US service men and women with subpar equipment that could (and should) have been fixed much faster. And Ekman expects the problem to only worsen:
The effects of the right-to-repair paradigm will become only more significant and restrictive as older military vehicles and systems are replaced with equipment that is more complex and involving more electronics. Already complicated equipment designs lead to situations where the manufacturer is the only source for repairs.
Again, this is an issue that reaches far and wide, well beyond the claims of "piracy" or "knock-offs" that some people insist is at the heart of the right to repair movement. When the military has to worry about whether or not it can have the best equipment working properly because of a bullshit commercial contract, we have a real problem:
Fundamentally, service members just want to ensure that their gear is ready to meet mission requirements. While a broken generator or tactical vehicle may seem like small issues, the implications are much larger when a combat ship or a fighter jet needs to be fixed. What happens when those systems break somewhere with limited communications or transportation? Will the Department of Defense get stuck in the mud because of a warranty?
It's well past the time that the right to repair was established as a fundamental right. People who insist on supporting "property rights" are frequently on the wrong side of this argument, by claiming that the "contract right" supersedes the "right to repair." But that's ridiculous and truly an attack on actual property rights and ownership. If you own something, you should be able to take it apart, to modify it, and to fix it, without it violating any contracts or laws.
The botched drug raid in Houston that left two homeowners dead and one cop paralyzed from the waist down has resulted in additional criminal charges… against the cops.Officer Gerald Goines -- already facing felony murder charges for the raid that left Rhogena Nicholas and Dennis Tuttle dead -- claimed an informant purchased heroin from Tuttle and saw guns in the house. One no-knock raid later, Nicholas and Tuttle were dead, killed by cops whose actions were set in motion by a warrant affidavit full of lies.The heroin supposedly sold to Goines' informant? Pulled from the console of Goines' cruiser. The controlled buy didn't happen either. No one has been able to locate the informant Goines claimed saw heroin and guns in the Tuttle residence. As a result, more than 1,400 cases Goines had a hand in have been placed under review. Two dozen have already been dismissed. The DA's office and the FBI have also opened their own investigations.The raid produced nothing the cops were looking for. There was no heroin. There were a couple of guns, but the gun Tuttle supposedly used to shoot at officers wasn't in the search inventory. All the officers found was personal use amounts of cocaine and marijuana. An independent forensic examination of the scene came to the conclusion that either the state's forensic unit sucks at what it does or that it was attempting to make the evidence fit the false narrative crafted by the officers who participated in the raid.Charges are being added to existing charges Officer Goines faces as the fallout from the raid continues, the Houston Chronicle reports.
A federal grand jury on Wednesday charged two former Houston police officers at the center of a failed January drug raid with civil rights violations, falsifying records and lying about use of confidential informants, marking the latest turn in one of the worst HPD scandals in decades.[...]Authorities allege [Gerald Goines] fabricated an informant and lied on a search warrant affidavit, an offense report and the tactical plan made in preparation for the bust that turned into a gun battle that ended with the deaths of Nicholas and Tuttle and with five HPD officers injured.
And it wasn't just Officer Goines lying. The investigation of the Tuttle residence began with a 911 call -- supposedly from Rhogena Nicholas' mother -- saying the couple were doing drugs and had guns in the house.But it wasn't someone's overly-concerned mother. It was actually a neighbor. This neighbor is now facing charges for her part in the tragedy.
Federal investigators said they believe they have the 911 caller who made false accusations that led to the botched raid of a Harding Street home, leaving two dead and two former officers looking at prison time.Patricia Garcia, a 53-year-old woman, was picked up Wednesday morning from the house directly across the street from the scene of the deadly Jan. 8 raid. Garcia is alleged to have falsely stated her daughter was at the home located at 7815 Harding St. and that she believed there were guns and drugs inside of the residence.
This isn't the end of this debacle, but every new development says nothing good about the Houston PD's narcotics unit or the department's leadership. Chief Art Acovedo spoke out against these officers, but only after the original narrative -- the one Goines is charged with creating -- became impossible to defend.
A few weeks ago we wrote about a privacy bill in the House that seemed unlikely to go anywhere, and now we have the same thing from the Senate: a new privacy bill from Senator Maria Cantwell, called COPRA for "Consumer Online Privacy Rights Act." For months it had been said that Cantwell was working on a bipartisan effort to create a federal privacy law, so the fact that this bill only has Democratic co-sponsors (Senators Schatz, Klobuchar and Markey) doesn't bode well for its likelihood of success.The basic features of the bill are to give more power and resources to the FTC to enforce "digital privacy" and also allowing state Attorneys General to enforce the law. And... as with the House bill it includes a private right of action. This is something that many privacy organizations do favor, but still seems likely to be a disaster in practice. Letting anyone sue for privacy violations when no one actually agrees what "privacy means" is a recipe for a ton of nuisance lawsuits. If this bill actually had a chance, it could lead to the rise of "privacy trolls." Even in the most well meaning sense of trying to protect privacy, the fact that so many people disagree over what should actually be private and what privacy means, would create quite a legal clusterfuck.One thing this bill does that the House bill would not, is to pre-empt "directly conflicting state laws." That's important for any federal bill, as otherwise companies will have to figure out how to comply with many different (and sometimes conflicting) standards and rules from multiple different states. At least this bill would prevent that. As Consumer Reports notes in its write-up of the bill, it is good to have more alternatives out there, and the bill does have some useful ideas in terms of protecting privacy:
It's a good bill to have out there, Brookman says. It gets a lot of things rightcompanies shouldn't be collecting cross-site profiles about me and sharing that informationand it's pretty aggressive on those things.The proposed law expands the definition of sensitive information to include biometric details such as facial recognition data, as well as geolocation data that is collected as individuals go about their day-to-day lives.
But, that "aggressiveness" is also what limits the bill's chances. This seems more performative than anything else, recognizing that people are (reasonably) worried about their privacy online, but does little to deal with the actual issues regarding privacy.
We've been on this for some time now, but the explosion in the craft brewing industry has led to a likewise explosion in trademarks for individual brews and breweries. It's a problem very specific to the craft brewing industry for a number of reasons. First, this trademarking practice deviates from the tradition in the industry, which was one in which craft breweries were largely amicable and permissive with their cleverly named beers. Second, the explosive growth is quickly running into a roadblock of language, in which only so many words can be combined to name brews, even as the number of those brews on offer continues its exponential growth. Third, and perhaps most importantly, craft brewing is now big business, such that many macro-breweries are now gobbling up craft breweries, and those macros tend to be more litigious and more often engage in trademark bullying.It's why, for several years now, we've talked about the coming trademark disaster for the industry, including highlighting legal experts for that industry trying to sound the alarm bells. None of this has slowed down the problem however, with the latest being that, to nobody's surprise, 2018 was a record year for beer trademarks being granted in the UK.
The number of trademarks registered for beer in the UK has hit a record high in 2018, jumping 6% to 2,519, up from 2,372 in 2017*, says RPC, the City-headquartered law firm. RPC says the continued boom in demand for craft beer and an increased range of low-alcohol beers has driven up the number of trademark registrations.RPC adds that the rise in beer trademarks is being further driven by the demand for low-alcohol and alcohol-free beer, which has resulted in a proliferation of new low-alcohol beer brands. This demand is partly driven by younger generations, more of whom are going ‘teetotal’ or choosing to cut back on their alcohol intake for health purposes. UK sales of non-alcoholic beer, wine and spirits reached a record high of £57m last year** - an increase of 39%.
This. Is. Not. Sustainable. It just simply isn't. If this industry is going to continue to grow, with that growth being good for literally everyone other than the largest breweries, this trademark-it-all attitude is eventually going to represent a brick wall. And we've already seen what this has meant for the industry, with a severe uptick in trademark disputes between breweries. Given how this industry operated for years and years, there is literally no reason why Techdirt's pages should be filled with stories about beer-related trademark disputes. And, yet, here we are.And it's worth remembering that more trademarks mean exponentially more legal disputes, as overly aggressive legal teams see infringement shadows everywhere they turn.
RPC adds that as the number of beer trademarks continues to grow, so too does the likelihood of more legal battles over trade marks taking place. For example, Manchester based Cloudwater Brew was recently forced to rebrand its ‘Good Call Soda’ after Heineken said the name infringed on a trade mark it had registered for one of its brands, Fosters, for a TV advertising campaign.
Again, if you want to grow this industry, this is not the way to do it. It would be much better if the industry hadn't murdered its own tradition of congeniality in favor of permission culture.
If it generates records -- especially third-party records -- the government is going to come asking for them.Not only is Uber's ride-hailing service subject to a bizarre and inconsistent set of state-level regulations, it's also a storage facility containing plenty of data about people's travels. Taking an Uber may keep a rider's license plate off the ALPR radar, but the government can still track people's movements by asking Uber for customer data, which presumably includes where they traveled and when.Zack Whittaker of TechCrunch says government agencies are taking more of an interest in Uber's data collection, according to the company's latest transparency report:
The ride-hailing company said the number of law enforcement demands for user data during 2018 are up 27% on the year earlier, according to its annual transparency report published Wednesday. Uber said the rise in demands was partly due to its business growing in size, but also a “rising interest” from governments to access data on its customers.Uber said it received 3,825 demands for 21,913 user accounts from the U.S. government, with the company turning over some data in 72% of cases, during 2018.
This is the Golden Age of Surveillance, whether certain law enforcement figures want to admit it or not. More services require users to create accounts linked to real names and other verifiable information, like credit cards or bank accounts. Everything feeding into Uber's data pile is available without a warrant. Bank records are still obtained with subpoenas, given no additional Fourth Amendment protections by recent Supreme Court decisions hinting that when the Third (Party) meets the Fourth (Amendment), it's not as simple as it used to be.Still, warrants are being used. The transparency report shows warrants are used about a fifth of the time. Without more granular detail, it's tough to say what law enforcement agencies feel is warrant-worthy. Subpoenas are the most popular way to obtain info with exigent circumstances ("emergency") following close behind.There will soon be even more the government can collect from Uber. The company plans to start recording (audio only at this point) rides for driver and passenger safety. These recordings will belong to Uber, which means the government only needs to approach the company to perform post facto eavesdropping. Conversations in an Uber vehicle will become third-party records.Maybe courts will view these as the modern equivalent of a phone booth conversation. Maybe they'll view them as non-private conversations -- the equivalent to jailhouse calls as long as riders and drivers are informed ALL CONVERSATIONS ARE RECORDED. Until then, it's a grey area law enforcement is free to explore.
Hot damn. A proper application of the Supreme Court's Rodriguez decision. (via FourthAmendment.com)The Rodriguez decision -- while ultimately not helpful to Dennys Rodriguez -- put a small damper on pretextual traffic stops. This isn't to say cops cannot engage in pretextual stops. They can. They can imagine almost any violation of traffic laws to initiate a stop and then angle for a consensual vehicle search after that.The Supreme Court's ruling said a traffic stop ends when the objective ends. If someone is speeding, the issuance of a warning or citation ends the stop. No waiting around for a drug dog. No endless pestering of the driver in hopes of getting a peek in the trunk. It also made it clear a Fourth Amendment violation is a Fourth Amendment violation, no matter how short the interval between the end of the stop and the arrival of a drug dog or the permission to perform a search.Cops have tried to cut it close by making stops short but having a K-9 unit nearby to do a sniff while paperwork is completed. Sometimes it works. Sometimes there's enough stuff going on cops can talk courts into believing reasonable suspicion to extend the stop existed.But more and more, this stuff that cops have been doing for years doesn't work. In this case, the existence of a body camera recording puts the court on the side of the defendant. Score one for civilians and accountability. Without this footage, this decision might have gone the other way.Deputy Cody O'Hare started following a car because he thought it was driving too slow in the fast lane. The rental car was only doing 60 mph in a 70-mph speed zone, which is a violation of Iowa state law. Driving slower than the speed limit is permissible, but a failure to move into an unimpeded right-hand lane isn't.The traffic stop was initiated but it soon became clear Deputy O'Hare could not have cared less about the perceived infraction. From the decision [PDF]:
Deputy O’Hare initiated a conversation with [Juan] Salcedo and asked about his travel plans. Salcedo explained he was driving back from California after visiting his girlfriend. Salcedo further explained his home was New York City and he and the passenger, who Salcedo identified as his cousin, were traveling together. Deputy O’Hare repeatedly thumbed through the rental car agreement. In response to Salcedo’s questioning about the reason for the stop, Deputy O’Hare said there was no reason for Salcedo to be driving in the fast lane. The conversation continued while Deputy O’Hare again quickly and repeatedly flipped through the rental car agreement. Salcedo stated he initially flew from New York to Florida and then flew from Florida to California. Salcedo and his cousin rented a car in California to drive back to New York City. It appeared, based on the body camera footage, that Deputy O’Hare put forth no effort to process the traffic infraction.
Traffic stops are cool, but do you know what's really cool? Fishing expeditions. Since the questioning hadn't yet resulted in Juan Salcedo telling the officer he had 82 lbs. of marijuana in the trunk of the car, the deputy kept stalling. His disinterest in finishing the job in front of him was again exposed by his body camera.
Within seven minutes of Salcedo being pulled over, another patrol car arrived and Deputy O’Hare exited his car to speak with Deputy Lenz. Salcedo remained in the front seat of Deputy O’Hare’s car. Deputy O’Hare’s body camera leaves no doubt that he was quite disappointed to learn a drug dog was not available.
Somewhat undeterred, Deputy O'Hare decided to start questioning the vehicle's passenger, Jairo Rodriguez. It was then that his keen cop instincts took over.
Deputy O’Hare noted the presence of three cell phones for a car containing only two people. He also observed the back seat of the rental car contained “a lot of luggage.” Deputy O’Hare asked Rodriguez if all of their personal property was situated in the back seat, to which Rodriguez responded it was. At the suppression hearing upon cross-examination, Deputy O’Hare testified he noticed these red flags “right away” from his initial observation of the rental car but only further inquired about them while speaking with Rodriguez.
"Red flags" equals one more cell phone than vehicle occupants and… um… luggage. OK.When the passenger and driver's stories failed to match up exactly, Deputy O'Hare called bullshit. He got a noncommittal response to his questions about contraband (basically "do what you gotta do") from the driver and proceeded with a search. This led to the discovery of a whole lot of weed and the arrest of both men. Also this, which is some damn fine charge-stacking.
The State’s two-count trial information charged Salcedo and Rodriguez with possession of marijuana with intent to deliver in violation of Iowa Code section 124.401(1)(d) and failure to affix drug tax stamp in violation of Iowa Code chapter 453B.
No good, says the court. This is exactly the sort of thing the Rodriguez decision forbids. It's unclear whether the Rodriguez decision paid off for this particular Rodriguez, but the evidence against Juan Salcedo is going to vanish.The body camera footage supplied plenty of evidence as to Deputy O'Hare's intent during this stop. So did Deputy O'Hare.
Deputy O’Hare admitted that it was his intention to investigate issues other than the traffic infraction. He based this view on the fact that “it was a rental vehicle, the three phones, luggage in the back seat, and it becoming a third-party rental.” Deputy O’Hare explained generating traffic citations required entering information into the computer. In response to whether he had ever entered Salcedo’s information into the computer, Deputy O’Hare stated, “No. I was never—never entered information into a traffic citation.”
The court finds there was no reasonable suspicion to extend the stop. Any suspicion O'Hare had, he accumulated after the unconstitutional extension. O'Hare knew nothing about the "suspicious" rental agreement until after he had questioned the passenger. And he didn't see the luggage until after he had learned of the third-party rental agreement. There were no "red flags" until after O'Hare had obtained this information from the second person he questioned -- all while not moving forward with the citation process.This simply isn't allowed under SCOTUS precedent, as the court points out. Deputy O'Hare had a job to do. He didn't do it. He did everything else but proceed with the citation process. While it's possible to turn a traffic stop into a drug bust without violating the Constitution, O'Hare's decision to abandon his pretext entirely proves fatal.
What becomes immediately apparent is Deputy O’Hare’s complete lack of effort to address Salcedo’s specific traffic infraction. Six minutes elapsed from the time Salcedo entered the patrol car to the time Deputy O’Hare departed to speak with Deputy Lenz. Deputy O’Hare admitted that, throughout the duration of the stop, he did not ask Salcedo questions regarding the traffic infraction. The body camera revealed Deputy O’Hare repeatedly thumbing through the rental agreement. There does not appear to be any attempt to gain understanding of the document. To the contrary, the incessant page flipping appears to be a stalling tactic to keep the conversation going until a drug dog arrived. During this time, he did not attempt to run a check of Salcedo’s identifying documents or criminal histories, and he did not prepare a traffic citation or warning. Deputy O’Hare admitted, “I was never—never entered information into a traffic citation.”The body camera further supports Salcedo’s position that Deputy O’Hare was stringing along the stop until a drug dog arrived. Shortly after Salcedo entered the patrol car, Deputy O’Hare requested assistance. When Deputy Lenz arrived, Deputy O’Hare was immediately disappointed to learn a drug dog was not available. Deputy O’Hare also testified at the suppression hearing that he knew from the time of the stop that he would be investigating issues other than the traffic infraction.
Evidence suppressed. 82 pounds of evidence. And some missing tax stamps, I guess. Everything stacked on the table during the police press conference may as well have been thousands of sheets of paper with the words "I FUCKED UP" printed on them. The contraband in the evidence locker is evidence of nothing, thanks to this deputy's actions.
Copyright troll Richard Liebowitz (who once got so offended that he was called a copyright troll that he asked a judge to "redact" the phrase, only to have the judge double down on calling him a troll)... He's been sanctioned for lying to the court, he's been sanctioned for failing to comply with court orders, and is currently facing some serious penalties for lying about the death of his grandfather to a judge (which resulted in the most ridiculous letter he had a family friend send to the court, chalking such mistakes up to inexperience). But Liebowitz has a ton of experience in getting the law wrong. Hell, it was over two years ago that we wrote about him getting a judicial smackdown so bad that the judge began it by stating:
No reasonable lawyer with any familiarity with the law of copyright could have thought...
And yet, Liebowitz is still out there doing his thing. And it's causing real problems. Earlier this year, he sued a small business called Analytical Grammar because the company's owner, Erin Karl, shared a viral meme on Facebook. She wrote all about the case in a GoFundMe page:
In Dec 2017 we shared a picture of a visual pun that was going viral around the internet. It also went viral from our page.Fast forward to August 2019. Analytical Grammar was served a lawsuit on behalf of Matthew Bradley of Windsor, California, who says he created the meme. There had previously been no communication between Bradley and AG.Representing Bradley is New York attorney Richard Liebowitz.
If you're curious, the Facebook post appears to still be up. You can also see the original image as it's Exhibit A in the complaint. It's a silly joke showing a bunch of levels (you know, the tools you use to see if something is level), all with painter's tape on each one with "WRONG" written in a Sharpie on each one, and the image is captioned: "This is wrong on so many levels." Get it? It made me chuckle, at least. You can find this image in some other places online, including, (bizarrely) a version that also shows Ajit Pai's face on each level for reasons I don't fully understand.Either way, Liebowitz sued on behalf of Matthew Bradley, who apparently wants to cash in on the viral nature of this image. Erin Karl brought in Booth Sweet, the Boston-based law firm that has quite a bit of experience dealing with copyright trolls, including Liebowitz. Their Answer and Counterclaims is worth reading as well, as they note that Bradley originally posted his image to Facebook, which has a convenient "share" feature, and even commented how excited he was that his image was being shared widely, stating: Wow! I am stunned! Over 10K shares. Time for a shameless plug for my blog..." They also point out that Bradley's image itself is believed to be "an unlicensed derivative work based on an earlier photograph by a third party," meaning that if there is much of a copyright at all in the image, it might not be Bradley's, while also pointing out some other issues regarding Bradley's delayed registration of the image.Also, how can you not love a filing in this case with the following paragraph:
Bradley's lawsuit is wrong on so many levels. He levels claims against Analytical for sharing his joke. He does his level best to take Analytical down a level. But his claims are not on the level. Analytical raises these counterclaims to level the field.
It appears Mr. Leibowitz's standing has been called into question in the United StatesDistrict Court for the Southern District of New York. Referred to as a copyright troll, in a caseinvolving one of the plaintiffs named above, a district judge recently observed Mr. Liebowitz hasbeen sanctioned, reprimanded, and advised to 'clean up [his] act' by other judges of this Court.Sands v. Bauer Media Grp. USA, LLC, No. 17-CV-9215 (LAK), 2019 WL 4464672, at *1(S.D.N.Y. Sept. 18, 2019). Serious sanctions were imposed by the judge in that case on accountof plaintiff's discovery deficiencies, including requirement that Mr. Leibowitz personally paydefendant's fees associated with advancing its motion to dismiss as a sanction for allegeddiscovery misconduct.This judge joins the chorus of those telling this attorney to clean up his act. The docketsof each of the cases assigned to me, wherein this attorney represents a plaintiff, are littered withdeficiency notices. This is a harbinger for troubled litigation ahead.
The judge highlights the many mistakes Liebowitz has made, including not filing a "notice of appearance" (one of the first steps you do as a lawyer in a lawsuit) for over two months. The judge points to similar failures in other dockets where Liebowitz is the lawyer in question. The judge is not happy about Liebowitz wasting the court's time.
The problems described above appear rooted in a failure to read or understand the court'sCM/ECF Policies and Procedures Manual and the Court's Local Civil Rules, and disrespect forthe work of the clerk. There appears a failure to profit from the clerk's work to bring issues to theattorney's attention prompt attention. Many of the issues repeat themselves from case to case.
And then tells him to shape up, or see all the cases dismissed:
This attorney is noticed that he has until October 10, 2019, to cure any and every noticeddeficiency in the three cases now assigned to me. If no address is made in accordance with thisorder, the cases at issue will be dismissed.
On October 10th, Liebowitz had to tell the court that he believed that all of the various deficiencies had been resolved and "there are not any noticed deficiencies on the docket for the above-referenced matter." The case is continuing, but it appears that, still, all is not well. Since Liebowitz is not based in North Carolina where the case is filed, he had a local co-counsel on the case, Seth Hudson. However, for whatever reason (we won't speculate), Hudson apparently decided that maybe he was better off not being a part of this case, and so Liebowitz is trying to swap him out with another local lawyer.Last week, Liebowitz filed a motion for Hudson to withdraw as an attorney, and wouldn't you know it? He did that wrong as well. From the docket:
NOTICE OF DEFICIENCY regarding 23 Motion to Withdraw. The signature block on this document does not comply with the local rules for local counsel. In addition, whenever an attorney of record in a case will be replaced by another attorney who is an active member of the bar of this court, a notice of substitution of counsel must be filed. The notice must (i) be signed by and contain a signature block for both attorneys in compliance with Local Civil Rule 10.1; (ii) identify the parties represented; (iii) verify that the attorney entering the case is aware of and will comply with all pending deadlines in the case, including proceeding with any scheduled trial or hearings; and (iv) be served on all parties. The moving attorney should file the notice of substitution through CM/ECF. The withdrawing attorney will remain attorney of record until this deficiency is corrected. See Local Rule 5.2(c). (Collins, S.)
I'm not even a lawyer and I know that the first thing you should be doing when filing documents is understanding the (often detailed and arcane) local rules before filing any documents. The court is already not happy with Liebowitz in this case, and that doesn't seem likely to change any time soon.At this point, you kind of have to wonder who the hell still thinks it's worth hiring Richard Liebowitz? There are plenty of good copyright lawyers out there. Ones who have not been frequently sanctioned by courts for doing things "no reasonable lawyer" would do.
Even more alarming news has surfaced about Amazon's Ring doorbell/camera and the company's ultra-cozy relationship with police departments.Since its introduction, Ring has been steadily increasing its market share -- both with homeowners and their public servants. At the beginning of August, this partnership included 200 law enforcement agencies. Three months later, that number has increased to 630.What do police departments get in exchange for agreeing to be Ring lapdogs? Well, they get a portal that allows them to seek footage from Ring owners, hopefully without a warrant. They also get a built-in PR network that promotes law enforcement wins aided by Ring footage, provided the agencies are willing to let Ring write their press releases for them.They also get instructions on how to bypass warrant requirements to obtain camera footage from private citizens. Some of this is just a nudge -- an unstated quid pro quo attached to the free cameras cops hand out to homeowners. Some of this is actual instructions on how to word requests so recipients are less likely to wonder about their Fourth Amendment rights. And some of this is Ring itself, which stores footage uploaded by users for law enforcement perusal.If it seems like a warrant might slow things down -- or law enforcement lacks probable cause to demand footage -- Ring is more than happy to help out. Footage remains a subpoena away at Ring HQ. And, more disturbingly, anything turned over to police departments comes with no strings attached.Statements given to Sen. Edward Markey by Amazon indicate footage turned over to cops is a gift that keeps on giving.
Police officers who download videos captured by homeowners’ Ring doorbell cameras can keep them forever and share them with whomever they’d like without providing evidence of a crime, the Amazon-owned firm told a lawmaker this month.
Brian Huseman, Amazon's VP of Public Policy, indicates the public is kind of an afterthought when it comes to Ring and its super-lax policies.
Police in those communities can use Ring software to request up to 12 hours of video from anyone within half a square mile of a suspected crime scene, covering a 45-day time span, Huseman wrote. Police are required to include a case number for the crime they are investigating, but not any other details or evidence related to the crime or their request.
Ring itself maintains that it's still very much into protecting users and their safety. Maybe not so much their privacy, though. The company says it takes the "responsibility" of "protecting homes and communities" very seriously. But when it comes to footage, well… that footage apparently belongs to whoever it ends up with.
Ring… "does not own or otherwise control users’ videos, and we intentionally designed the Neighbors Portal to ensure that users get to decide whether to voluntarily provide their videos to the police.”
It's obvious Ring does not "control" recordings. Otherwise, it would place a few more restrictions on the zero-guardrail "partnerships" with law enforcement agencies. But pretending Ring owners are OK with cops sharing their recordings with whoever just because they agreed to share the recording with one agency is disingenuous.Ring's answers to Markey's pointed questions are simply inadequate. As the Washington Post article notes, Ring claims it makes users agree to install cameras so they won't record public areas like roads or sidewalks, but does nothing to police uploaded footage to ensure this rule is followed. It also claims its does not collect "personal information online from children under the age of 13," but still proudly let everyone know how many trick-or-treaters came to Ring users' doors on Halloween. And, again, it does not vet users' footage to ensure they're not harvesting recordings of children under the age of 13.The company also hinted it's still looking at adding facial recognition capabilities to its cameras. Amazon's response pointed to competitors' products utilizing this tech and said it would "innovate" based on "customer demand."While Ring's speedy expansion would have caused some concern, most of that would have been limited to its competitors. That it chose to use law enforcement agencies to boost its signal is vastly more concerning. It's no longer just a home security product. It's a surveillance tool law enforcement agencies can tap into seemingly at will.Many users would be more than happy to welcome the services of law enforcement if their doorbell cameras captured footage of criminal act that affected them, but Ring's network of law enforcement partners makes camera owners almost extraneous. If cops want footage, Ring will give it to them. And then the cops can do whatever they want with it, even if it doesn't contribute to ongoing investigations.These answers didn't make Sen. Markey happy. Hopefully, other legislators will find these responses unsatisfactory and start demanding more -- both from law enforcement agencies and Ring itself.
It's a small win for the plaintiff -- probably less than $100 in total -- but it's a bigger win for the residents of Portland, Oregon. The Multnomah County Court says the city has been routinely overcharging public records requesters for fulfilling routine public records requests. (via Merrick Law, LLC)The brief ruling [PDF] contains enough detail to show how city employees inflated costs they passed on to requesters who were made to pay up front before document searches would commence. In this case, the requester (Alan Kessler) sought metadata from four government email accounts. The city first gave him an estimate of $205.61, based on an estimated two hours of search and prep time with a 39% markup for "overhead costs."As the court notes, the city admitted the overhead costs collected rarely went to cover employee overhead. On top of that, the hourly rate used was calculated using the hourly wages of the employees performing the search. This sounds reasonable, but it actually isn't. In this case, the search was performed by two of the city's higher-paid employees, both of whom appear to be overqualified for the work they'd been tasked to do.
Mike Nichols, an Information Systems Technical Analyst V, conducted the search of relevant email accounts. The City's estimate for Nichols wage rate was $78.15 per hour. This rate was incorrect. The actual wage rale plus 39% should have been $66.09 per hour. Nichols' actual time billed for the search was 1.25 hours. Nichols' time record attributed 1 hour to the search.[...]Paul Rothi, the City Enterprise Architect Manager, conducted the oversight and record keeping at a rate of $91.92 per hour for 0.5 hours, Rothi's records show the time he billed to plaintiff's request totaled 37 minutes, rather than 30.
Once this search was completed, it was handed off to a third person. This person, the city's Public Records Coordinator, did everything but coordinate public records once she received the request. First, she added another 2.5 hours to the estimate, raising the cost by $106. Then she devoted her partial attention to it over the next month while suffering an illness, attending a funeral, and spending six days covering someone else's job.As the court notes, this estimate process has almost nothing to do with actual costs and artificially inflates them by handing the job over to some of the city's highest-paid employees.
Here, the City presented testimony and evidence of the hourly rates (including the 39% mark-up for benefits) for two employees involved in responding to plaintiff's public records request along with the City's fee schedule established by City ordinance. The City also presented testimony that no study had been done relating to the fees charged by the Bureau of Technology Services, rather the City occasionally brought in consultants to review rates and overhead costs.Rothi testified that when preparing an estimate for a public records requester, he prepared a "worst case" estimate. Rothi and Nichols are two highly paid members of the BTS department. The City presented no evidence of the rates charged for other members of the department who may have been available to conduct the records search. The City presented no evidence of the rates charged for Baribeau's records review.
The city argued this was okay because it gave refunds to requesters who had been overcharged. But the court points out that there's actually no mechanism in place to challenge fee assessments or demand refunds. Requesters just have to hope the city is being honest in its assessment of costs and that they will see a refund check if the city decides it has overcharged a requester.Since this request resulted in litigation, there's no reason to believe the city reviews request fees it has collected and issues refunds voluntarily. The plaintiff was refunded $52.00, but this happened more than a month after he filed his lawsuit. That appears to have been the motivating factor.That's not nearly good enough, the court says. The city needs to change the way it assesses fees and handles refunds. The order gives the city a list of things to correct while blocking it from overcharging for routine document searches in the future.
The City's current method for determining fees for routine email and document search, including providing a "worst case estimate" IS NOT reasonably calculated to reimburse it for its actual cost of making the records available and results in overcharging the public records requester without providing a method to refund of any overcharges.The City is hereby enjoined from charging excessive fees for routine email and document searches.The City must recalculate the time spent responding to Plaintiff's public records request at the lowest hourly rate charged by any department personnel who could be responsible for responding to public records requests, plus any overhead factor, and refund Plaintiff the difference, if any, over and above the $52.00 already refunded to Plaintiff.
The city is also responsible for part of the requester's legal fees since he partially prevailed in his lawsuit. The final total won't be in the thousands of dollars, but this small win for Kessler is a bigger win for other Oregonians. The city can't continue to hand public records work to people at the top end of the wage scale and assume that follows the spirit and letter of the law.Excessive fees deter requesters -- something that only benefits governments opposed to accountability and transparency. Deterrence may not have been the goal here, but it's a fortunate side effect. Now that option is gone, at least for public records requests determined to be "routine."
In our ongoing discussions about the new platform wars going on between Steam and the Epic Store, perhaps we've been unfair to another participant in those wars: EA's Origin. Except that no we haven't, since Origin is strictly used for EA published games, and now EA is pushing out games on Steam as well. All of which is to say that Origin, somehow, is still a thing.Enough of a thing, actually, for EA to have tried to do something beneficial around Cybersecurity Month. For Origin users that enabled two-factor authentication on the platform, EA promised to reward those users with a free month of Origin Access Basic. That free month would give those that had enabled better security on their accounts access to discounts on new games and downloads of old games. Cool, right?Well, sure, except that the method by which EA decided to make good on its promise basically scared the shit out of a whole bunch of people.
This morning at around 3am, jolted awake by an antsy newborn, I rolled over to check my email and was alarmed to see a message from EA with the subject: “You’ve redeemed an Origin Access Membership Code.” Goddamnit, I thought. Did someone hack me? Turns out it was just EA starting off everyone’s day with a nice little scare.
The email thanked the user for redeeming the access code without mentioning as a reminder that any of this was tied to enabling 2FA last month. It looked for all the world like any other purchase confirmation from Origin does. This sent a whole bunch of people scrambling, assuming their accounts had been hacked. Then those same people jumped on Twitter, either recognizing that this scare was a result of EA's crappy communication, or else not realizing that and asking all of Twitter what to do now.That all of this came as a result of a Cybersecurity Month initiative was an irony not lost on the public.
Ironically, this email came as the result of an EA initiative to reward users of its PC platform with more security. Last month, EA quietly announced that Origin users with two-step verification enabled (in honor of “National Cybersecurity Month”) would get a free month of Origin Access Basic, which offers discounts and access to a bunch of old games. This was them making good on that promise.Now if only “making good” hadn’t also equated to “scaring the hell out of users into thinking they’d been hacked and might have even lost all of their progress in Star Wars Jedi Fallen Order and had to start from scratch just like their buddy Kirk did.” Telling people that they’ve redeemed a code out of the blue is a good way to get them to immediately freak out and change all their passwords, especially in a world where just about every company (EA included) has been the target of a massive security breach.
EA: where even when the company tries to do something nice and good, it just ends up scaring the shit out of everyone.
Karl Bode had a nice write up earlier this week about the ongoing issues with Stadia, Google's play to get gamers to give up their home consoles and GaaS (Game as a Service). As Karl noted, Stadia faces inherent challenges in these United States, given the laughably substandard broadband resulting from full regulatory capture at the hands of a few telecom players. In addition, Google, with all of its resources, seems fully committed to punishing early adopters with a big price tag for what is essentially a public beta alongside some reports of failed hardware deliveries. So big price tag, maybe you get what you bought in order to use the streaming service, and maybe that streaming service works with your broadband connection. Cool.Well, it looks as though Google is going for some kind of failure trifecta here, as reports are now surfacing that there was a SNAFU with how access to the streaming site itself is being granted, with pre-payers being promised admittance in order of purchase, while in reality access to the service is being granted without any sense of order.
“Anyone else wake up disappointed,” reads a post on the Stadia subreddit, where early adopters have spent the last 24 hours sharing their hopes, dreams, and frustrations with the service’s messy launch. While some who pre-ordered Stadia’s Founders Edition received their controller, Chromecast Ultra, and membership info yesterday, others are still waiting, either for their order to ship, for emails with instructions for setting up their account, or both.“We’re aware that some of you who pre-ordered Founder’s Edition may not have received your invite codes in the expected time-frame,” said a Stadia community manager on the subreddit yesterday. In a subsequent update that evening, the Google representative said the problem was fixed. “We’ve identified an issue where a small fraction of Stadia access codes were sent out of order,” they said. “That has been addressed.”
On its own, is this the biggest deal? Not really. New product launches are messy. Still, this is but one aspect of a larger shitty rollout of a product that Google has been hyping for some time now. Given the emphasis on Stadia, it's not hard to draw analogies to the rollout of Obamacare and that site's failures at the time. By that I specifically mean the impact such a botched rollout will have on the trust that is absolutely required by the public in order to be willing to buy into this product to begin with.That's because, when it comes to the gaming industry, an orderly, easy access to desired games is the one thing you cannot screw up with your product. And it's the one thing that Stadia's rollout appears to have fumbled. In a world used to playing games on home consoles that generally, you know, work, having a streaming service try to pry that status quo away while demonstrating the exact dangers of relying on gaming as a service is the one thing that couldn't happen. But here we are.
People who are still waiting on codes have latched onto a July 18 comment made by Stadia’s director of product, Andrey Doronichev, saying reservation emails would be sent out in the order pre-orders were received. But some users on the subreddit who pre-ordered in September have already received their shipment confirmation and registration emails while others who pre-ordered in June haven’t. Even if it’s only a very small number of people who are affected, the mixup has left a bad taste in many people’s mouths.“My order has still not been shipped,” Reddit user Gamesearch56, who pre-ordered Stadia on June 8, told Kotaku in an email. If I don’t receive my code till friday, because i would use stadia on a family trip with my laptop, I will cancel my preorder. So disappointed in the whole launch.”
As stated, Google obviously has a ton of resources and marketing power. Still, this the kind of launch that can be really, really difficult to overcome.
New York City taxpayers spent a whopping $230 million to pay off 6,472 lawsuits settled against the NYPD in the last fiscal year, according to an annual report released Monday by Comptroller Scott Stringer’s office.The amount reflects settlements made from July 2017 through June 2018, and marks a 32% decrease from the prior year, when the city paid out $335 million for lawsuits against the police department.
This is the work of New York's Finest -- a police department that figures it's the FBI, CIA, and NSA rolled into one. When not bumptiously interloping as the East Coast wing of Team America World Police, the NYPD is busy back home violating rights and blowing off public records requests.The department is infamous for its suspicionless surveillance of Muslims, its suspicionless searches of hundreds of thousands of young black men, and the occasional homicide.The NYPD's spokeswoman apparently has only read the parts of the report she likes. Sgt. Jessica McRorie says the 32% reduction in claims shows the NYPD is serious about deterring officer misconduct. But the overall drop in claims is counteracted by the NYPD's 100% increase in police misconduct settlement payments over the past decade.
Roughly $108 million was related to allegations of police misconduct like false arrests and excessive force, more than doubling the $48 million paid out for such issues a decade ago.
No matter what spin is applied, the numbers speak for themselves. Since the middle of 2017, the city has paid out a half-billion dollars in settlements in lawsuits against the NYPD. The spokeswoman's cheery spin on $233 million in settlements as an indication of officers behaving $100 million better than last year doesn't say much about the force in general.Granted, the amount of settlements will never reach $0, no matter the length of the timeline. But if the NYPD is serious about reducing misconduct and improving its relationship with the public, it can't keep allowing things like this:
[Peter] Valentin, a hard-charging Bronx narcotics detective whose online handle is "PistolPete," has been sued a stunning 28 times since 2006 on allegations of running slash-and-burn raids that left dozens of lives in ruins while resulting in few criminal convictions.The city has paid out $884,000 to settle cases naming the stocky, 36-year-old detective, but he doesn't seem too concerned."I'm not aware of that," he scoffed at a Daily News reporter when told of his claim to shame. "Once it goes to court, I don't follow it."
This 2014 report showed 55 NYPD officers have been sued 10 or more times. If Valentin's shrug of indifference is indicative of the NYPD's collective mindset, lawsuits are no deterrent to misconduct. And neither are NYPD officials, even when they're claiming otherwise when issuing statements or holding press conferences. The same people who defend misconduct by saying it's just "bad apples" are the same people refusing to remove the bad apples from the barrel.Being a repeat offender is bad news in every part of the criminal justice system except the component that initiates the process. Three strikes laws proliferate, exponentially increasing sentences for criminal violators. Meanwhile, those policing the streets are barely policed at all. Those that do manage to create enough headaches for their departments that they're terminated can usually find steady law enforcement work at another agency.The message being sent to the public by the NYPD isn't the one its spokesperson is offering. It's actually saying it doesn't care how much of the public's money it has to spend to keep bad cops employed.
Portable alcohol testing equipment (a.k.a. breathalyzers) have been called "magic black boxes" and "extremely questionable" by judges. And yet, they're still used almost everywhere by almost every law enforcement agency. They're shiny and sleek and have knobs and buttons and digital readouts, so they're not as immediately sketchy as the $2 drug-testing labs cops use to turn donut crumbs into methamphetamines. But they're almost as unreliable as field drug tests.Even when the equipment works right, it can still be wrong. But it so very rarely works right. Cops buy the equipment, then do almost nothing in terms of periodic testing or maintenance. A new report from the New York Times shows this equipment should probably never be trusted to deliver proof of someone's intoxication. And the failure begins with the agencies using them.
The machines are sensitive scientific instruments, and in many cases they haven’t been properly calibrated, yielding results that were at times 40 percent too high. Maintaining machines is up to police departments that sometimes have shoddy standards and lack expertise. In some cities, lab officials have used stale or home-brewed chemical solutions that warped results. In Massachusetts, officers used a machine with rats nesting inside.
There are also problems with the machines themselves, even when they've been properly maintained. And the problems aren't limited to single manufacturer. Dräger, the company that owns the name "Breathalyzer," produced a machine that experts said with "littered with thousands of programming errors." This finding was made during a rare examination of breath-testing equipment by defense attorneys granted by the New Jersey Supreme Court. Those findings resulted in zero lost law enforcement customers for Dräger.CMI's breath tester fared no better when examined by toxicology lab experts. CMI's Intoxilyzer gave inaccurate results on "almost every test," according to the report. This didn't stop multiple law enforcement agencies from purchasing CMI's tech, even when a Florida court had this to say about the Intoxilyzer.
The Intoxilyzer 8000 is a magic black box assisting the prosecution in convicting citizens of DUI. A defendant is required to blow into the box. The defense has shown significant and continued anomalies in the operation of the Intoxilyzer 8000’s operation. The prosecution argues most of the tests do not show anomalies. In fact, a high percentage of the tests may show no anomalous operation. That the Intoxilyzer 8000 mostly works is an insufficient response when a citizen’s liberty is at risk.
In the state of Washington, state police spent $1 million on Dräger breath testers to replace aging machines. Rather than roll this out in a controlled fashion with proper testing, state officials opted to bypass outside testing of the software to speed up deployment to police officers. Six years after this speedy rollout, the device's reliability was called into question in court. The court allowed defense lawyers to review the software. The result of this testing was never made public… at least not officially. The experts who reviewed Dräger's equipment had this to say about it:
The report said the Alcotest 9510 was “not a sophisticated scientific measurement instrument” and “does not adhere to even basic standards of measurement.” It described a calculation error that Mr. Walker and Mr. Momot believed could round up some results. And it found that certain safeguards had been disabled.Among them: Washington’s machines weren’t measuring drivers’ breath temperatures. Breath samples that are above 93.2 degrees — as most are — can trigger inaccurately high results.
Dräger sent the researchers a cease-and-desist order, forbidding them from discussing their findings with anyone and demanding they destroy all copies of their report. Unfortunately for the company, the preliminary report had already been distributed to other defense lawyers and made its way to a number of websites.The rush to deploy equipment wasn't just a problem in Washington. The same thing happened in Colorado, but the rollout was even more haphazard and borderline illegal. There weren't enough techs available to set up the purchased equipment, so the manufacturer (CMI) sent a salesperson and one of its lawyers to help with the initial calibration and certification. Only one actual lab supervisor was involved. The rest of the workforce was composed of assistants and interns. At best, one person was qualified to do this job. Since this seemed likely to pose a problem down the road if the equipment or readings were challenged in court, the state lab used an extremely-questionable workaround.
[T]he lab’s former science director said in a sworn affidavit that her digital signature had been used without her knowledge on documents certifying that the Intoxilyzers were reliable. The lab kept using her signature after she left for another job.
In Washington, DC, faulty equipment wasn't taken out of service by the person overseeing the program. Instead, the person meant to ensure the equipment was working properly was making everything worse when not acting as a freelance chemist.
Mr. Paegle’s predecessor, Kelvin King, who oversaw the program for 14 years, had routinely entered incorrect data that miscalibrated the machines, according to an affidavit by Mr. Paegle and a lawsuit brought by convicted drivers.In addition, Mr. Paegle found, the chemicals the department was using to set up the machines were so old that they had lost their potency — and, in some cases, Mr. King had brewed his own chemical solutions. (Mr. King still works for the Metropolitan Police Department. A department spokeswoman said he was unavailable for comment.)
Once the courts were informed, 350 convictions were tossed. The damage here was relatively minimal. In Massachusetts -- where crime lab misconduct is an everyday occurrence -- 36,000 tests were ruled inadmissible. In New Jersey, 42,000 cases were affected by breath test equipment that had never been set up properly.Very few corrective measures have been implemented by law enforcement agencies. The fixes that are being made have almost all been the result of court orders. The unreliability of roadside breath tests have led several courts to reject pleas or prosecutions based solely on tests performed by officers during traffic stops. But none of this seems to have had an effect on law enforcement agencies who continue to purchase unreliable equipment and deploy it with proper safeguards or testing.Breathalyzers are field tests in more than one sense of the word. Drivers are merely lab rats who face the possibility of losing their freedom, their licenses, and possibly their vehicles because a "magic black box" told a cop the driver was under the influence.
There have been plenty of stories that have made the rounds over the years arguing that Google/Facebook have "killed" the journalism business by sucking up all the advertising revenue. In the past, I've pointed out how silly and tiresome this argument can be, and certainly looking through the data, it simply does not support the narrative. Instead, it appears that the success of Google and Facebook is much more a scapegoat for the legacy news business' own failure to adapt to a rapidly changing marketplace -- one in which their previous competitive advantage (limited competition within a geographical region) was completely eroded.That said, even understanding that properly doesn't answer the question of how one can actually save the journalism business, which has faced a huge variety of challenges over the last couple of decades. Lydia Polgreen, writing for the Guardian, has an interesting proposal that argues that the big internet platforms can both save journalism and deal with their big misinformation problems in one single move, by throwing a huge sum of money at journalism organizations. Among other things, she compares the rise of misinformation and the collapse of journalism to the impacts of industrial pollution, and suggests that internet companies could create a parallel to how businesses have now begun focusing on sustainability programs regarding environmental impact. Except, instead of dealing with things like carbon emissions, they could help deal with the pollution of misinformation via funding journalism efforts:
Just as companies decarbonize their businesses, they should think carefully about how they contribute to the destruction of our information ecosystem and choose to reach consumers on platforms that slow rather than increase the pace of information ecosystem collapse.I am not suggesting anyone must immediately abandon Facebook or Google advertising platforms. But I do propose an experiment. What if the chief marketing officer of every major corporation set aside a substantial chunk of their marketing budget and devoted it to high-quality news? Of the $130bn devoted to digital advertising, set $50bn aside for news.
She argues that both the platforms and their advertisers might benefit from this sort of program:
Advertisers love these platforms for the same reason industrialists love carbon-based energy: it provides powerful, measurable fuel for their businesses. But increasingly they are becoming wary of these platforms because they are full of disinformation, fraud and abuse. Just as companies are weaning themselves from substances that pollute our air, water and lands, companies should wean themselves from platforms that are destroying our information ecosystem. It's just good business.
I'm not convinced that equation adds up as neatly as Polgreen thinks, though -- and I'm certainly not convinced that there's a direct correlation between funding more journalism and ending disinformation. They may be loosely related, but the willingness of many to simply buy into mis- and disinformation suggests something more fundamental at stake.As someone who runs a company that has a foot squarely planted in the journalism space, the business side of my job responsibilities certainly would love to see a massive, many-billion dollar pot appear out of thin air to fund more journalism. However, I still would worry about the downstream consequences of such a fund. For all the (often misleading or misunderstood) talk about how some of these tech giants "fund" various projects, and how that biases them, wouldn't this just set off that concern at a much, much higher level? Would people be confident that there would be valuable investigative journalism about the tech giants if those companies held the keys to a $50 billion pot of gold? I think there would be reasonable concerns about the incentive structure. Along those lines, there would be similar concerns just in determining who gets access to those funds. Who chooses? And if you think the fights about "bias" are bad now, just wait until "pick ideological news source of your choice" doesn't get any of the funding, or gets a smaller amount than a rival news source with a different ideological basis.Now, it's entirely possible that some of this could be sorted out. You can sketch out plans for some sort of "independent foundation" that would make the decisions, with some sort of guarantees that keep it free from interference over a long period of time.But, my biggest concern about such a plan is that it is fundamentally a band-aid to cover up a wound, rather than looking for a true, sustainable solution to funding journalism as a whole. Indeed, this entire plan seems premised on the idea that the big tech companies of today are locked in place, and will continue being the big tech companies of the future. What's the mechanism for the next big tech companies to be pressured into joining this effort? And what happens when -- inevitably -- some of the companies start to falter. What's the mechanism for them to remove themselves from coughing up a huge chunk of their revenue to journalism?While this is a different and ambitious plan, it seems to create many more questions than it answers and, most importantly, does little to deal with the fundamental and structural issues that have knocked the foundation out from under traditional journalism funding.
Earlier this month, we discussed how DirectTV was one cable operator the Colarado Attorney General is investigating over how it extracts varied and confusing fees from customers and more specifically how DirectTV managed to continue charging customers for a regional sports station that had been blacked out. The overall tenor of the post was, first, that cable operators charging fees in as confusing a manner as possible is par for the course and, second, that even in that landscape continuing to charge customers for a channel it wasn't offering sure felt like a bridge too far.Well, apparently the folks over at DirectTV were listening in on our post and decided to email us with a statement. That statement said first that, by the time the story posted, the broadcaster had come to terms and was back on the air. Second came a claim that refunds had been issued... if customers specifically asked for one.
We are thrilled to once again provide our Colorado sports fans the ability to enjoy the NBA Denver Nuggets, NHL Colorado Avalanche, University of Denver Pioneers, MLS Colorado Rapids, National Lacrosse League Colorado Mammoth and other sports. We issued credits to thousands of our customers who asked about Altitude Sports while we worked toward getting it back on air. Customers who have questions about credits should visit tvpromise.com.
Let's first allow this to act as something of a PSA: if you're a DirectTV customer in Colarado with a subscription that includes Altitude Sports, go ask for your refund. You apparently have to, otherwise DirectTV will happily keep your money.Which, given how cable television invoices look less like a ledger and more like word-and-number jumble, likely means that a whole bunch of people didn't realize what they were being charged for, didn't realize that Altitude was in their package, and therefore didn't realize that they were owed a refund, and so didn't ask for one. In which case DirectTV keeps that money for a channel it wasn't providing... and now wants credit for that? Interesting stance on ethics you folks have there.What this really highlights is how cable operators construct their packages and invoices as though they were building ciphers to keep the Nazis from knowing where the troops were headed. Fix that and perhaps you'd have better informed customers who might ask for their refunds. Or, you know, DirectTV could do the refunds regardless of a request.
As we noted last week, there's a laundry list of potential issues plaguing Google's attempted entry into the game streaming space via Google Stadia, not least of which is the US' substandard broadband networks and arbitrary broadband caps. Stadia eliminates the physical home game console and instead moves all game processing to the cloud. And while it's clear that this is the inevitable path forward and somebody is going to eventually dominate the space, there's no solid indication yet that it's going to be Google.Initial Stadia shipments went out this week (some anyway, many orders never shipped), and so far the press response has been a large, collective, "meh." Most reviews cite a fairly pathetic launch lineup filled with titles that were first released years ago. And while the service works in ideal conditions on good broadband lines, the $120 entry fee (plus $10 subscription cost) is being derided as largely a public paid beta:
"There's no reason anyone should buy into Stadia right now. Google has made sure of that, partly by underdelivering at launch and partly with a pricing scheme that sees you paying three times (for hardware, for the service, for games) just to be an early adopter.But the nice thing is that no one's forcing you to, either. Early adopters know who they are, and they'll hopefully be subsidizing a better experience for the rest of us while helping Google work out the kinks. The technology works reasonably well, and Google's gadgets can all be automatically updated over the air."
"This is by design, of course. That 1TB data cap is targeted primarily at people like me, who have cut the cord and now get their entertainment through a collection of streaming services. Of course, Xfinity allows me to have unlimited data if I pay an additional $50 a month, which isn't something I do because my overages tend to only be in the realm of $10-$20 a month when I happen to go over."
I remember being pitched on the idea of game streaming way back in 2001 at E3, so it's great to see the progress these efforts have made. But it remains abundantly clear that game streaming is going to be a work in progress for the better part of the next 5 years, and a continued headache in parts of the country where limited broadband competition has resulted in slow speeds and unnecessary restrictions. There are also other questions related to a shift to game streaming (like how do you preserve game history when the consumer has no ownership rights and doesn't own anything?) that will need to be hammered out in time.Meanwhile, Sony and Microsoft, which both have new high-powered game consoles launching next year (hand in hand with their own streaming alternatives) likely have nothing to worry about. We're still years away from game streaming being a consistent and popular affair, and the competition to dominate the space remains wide open, thanks in no small part to Google's fairly underwhelming Stadia launch and US telecom dysfunction.
While Netflix's Narcos has certainly been a hit show for the streaming platform, it's still a bit surprising that there has been so much intellectual property strife surrounding the show. To date, the most notable IP dispute has been Pablo Escobar's brother's attempt to sue Netflix for one billion dollars. As Netflix was having Narcos actors pretend to threaten to shoot the public for pirating the show, Roberto Escobar was busy making no headway with his lawsuit, eventually dropping it.But another lawsuit had been filed against Narcos as well, by a famous Colombian journalist who had a years-long affair with El Jefe. Virginia Vallejo wrote about her time with Escobar and the affair she had with him in a memoir, scenes from which were depicted in the Netflix series. She went on to claim that such depictions constituted copyright infringement. Unfortunately for her, a Miami judge ruled for Narcos producers on summary judgement, finding that the Netflix show had depicted only facts that were similar to Vallejo's accounts, while the rest of the depictions in two scenes the journalist calls out were not substantially similar to her retelling in her book.The ruling itself is a rather, ahem, steamy read as far as these things go. The reason for that is that one of the scenes in question is a bedroom scene involving a revolver being used in new and creative ways.
Defendants argue that the only similarities are: (1) Plaintiff is blindfolded with a black blindfold; (2) Escobar uses a gun to caress her neck and chest while speaking in a menacing tone; and (3) she appears aroused. Defendants maintain that these similarities are not protectable because they are nothing more than facts; merely because Plaintiff’s Memoir was the first time that these facts were made public does not make them protectable.Plaintiff contends that there are additional similarities, including the elegant bedroom, thatboth Plaintiff and the Velez character are bound to furniture, Plaintiff and Velez are at the mercy of Escobar, Escobar engages in aggressive banter with Plaintiff and Velez and both respond in a submissive manner, Plaintiff and Velez are not afraid of Escobar, Escobar grabs both by the hair,Escobar touches their bare skin with a gun as sexual foreplay, and Plaintiff and Velez throw their heads back sighing and moaning with pleasure. However, comparing Plaintiff's Memoir and the Narcos Revolver Scene establishes that not all of these similarities actually exist and the similarities that do exist are ideas and facts.
The second scene in question is ruled on in the same way. Essentially what's happening here is that Vallejo claims that Netflix's depiction is so similar to her account in her book that it's copyright infringement. Netflix does not argue that copying didn't occur, but claims all examples of copying were of factual information, buttressed by Vallejo's claims that the accounts in her book are all factually true. The rest of the makeup of the scenes, the staging, scenery, exact dialogue, and feel of the scene all contain substantial differences with Vallejo's book.It's hard to see how the world could operate had the court ruled any differently. Is the expectation that an artistic work telling the story of an historical figure can't retell the factual occurrences surrounding that figure if some third party already put those facts down in a book somewhere? Were that the case, depictions of historical figures could almost certainly not exist.
The trickle of "Brady lists" continues, further enraging New York City's police unions. The last batch of cops considered too dishonest or crooked to be called on to testify in court led the Sergeants Benevolent Association to claim the Bronx DA's release of its "naughty list" was an attempt to "smear honest, hardworking cops."It was a super-strange claim to make about cops that were too dishonest to be allowed in court, suggesting the SBA felt misconduct and perjury were just part of everyday police work. It's a stretch to call a list of cops even prosecutors don't trust a smear attempt. These reputations are already besmirched. The only difference is that the public now knows, rather than just Bronx prosecutors.Another list of bad cops has been released to Gothamist. This one comes courtesy of a public records request sent to the Brooklyn DA's office.
Brooklyn prosecutors, complying with a Freedom of Information Law request from Gothamist/WNYC, have released the names of dozens of officers whose credibility has been called into question.[...]The list includes 53 cases, some of which are sealed, between 2008 and 2019 in which officers had their testimony discredited or called into question by state and federal judges.
Unlike the release by the Bronx DA, no officers' names have been redacted, allowing Gothamist to retrace the shady footsteps of some of the officers listed in the document [PDF]. Some have already been named in multiple lawsuits. Others have had their truthfulness questioned by judges during prosecutions as their testimony diverged from official reports and narratives under judicial examination.The list given to Gothamist appears to be more complete than other versions given to Brooklyn defense lawyers, suggesting the DA's office hasn't been completely forthcoming about bad officers in the past.The DA's office also tried to get out ahead of the unavoidable police union blow-back by stating this release was not an "indictment" of "thousands of dedicated officers." It's a bad apple list, in other words. But this wasn't enough to prevent the head of the SBA from issuing another nonsensical statement.
Ed Mullins, President of the Sergeants Benevolent Association, said the DA's priorities are misplaced. “The Brooklyn DA has a long history of bad prosecutions,” Mullins said. “What are they going to do about that? It’s hypocritical.”
I guess whataboutism will have to do in lieu of a real argument.Even though this list is one of the more complete lists released to the public, it's still not everything. The DA's office withheld a bunch of documents that detailed further misconduct by additional officers the DA won't be allowing anywhere near a courtroom.
Citing the controversial state statute 50-a, which shields police misconduct records, and a consultation with the city’s Law Department, the Brooklyn prosecutors declined to release another list, containing Civilian Complaint Review Board complaints, NYPD Internal Affairs Bureau records, and other credibility findings by judges and Brooklyn prosecutors themselves. The DA said that list includes “attorney notes” and other records it considers to be forms of work product.
OK. Just redact/remove the "work product" and release everything else. Seems like a workable solution, even if it's going to result in there being far more than 53 cops on the shit list. Untrustworthy cops being relied on to put people in jail is enough of a "public interest" that it should overcome the office's presumption of opacity.It's not just the cop testifying against you in court. It's the cops that arrested you, booked you, and helped create the official narrative. There are plenty of enablers just as unworthy of trust as the cops that made the final cut on the DA's "naughty list." They shouldn't be shielded from public scrutiny just because their misconduct overlaps their personnel records. Unfortunately, state law covers up for bad cops with this exemption and it's unlikely the multiple, very vocal, and very powerful police unions in the state will ever allow this to be taken off the books.Still, it's a positive step forward for accountability. Prosecutors have almost always sided with cops by refusing to release these lists to the public. Many go further, refusing to create the lists in the first place, ensuring their prosecutions aren't impeded by judges or defendants questioning the honesty of the officers on the stand.
The Fourth Circuit Court of Appeals has denied immunity to a cop involved in a no-knock raid that left the raided house's resident, Julian Betton, paralyzed. This case was touched on briefly in a previous post discussing legal arguments made by law enforcement officers that attempt to portray people in their own homes as dangerous aggressors when police crash through their doors unannounced.In this case, South Carolina police officer David Belue's legal rep tried to tell the court Betton's response to a bunch of heavily-armed men rushing through his door -- grabbing a gun and moving into the hallway from the bathroom -- created a situation where Betton deserved every bullet fired at him by officers. In other words, if Betton didn't want to get shot, he shouldn't have been in his own house when it was invaded by officers who never informed him they were police officers.Here's a recap of the events leading to the lawsuit, from the Fourth Circuit's decision [PDF]:
In the afternoon of April 16, 2015, a team of plain-clothed law enforcement officers armed with “assault style rifles” used a battering ram to enter Julian Ray Betton’s dwelling to execute a warrant authorizing a search for marijuana and other illegal substances. The officers did not identify themselves as “police” or otherwise announce their presence before employing the battering ram. From the rear of his home, Betton heard a commotion but did not hear any verbal commands. Responding to the tumult, Betton pulled a gun from his waistband and held it down at his hip.Three officers, including Myrtle Beach, South Carolina police officer David Belue, fired a total of 29 shots at Betton, striking him nine times. Betton suffered permanent paralysis resulting from his gunshot wounds.
This shooting was immediately followed by a bunch of lies. Officer Belue first claimed Betton fired his gun at officers. The ensuing investigation showed Betton's weapon was never fired. Faced with this direct contradiction of his statement, Officer Belue revised his, claiming Betton pointed his gun at officers. According to Betton, he never got the chance to point a gun at anyone. The moment he appeared with his gun, officers opened fire.Officers also lied about their entrance to Betton's home. They claimed they knocked and announced their presence. Betton's surveillance camera told the real story. Nine seconds elapsed between the officers' arrival on Betton's lawn and their entrance into his house. None of the officers present appeared to announce anything before bashing down his door and swarming inside.
Officer Belue also initially had asserted that the agents had knocked on Betton’s door and announced their presence, and had waited before forcibly entering the home. However, footage from the video cameras on Betton’s front porch showed that the officers had not knocked on the door or announced their presence, and had not waited any length of time before using the battering ram to gain entry.To the contrary, the video recordings showed that the officers ran up the front steps and immediately began using the battering ram. Moreover, Garcia confirmed that the officers did not announce that they were law enforcement personnel before entering the home. The record before us also contains a statement from a former DEU agent, who related that the DEU agents “almost always forcibly entered [residences] without knocking and announcing” their presence.
Despite this -- and despite inverting the Castle Doctrine to say its the invaders of a home who need protection from the home's occupants -- Officer Belue still sought qualified immunity. The district court denied his request, pointing to the facts still in dispute, as well as the officer's actions.
Regarding Betton’s unlawful entry claim, the magistrate judge found that the officers had not knocked or announced their presence before entering, and that there were no exigent circumstances warranting abandonment of the “knock and announce” procedure. The district court adopted the magistrate judge’s recommendation to deny qualified immunity on the unlawful entry claim, and Officer Belue has not challenged this ruling in the present appeal.With respect to Betton’s excessive force claim, the magistrate judge found that there were material facts in dispute regarding whether Betton had pointed a gun at the officers before Officer Belue fired his weapon. Thus, the magistrate judge concluded that a jury could find that Betton did not pose an immediate deadly threat to Officer Belue or others justifying the use of deadly force.
The Appeals Court sees no reason to upend this finding, especially when there's precedent on point saying actions like this clearly violate Constitutional rights.
[A]s of 2015, the law in this Circuit was clearly established that a person is entitled to be free from excessive force when the person “is on his property or in his residence, is in possession of a gun that he is not pointing at police officers, and is not given a warning or command to drop the gun before he is shot.”
Officer Belue also argued Julian Betton was so inherently dangerous it didn't matter whether officers announced themselves or ordered him to put his weapon down before opening fire. This claim basically turns Betton's mere existence into an exigent circumstance where Constitutional rights no longer apply. The Appeals Court isn't interested in advancing this terrible legal theory.
[N]o information in Betton’s criminal history suggested that he was inherently violent to a degree that the officers would have been justified in storming into his home unannounced and in firing their weapons at him when he did not present a current threat. Notably, the search warrant was based on Betton’s conduct of selling small amounts of marijuana on two occasions. And, although the informant observed security cameras and two firearms in Betton’s home, there was no evidence indicating that Betton had engaged in threatening or violent conduct toward the confidential informant.
Betton's case goes back to the district court and Officer Belue will have to face a jury if he doesn't attempt to settle this lawsuit first. Denying immunity preserves the rights of homeowners to defend themselves from unexpected intruders in their homes. Officer Belue's attempt to separate one action (his shooting of Julian Betton) from another of his actions (entering a home unannounced) is soundly rejected. Even when an officer subjectively "fears for his safety," context matters. If officers want to use the element of surprise to their advantage in no-knock raids, they can't turn around and claim residents have no right to react with alarm to armed intruders.
Earlier this week we already covered infamous and oft-sanctioned copyright troll lawyer, Richard Liebowitz, showing up in court to explain to the judge why he lied about the timing of the death of his grandfather multiple times over the course of many months as he tried to explain away why he missed a discovery conference. As we noted, Liebowitz actually showed up in court this time (good call, considering that the judge made it clear she was considering sending him to jail), and brought a lawyer with him (also a good call). He did remain out of jail, though Judge Cathy Seibel noted that she had referred the matter to the Grievance Committee, which could lead to sanctions. She also warned that her various contempt rulings against Liebowitz will require him to disclose the sanctions both to other courts and to prospective clients.At the hearing, it was mentioned that Liebowitz's newly found lawyers, had sent a letter to the judge, but that letter was not public yet. Late yesterday, the letter was finally added to the docket and I don't think I've ever seen anything quite like it. You can pretty much tell that the lawyer writing the letter, Richard Greenberg, admits, that he has just been brought into this shit show of a situation, and has decided the best strategy is to throw himself on the mercy of the court. And, apparently, Greenberg decided the best way to do this is to treat Liebowtiz as if he's a little kid who just didn't know any better that lying to a judge is a bad idea. It honestly does read like the kind of note a parent would write for a kid, so I have to admit that this little tidbit at the end of the letter puts much of the rest of it in context:
Counsel has known Richard and his family for years, even as long ago as Richard's Bar Mitzvah, and will always be available to render advice and guidance to Richard, and counsel will advise Richard to make use of this resource more often.
In other words, it sounds like Greenberg is a friend of Richard's family, and much of the letter then does read as if he's referring to a naughty kid, not an actual lawyer with years of experience. So much of the letter is quite insane, but it seems to focus on how little experience Richard actually has, such that he might not know that lying to a judge and making up excuses is a bad idea.
Richard's Background. Richard is an unmarried 31-year-old who resides with his parents in Hewlett, New York. He graduated with a BA degree in communications from the University of Pennsylvania in 2010, and with a J.D. degree from Hofstra University Law School in 2014. In 2015 he was admitted by the Second Department to the Bar of the State of New York, and in the same year he opened the Liebowitz Law Firm, located at 11 Sunrise Plaza, Valley Stream, New York, where he has practiced continuously ever since. Richard has had no other employment, experience or supervision as a lawyer.
Right. I get that Liebowitz may not know all the nuances and ins and outs of litigation and such, but the whole paragraph makes it sound like he's a dumb child, rather than a 31-year-old man with a law degree, who has been practicing before the court in a huge number of cases. And this wasn't about some sort of sophisticated nuanced issue. This was about lying to a judge. No offense, but you don't have to have a law degree to know that's a bad idea and he does have a law degree.After first making it sound like Richard is a clueless, inexperienced idiot, he then immediately claims that Richard has a growing law firm, even employing experienced lawyers, and has filed approximately 2,000 cases. So, uh, which is it? Is he a clueless, inexperienced rube, or an experienced lawyer who employs other lawyers who actually know better?
Since its opening, Richard's law practice has grown exponentially, filing approximately 2000 law suits under the federal copyright statute in the four years of his firm's existence. Moreover, because of his burgeoning practice, Richard's firm has grown commensurately; he now employs a staff of 12, two of whom are lawyers, including an associate with large commercial firm experience.
So... he does know other lawyers and has lots of experience. So, the whole "don't lie to a judge" thing is the sort of thing that maybe he should have known about? But then Greenberg reverts back to Liebowitz being an inexperienced newbie... while also insisting that he "fills a need" by filing bullshit lawsuits to shake down people for money.
In short, while Richard is short on legal experience and training, he obviously fills a need in the ranks of freelance photographers who struggle to make ends meet financially...
Greenberg later admits that he, himself, is not very experienced or knowledgeable regarding copyright law, so perhaps he doesn't know the nature of copyright trolling and the problems that trolls like Liebowitz create for tons of people. Perhaps he also doesn't know the details of how frequently Liebowitz has been called out or sanctioned by judges. But all of that seems to matter here, and chalking up his lying to a judge multiple times over many months to his "inexperience" seems... questionable at best.The letter is, at least, straightforward in admitting that Liebowitz lied to the judge, and tries to explain his possible reasons for lying, but they're not very good reasons. Hilariously, the letter says there are no excuses, but then tries to argue that Liebowitz's decision to lie is "understandable" even if (and I kid you not) he did it intentionally.
There can be no excuse for Richard's lapse, whether he stated and maintained the erroneous date of death mistakenly or intentionally. Either would be understandable. For example, Richard may genuinely have misremembered the date of death, and continued to adhere to the April 12 date or, having taken the position that the date of death was April 12, he saw no reason to question his memory or why it should matter. On the other hand, Richard may have thought the Court would not understand his dysfunctional, grieving state originating three days before the conference, and decided to fix the date of death as the morning of the conference. If the latter explanation is the correct one, Richard not only misjudged the Court's knowledge, experience and decency, no doubt as an inexperienced young lawyer might, but he engaged inexcusable falsity, however immaterial.
And, apparently, the lawyer who has filed "approximately 2000 cases," many of them demanding insane sums of money from people over questionable claims of copyright infringement, is now claiming that the small amount the court has fined him is a "high price" to pay. Yeah right.
Of course, either way, Richard has paid a high price for his failure of memory or falsity concerning the true date his grandfather died. The incidence has been a financial disaster. Richard will have paid to the Clerk of the Court $3700 in financial penalties for his alleged contempt; he has paid adversary counsel for his adversary's wasted time at the conference which Richard failed to attend; and Richard has paid thousands of dollars in attorneys fees for counsel's representation in this contempt matter. Nor is financial loss the only adverse consequence. Richard has suffered horrible publicity as a result of being held in contempt and threatened with incarceration by this Court. And of course Richard, a young and inexperienced lawyer, is scared of the damage to his professional career as a result of his conduct in these proceedings. At the risk of appearing to minimize the seriousness of this matter, which counsel would not dare to do, counsel urges this Court to find that Richard has suffered or been penalized enough for his lapse or misconduct.
The fact that Greenberg keeps trying to suggest this may have been a "lapse" is pretty ridiculous -- as his unwillingness to recognize the whole reason why the judge was so concerned with Liebowitz's claims in the first place: that this is not the first or second time that Liebowitz has been called out by courts for some fairly basic failures. Greenberg then notes that he's "recommended that Richard seek psychotherapy to understand and ameliorate the anxieties, tensions and infrequent lapses of Richard's demanding practice" as well as that he "enroll in a CLE course addressing small law firm management." He also recommends that Liebowitz find an experienced copyright lawyer to advise him.As noted, the letter is truly astounding in the way it talks about Liebowitz as if he's a small, clueless child, while at the same time trying to claim that he's an important lawyer with a huge and growing practice... but somehow too ignorant to recognize that lying to a judge at least ten times in court filings was a bad idea. As the judge noted at the hearing after this letter was sent:
[Judge Cathy] Seibel stated that Liebowitz knew he was lying about the date of his grandfather's death, but chose to repeat that lie six, eight, ten times in court filings that the jurist said were part of a long-term campaign of deception. Liebowitz, Seibel remarked, double-downed, triple-downed, quadrupled-downed, octupled-down, I don't know what would come after that.I question Mr. Liebowitz's fitness to practice, Seibel said at one point during the hearing.
I can recognize the tough position that Greenberg was put in, especially as it appears that this family friend was retained just days before the letter needed to be sent, but the entire premise of the letter is so ridiculous that it is difficult to believe there wasn't a better way to throw oneself on the mercy of the court.
On November 19, Google is expected to finally launch the company's long awaited game streaming platform, Google Stadia. Stadia is being heralded as the vanguard of a new push to eliminate your local game console, and shift all of the computing and processing power to the cloud. The shift to game streaming is likely inevitable, the only problem is that Stadia may be a little ahead of its time. And, like so many Google projects (like Google Fiber), game developers are apparently worried that Google may waffle on its commitment to the project:
"The biggest complaint most developers have with Stadia is the fear is Google is just going to cancel it. Nobody ever says, 'Oh, it's not going to work.' or 'Streaming isn't the future.' Everyone accepts that streaming is pretty much inevitable. The biggest concern with Stadia is that it might not exist.
Granted, that same developer then proceeds to point out there's plenty of projects Google hasn't waffled on:
"if you think about it like that, that's kind of silly. Working in tech, you have to be willing to make bold moves and try things that could fail. And yeah, Google's canceled a lot of projects. But I also have a Pixel in my pocket, I'm using Google Maps to get around, I only got here because my Google Calendar told me to get here by giving me a prompt in Gmail. It's not like Google cancels every fucking thing they make."
Having watched Google promise massive societal transformation with Google Fiber only to have Alphabet bean counters suddenly cripple the project without admitting as much, the worries still aren't entirely unfounded. But while Google's ability to stick with ambitious projects is a worry, there are more pressing concerns facing the project's success. For one the launch lineup is fairly pathetic. There are only going to be twelve titles at launch, most of which (including three games from the Tomb Raider series) have already been out for years. As such, many view this as more of a proof of concept and a paid beta than a serious commercial launch.But the biggest problem for Stadia, as we've mentioned previously, is America's shitty broadband connections.Thanks to limited competition and negligent regulators, ISPs have imposed monthly usage caps as low as 150 GB on the nation's broadband lines. Stadia, according to estimates, can consume upwards of 15 gigabytes per hour at 4K resolution. Yeah, you can scale back the service to lower resolutions, but that defeats the idea of Stadia as any kind of symmetrical replacement for traditional game consoles.ISPs, for their part, have spent years pretending that these caps are a good idea, despite the fact that even the industry has admitted they serve no real technical purpose outside of charging you more money for the same service. They're glorified price hikes only made possible by a lack of competition and regulatory capture. To try and make the limits seem generous, ISPs love to measure them based on how many emails you can send or web pages you can browse. Here's AT&T's breakdown from the company's website:
Whether Google is the company that will dominate the space or not, one thing is clear: ISPs are going to need a new schtick, and a lot of consumers are going to be surprised by the fact game streaming burns through broadband caps like popcorn shrimp.Maybe Google succeeds in the space, maybe it doesn't. Maybe Google sticks with the project, or maybe like Google Fiber Alphabet execs get cold feet and hang up on developers mid-stride in a year from now. Either way, game streaming is likely inevitable. From Sony and Microsoft to Verizon (net neutrality and zero rating should prove interesting in the case of the latter), there are any number of companies eyeballing this space. Who's going to come out on top is far from clear, though what is clear is we're going to need better broadband for the idea to gain widespread commercial appeal.
It probably shouldn't be all that surprising that there is a decent volume of trademark disputes that occur over restaurant menu items. Somewhat like the craft beer industry, the restaurant industry has for a long, long time looked toward creative output for menu items as a way to stand out. Because there are only so many ways you can name food or a dish, occasionally this creative naming practice causes trademark issues.A recent example of this occurred in Canada, where multiple diners were making omelettes and calling them "mish-mash." Beauty's is a Montreal staple that has served a mish-mash omelette, composed of the normal egg ingredients alongside items like hotdogs, peppers, and salami, for several decades. It was only in 1989, though, that Beauty's got a trademark on the name. Other diners, such as Cosmos and Bagel Etc., have offered up their own mish-mash omelettes going as far back as the early 1980s. Despite the trademark, there were no disputes over the menu items until this year, when Beauty's sent C&D notices to several restaurants.
So last month Beauty’s sent out cease-and-desist letters from its lawyers to prevent Cosmo’s and Bagel Etc., among others, from having its trademarked Mish-Mash, or variations of the Mish-Mash name, on their menus. Beauty’s has also requested those who use the Mish-Mash name to make a goodwill donation of $100 to the Jewish General Hospital.
By all accounts, the C&D notices were as polite and relatively benign as you would expect to come from a Canadian business. Still, it's worth wondering aloud both why such notices needed to be sent given the peaceful coexistance of these restaurants for decades, as well as whether Beauty's claim is actually valid, considering the length of time during which it failed to police its trademark at all. Were these other restaurants to decide to argue in court that the term had become generic for Beauty's lack of policing, it's hard to see how they wouldn't win that argument on the merits.Instead, however, both Cosmos and Bagels Etc. responded with equal congeniality.
Regardless, it’s worth noting that Bagel Etc. and Cosmo’s have agreed to the cease-and-desist demand and have now changed the names of their Mish-Mash creations — with no fuss. The identities of the other eateries affected are not yet known, so it’s not certain if they will challenge.Furthermore, Bagel Etc. co-owner Simon Rosson has also obliged with the $100 donation to the Jewish General Hospital, and even made out his money-order contribution as coming from Beauty’s and not Bagel Etc., so Beauty’s could get the resultant tax receipt.Rosson has no issue with the Beauty’s request, considering it has the trademark, but wonders, like so many others, why this issue is coming up now.“I just find it a little weird with the whole lawyer’s letter,” Rosson says. “Just give me a call and I’d do it, no problem.”
And so it all ends with very little fuss. That doesn't change the facts, however, including that the sudden decision to police a trademark, even politely, is itself annoying.
Another bang-up job by our nation's drug warriors (which included the use of flashbangs!) has resulted in yet another lawsuit alleging a host of rights violations. The Louisville (KY) PD's SWAT team was in such a hurry to raid a supposed drug dealer's house, the swearing officer couldn't be bothered to get any of the facts right. (via Reason)Fourteen officers descended on Ashlea Burr and Mario Daugherty's home on October 26. The no-knock raid began with the breaking of the home's glass front door and didn't end until everyone in the house -- including three teenage children -- had assault rifles pointed at them. Despite the assurances of Detective Joseph Tapp that there would be drugs found in the house, there were no drugs found in the house.The lawsuit [PDF] and the warrant affidavit [PDF] are disturbing reads. It shows just how little is needed to secure judicial permission to point guns at innocent people. They're best read together to highlight how much bullshit Det. Tapp shoveled onto the affidavit's pages to come up with something approaching "probable cause."From the affidavit:
The complaint [an anonymous tip] stated a black male named Anthony McClain is growing marijuana and has multiple bags of marijuana packaged for sale in the front bed room.
From the complaint:
Nobody named Anthony McClain [...] lived at the house at or near the time of the raid.
Metro complaint [an anonymous tip] also stated a white female named Holly was his girlfriend and owned the house.
A simple search of Jefferson County's PVA records would have shown that a man named Kevin Hyde owns the house.[...]Ashlea [Burr] and Mario [Daughtery] rent the house.[...]Ashlea is not white.
Detective… approached the house to conduct a knock and talk.
[Detective] Tapp did not even attempt to knock on the door.
What makes up the bulk of the "probable cause" is Detective Tapp's nose. Tapp claimed he approached the house three times over a span of three weeks and each time was hit with the "smell of fresh marijuana." It's pretty difficult to dispute someone's sense of smell. But, by the same token, someone's subjective statement about an odor only they observed shouldn't be enough to establish probable cause.Nothing else in the affidavit points to any evidence of criminal activity other than the (unsworn) assertions of the anonymous tipster -- a tip that got all the facts about the home's owner and residents wrong. Other than the description of the house, the only objectively verifiable fact in Detective Tapp's affidavit is the linking of a car Tapp saw parked in front of the house with one of the residents of the house (Mario Daugherty) via vehicle registration records. That's some goddamn fine detective work, Detective.Thanks to Tapp's odor assertions, a family was needlessly traumatized by fourteen SWAT team members who recovered exactly zero (0) marijuana from the residence Tapp claimed offended his olfactory senses on no less than three (3) separate occasions.The "smell of marijuana" is one of the most abused tools in law enforcement's toolbox a rights violation permission slips. It's an excuse to raid houses. It's a justification for invasive searches. It's a free pass on stealing cash and cars from citizens. It's a popular premise for pretextual stops, which tend to result in all of the above, plus roadside strip search/proselytizing and/or forcible late night baptisms in nearby lakes. Any time an officer swears they smelled marijuana, magistrates should ask "And?" Someone's unverifiable claims about odor should not be allowed to morph into guns-out raids of people's homes. The sanctity of the home -- the heart of the Fourth Amendment -- deserves more protection than this.
As we've detailed for some time now, while contract blackouts have almost always been an annoyance in the cable television industry, they are becoming increasingly prevalent alongside the rise of cord-cutting. Normally when we discuss cable blackouts, the discussion revolves around the entirely predictable strategy by both the broadcaster and cable operator to blame one another, all while paying customers sit without the channels they're paying for. While annoying, that is usually the extent of our comments on the matter.But DirectTV has forged a new path on how to handle broadcast blackouts. In Colorado, both DirectTV and Comcast were hit with a blackout of the Altitude Sports Network, the broadcaster for the Denver Nuggets, Colorado Avalanche, and more. ASN wanted, as per usual, higher fees for its broadcast rights. DirectTV and Comcast did not want to pay those higher fees. But, as part of a larger investigation into the fees Comcast and DirectTV assess their customers, the Colorado AG is looking into why DirectTV kept charging customers the regional sports fee for the channel it was no longer showing.
DirecTV and Comcast are being investigated by Colorado Attorney General Phil Weiser, who objects to the TV providers continuing to charge regional sports network (RSN) fees despite not providing one of the major regional sports networks. While Comcast is giving customers partial bill credits, DirecTV apparently hasn't done so.Weiser sent letters to the AT&T-owned DirecTV and Comcast on October 23, asking why the companies kept charging RSN fees after they stopped providing the Altitude Sports network. The network broadcasts games played by the state's major professional basketball, hockey, and soccer teams (the Denver Nuggets, Colorado Avalanche, and Colorado Rapids, respectively). The AG's letters said that Comcast's and DirecTV's conduct "may constitute a deceptive trade practice under the Colorado Consumer Protection Act" and "may result in the imposition of civil penalties up to $20,000 per violation." The letters also said the AG is investigating other potentially misleading fees.
As noted, Comcast is trying now to make this right by offering partial refunds. DirectTV, at the time of this writing, apparently isn't trying to make this right at all. It's one thing to charge fee after fee in a complicated invoice constructed specifically so that paying customers have no clue what they're actually paying for, but to specifically continue to charge for a network that isn't even being broadcast at the time is especially sinister.For what it's worth, the AG both gave DirectTV some time to respond with its plans. When DirectTV didn't bother to respond on time, it probably didn't do the company any favors with respect to the AG's interest in investigating further.
Weiser's office gave both companies until November 7 to respond. Comcast said it will provide an additional, more detailed response to the AG by then. AT&T's DirecTV division hasn't responded to Weiser's office yet, Weiser's office told Ars today. We contacted AT&T today and will update this article if we get a response.The actions of DirecTV, which apparently hasn't offered credits to customers, have been "very concerning," Weiser told The Denver Post."Based on early conversations with DirecTV and AT&T, we didn't believe they were taking the request with the seriousness that they should," a spokesperson for Weiser also told the Post.
Interestingly, this is just the tip of the spear when it comes to the AG's investigation. Weiser letter also informed both cable operators that the AG was looking into how both companies assess customers fees generally, with an eye towards whether such fees would violate state law on deceptive trade practices. This, of course, is the cable television standard, so it's good to see at least one state taking a hard look at how cable TV customers are being bilked out of money with bullshit fees.
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It's kind of stunning how frequently we see elected officials proposing things that are so blatantly unconstitutional that you wonder how they were proposed in the first place. Take, for example, a situation in southwest Wisconsin. Last week it was reported that the Lafayette County's board would be considering a hilariously overbroad resolution that threatened to prosecute journalists if they did not report on the local "Review Board of the Water Quality Study." The proposed resolution did not mince words, noting that it was put in place because of worries about "slander":
WHEREAS, in the past, Southwest Wisconsin has been falsely slandered by the press due to a county board leak of confidential information of the collaborative three county water study the following protocols must be followed:
So, right from the start this is problematic. Claiming that the press "slandered" you already suggests a bad outlook. Second, any demand for "protocols" that "must be followed" for journalists is inherently a violation of the 1st Amendment that anyone -- even a lowly county board member -- should recognize. Among the protocols are the insane requirement that any reporting on the report must simply repost the entire press release crafted by the Review Board, and they are not allowed to even quote it.
An appropriate statement will be crafted by the Review Board. It will be crafted in a press release and shared with the press with this specific statement included at the top: "Please do not alter, edit, cut or adjust this press release in anyway. Please print the content provided in full." Under no circumstances is the media allowed to glean information and selectively report it in order to interpret the results for their own means.
Yeah, so beyond the mixing up of "any way" and "anyway", telling journalists that they're not allowed to "glean information" or report on it how they want is kind of insane. It also undermines the "Please" at the beginning of the "specific statement included at the top" which makes it sound like a request. Oh, also undermining the "please" is the sentence after the part quoted above:
Violators will be prosecuted.
FOR WHAT?!? Reporting? Who could have possibly thought this was a good idea?Either way, within hours of this getting some press attention (and widespread criticism) the board admitted that the proposed resolution was dropped from consideration:
Lafayette County Corporation Counsel Nathan Russell confirmed Friday the committee would no longer be considering the resolution. When asked why the proposal was removed from the agenda, Russell said the resolution was not necessary.
"Not necessary" is a funny way of saying "blatantly unconstitutional" but, hey, at least the end result was correct.
You might think that throwing a word like "magenta" into the Techdirt search engine wouldn't get you any results. But you would be wrong about that and you'd be wrong entirely because of T-Mobile and its parent company Deutsche Telekom. See, Telekom has trademark rights in several countries for a very specific shade of magenta. And with those trademarks, Telekom rather enjoys threatening other businesses that dare to use anything that remotely looks like magenta in their trade dress, whether the color in question is actually magenta or not, and regardless of whether the other company is even a competitor or not.And Telekom is still at it to the present. A German court has informed a startup insurance company out of New York called Lemonade that it must cease to use the shade of pink it's been using in it's branding for three years.
New York-based Lemonade is a 3-year-old company that lives completely online and mostly focuses on homeowners and renter’s insurance. The company uses a similar color to magenta — it says it's "pink" — in its marketing materials and its website. But Lemonade was told by German courts that it must cease using its color after launching its services in that country, which is also home to T-Mobile owner Deutsche Telekom. Although the ruling only applies in Germany, Lemonade says it fears the decision will set a precedent and expand to other jurisdictions such as the U.S. or Europe.“If some brainiac at Deutsche Telekom had invented the color, their possessiveness would make sense,” Daniel Schreiber, CEO and co-founder of Lemonade, said in a statement. “Absent that, the company’s actions just smack of corporate bully tactics, where legions of lawyers attempt to hog natural resources – in this case a primary color—that rightfully belong to everyone.”
Here is the branding for Lemonade. Judge for yourself whether you think it is somehow confusing with T-Mobile.
Does that branding use a pinkish purple? Yes, yes it does. How close is that color to that trademarked by Telekom? I have no earthly idea, nor do I much care. T-Mobile provides cellular service, whereas Lemonade provides insurance services. Those aren't in the same market. And whatever distinction Telekom might claim that its magenta color has earned, that distinction certainly doesn't magically make any of this confusing.And, separately, it's still rather galling that a company like Telekom can somehow own the rights to a color in a way that causes it to think nobody else, full stop, can use it. And, yet, Lemonade complied with the court's instructions. But not without making another move.
Although Lemonade has complied with the ruling by removing its pink color from marketing materials in Germany, it’s also trying to turn the legal matter into an opportunity. The company today began throwing some shade in social media under the hashtag “#FreeThePink,” though a quick check on Twitter shows it’s gained little traction thus far: Schreiber, the company’s CEO, holds the top tweet under “#FreeThePink” with 13 retweets and 42 likes. Lemonade also filed a motion today with the European Union Intellectual Property Office, or EUIPO, to invalidate Deutsche Telekom’s magenta trademark.
It would be absolutely delicious if Lemonade ended up getting Telekom's trademark invalidated. Free the pink.
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Medical Marijuana – an in Depth Anaylsis on What Works and What Doesn’t You may choose to prevent marijuana when you have schizophrenia, as it might make symptoms worse. Actually, many used marijuana for a substitute for heroin. Unlike alcohol, marijuana still lets you’ve got a very clear head. Marijuana is a pure plant that’s […]The post Medical Marijuana – an in Depth Anaylsis on What Works and What Doesn’t appeared first on Adotas.
A couple years back we wrote about the patent trolling operation Blackbird Technologies, which was a law firm that pretended it wasn't a law firm, and seemed to focus on buying up patents to shake down companies for cash. It had threatened many and sued a few, but definitely picked the wrong target when it decided to go after Cloudflare. Like Newegg before it, the team at Cloudflare decided that even if it was cheaper to settle, it would set a bad precedent and would likely lead to more trollish threats landing on its doorstep. So, instead, Cloudflare decided to fight back. And it went a step or two beyond Newegg, who would just fight the trolls in court. Cloudflare decided to not just fight in court, but then to seek to destroy Blackbird Technologies entirely. It launched a crowdsourced contest to search out prior art not just on the patent at issue in its own case, but on all Blackbird patents. It also went after the lawyers at Blackbird, filing bar complaints against the company for violating attorney ethics rules (mainly in holding itself out as not a law firm, but then acting as a law firm). There was also the issue of the firm appearing to purchase the bare right to sue, the same issue that brought down copyright trolling operation Righthaven. The issue there is that if you purchase the rights to a patent or a copyright, you have to actually purchase all of the associated rights, not do a convoluted thing where you pretend to buy the rights, but the original copyright or patent holder gets some of the proceeds of your trolling.The legal strategy went swimmingly well. Cloudflare got an easy win at the district court, and then a super quick and easy win on appeal at CAFC, the Court of Appeals for the Federal Circuit. Cloudflare was so obviously on the right side of things that the CAFC panel didn't ask its lawyers a single question (which is very rare), issued a decision mere days after the hearing (incredibly rare) and found Cloudflare's arguments so correct that it didn't even explain its decision, but just issued a judgment that said "Affirmed" (even more rare). As we noted at the time, even though it was an "easy" win for Cloudflare, it still involved two years of legal wrangling, involving over 1,500 pages of legal briefings on both sides (900 from Cloudflare alone). That's expensive, time-consuming and distracting.Earlier this week, Cloudflare released an update about the rest of its efforts to hit back at Blackbird (now that Blackbird chose not to request the Supreme Court review the CAFC decision). All in all, the effort to clip Blackbird's wings appears to have been a pretty good success overall, even if the company is still operating. The crowdsourcing (and funding) campaign to find prior art against a bunch of Blackbird patents was definitely a success:
A high-level breakdown of the submissions:
We received 275 total unique submissions from 155 individuals on 49 separate patents, and we received multiple submissions on 26 patents.
40.1% of the total submissions related to the '335 patent asserted against Cloudflare.
The second highest concentration of prior art submissions (14.9% of total) relate to PUB20140200078 titled Video Game Including User Determined Location Information. The vast majority of these submissions note the similarity between the patent's claims and the Niantic game Ingress.
It certainly appears that Blackbird's prospects have diminished thanks to this team effort:
In the one-year period immediately preceding Project Jengo, (Q2'16-Q2'17) Blackbird filed more than 65 cases. Since Project Jengo launched more than 2.5 years ago, the number of cases Blackbird has filed has fallen to an average rate of 10 per year. Not only are they filing fewer cases, but Blackbird as an organization seems to be operating with fewer resources than they did at their peak. When we launched Project Jengo in May 2017, the Blackbird website identified a total team of 12: six lawyers, including two co-founders, four litigation counsel, as well as a patent analysis group of 6. Today, based on a review of the website and LinkedIn, it appears only three staff remain: one co-founder, one litigation counsel, and one member of the patent analysis group.
As for the ethics complaints, the company notes that the proceedings there are confidential, so there's not much to report, but also notes that they only filed these complaints in two states, Massachusetts and Illinois. At the very least, this should hopefully scare off others from mimicking Blackbird's sham agreements:
We based our complaints on the assignment agreement we found filed with the USPTO, where Blackbird purchased the '335 patent from an inventor in October 2016 for $1. It seemed apparent that the actual but undisclosed compensation between the parties was considerably more than $1, so Blackbird may have simply acquired the cause of action or the agreement involved an arrangement where Blackbird would split a portion of any recovered fees with the inventor. Such agreements are generally prohibited by the ethical rules.In public statements, Blackbird's defense to these allegations was that it (i) was not a law firm (despite the fact it is led exclusively by lawyers who are actively engaged in the litigation it pursues) and (ii) does not use contingency fee arrangements for the patents it acquires, but does use something similar. Both defenses were rather surprising to us. Isn't an organization led and staffed exclusively by lawyers who are drafting complaints, filing papers with courts, and arguing before judges amount to a law firm? In fact, we found pleadings in other Blackbird cases where the Blackbird leadership asked to be treated as lawyers so they could have access to sensitive technical evidence in those cases that is usually off-limits to anyone but the lawyers. And what does it mean for an agreement to be merely similar to a contingency agreement?
The successful campaign against Righthaven seemed to have prevented similar operations forming in the copyright trolling space, and hopefully this effort against Blackbird will do the same in the patent trolling space. At the very least, though, this, again, demonstrates the value of standing up to a patent troll, even if it would be a hell of a lot cheaper and easier to just settle.
We had just talked about the apology that Blizzard's President J. Allen Brack issued at the opening of Blizzcon this past week. In that apology, Brack accepts responsibility for "moving too quickly" in banning Blitzchung for his mild statements of support for the ongoing protests in Hong Kong and states that Blizzard hadn't "lived up to the high standards" that Brack apparently expects out of the company. Notably absent from the apology was any reference to altering Blitzchung's six month ban from competition, or any changes to other bans over Hong Kong speech the company had handed out.And now Brack has explicitly stated in a recent interview that Blitzchung's 6 month ban will stay in place, further calling into question what the point of his "apology" was at all.
In explaining that decision,Brack reiterated the message that Blizzard supports free speech and encourages employees and players to say what they want in "all kinds of ways and all kinds of places." The one exception to that, he said, is "official broadcasts," including Blizzard-sponsored esports events, which the company wants to be "focused on the games.""Again, it's not about the content of Blitzchung's message,"Brack said, echoing previous comments from Blizzard. "It's about the fact that it was not around the games. If we hadn't taken action, if we hadn't done something, you can imagine the trail that would be in our future around doing interviews. They would become times for people to make a statement about whatever they wanted to, on whatever issue. That's just a path that we don't want to go down. We really want the content of those official broadcasts to be focused on the games, and keep that focus."
Which lands us pretty much right back to Blizzard's original policy. So what was the apology for? Simply banning too quickly? Banning for a year instead of six months? None of this addresses what people are actually angry about. Brack went on to state that Blizzard competitors were free to express their political thoughts outside of Blizzard stream, though there is evidence to the contrary.Brack went on to make even more confusing statements suggesting that Chinese pressure had nothing to do with the ban due to Blizzard not really operating in the country, before then going on to say that they work in close concert with their Chinese broadcast partner.
Brack also reiterated in the interview that Chinese regulations and business pressure has nothing to do with the company's decisions regarding Blitzchung. Though Hearthstone is available in China,Brack stressed that it was only through local publishing partner NetEase, and that Blizzard itself is "not legally allowed to operate or to publish games in China."Elsewhere in the interview, though, Brack says that Blizzard Taiwan, Hearthstone leadership, and Blizzard's "esports team" were all "in conversation [with NetEase] around the issue." Together, Brack said, those groups "acted very rapidly and we acted very quickly" in handing out Blitzchung's initial ban, using an amount of haste that Brack now calls "the failure of this story."
Very little is clear in any of this, save for the simple reality that Brack's apology was corporate nonsense. If any of this was supposed to tamp down the fervent anger at Blizzard's actions, I can't imagine it working.
As we've noted multiple times here at Techdirt, criminal defamation laws are unconstitutional, outdated, and almost exclusively used by law enforcement agencies to punish their critics. The ACLU -- along with a victim of New Hampshire's terrible criminal defamation law -- is hoping to have this law struck down as unconstitutional.Despite the law being clearly unconstitutional and its history of use in the state showing it has mainly been used by cops to go after critics, the state's Attorney General is spending taxpayers' money to defend a law that provides zero benefit to taxpayers.The problems inherent in an abusable law like this are only made worse in New Hampshire, where law enforcement officers are not only allowed to arrest people, but also initiate prosecution for misdemeanor charges like this one. The state also does not respect the right to counsel in misdemeanor cases, leaving it up to defendants without the means to hire a lawyer to defend themselves against charges brought by cops who are now acting as prosecutors.The state claims the law is perfectly fine and that Bob Frese -- the man arrested and prosecuted by Exeter police officers for saying Exeter cops were "dirty" and were being covered up for by their "corrupt" chief -- has no grounds to sue the law out of existence. The court disagrees, finding plenty that's disagreeable about the law itself and its use by police officers to punish critics. (via NHPR)As the court notes in its denial [PDF] of the state's motion to dismiss, Frese has already twice been subjected to arrest and prosecution under this law.
In 2012, the Hudson Police Department interviewed Frese after a local life coach complained about comments Frese posted on the online platform Craigslist. In those posts, Frese repeatedly called the coaching business a scam and claimed the coach had been charged with distributing heroin. The Hudson Police Department ultimately charged Frese with harassment and criminal defamation and obtained an arrest warrant signed by a justice of the peace. Frese, without counsel, pleaded guilty to the charges and was fined $1,488, with $1,116 suspended on the condition he stay in good behavior for two years.More recently, in 2018, the Exeter Police Department arrested and charged Frese with criminal defamation after he pseudonymously posted comments on the Exeter News-Letter’s Facebook page concerning a retiring Exeter police officer. In his first comment, Frese, under the pseudonym “Bob William,” stated that the retiring officer was “the dirtiest most corrupt cop that I have ever had the displeasure of knowing . . . and the coward Chief Shupe did nothing about it.” The Exeter News-Letter removed this comment at the police department’s request. After the comment was deleted, Frese submitted a second comment under the pseudonym “Bob Exeter” stating: “The coward Chief Shupe did nothing about it and covered up for this dirty cop. This is the most corrupt bunch of cops I have ever known and they continue to lie in court and harass people . . . .”
The second prosecution of Frese was terminated after the state's Civil Rights Division determined the officers had no probable cause to arrest him due to a lack of "actual malice" in Frese's online comments. It's this second arrest that forms the basis for Frese's lawsuit, which seeks a permanent injunction against enforcement of the law.The state argued Frese had no standing to sue, because he did not state he intends to… um… keep violating the law, I guess. In other words, the AG says Frese has nothing to fear from the state since he hasn't said he's just going to keep making defamatory statements. The court says Frese's intent isn't the issue here. It's that Frese has already been baselessly arrested and charged for criticizing law enforcement. Since he intends to keep criticizing law enforcement, he has established a credible fear that he'll be arrested and prosecuted again for future criticism.
[T]he criminal defamation statute “arguably . . . proscribe[s]” Frese’s intended future conduct… The criminal defamation statute sweeps broadly, carving out no exceptions for speech concerning law enforcement or other public officials. [...] The Exeter Police Department already commenced a criminal defamation action against Frese in 2018 when he commented that “Officer Shupe did nothing” and covered up “the dirtiest most corrupt cop that [Frese] ever had the displeasure of knowing.” Although the department eventually followed the advice of the State’s Civil Rights Division in terminating the prosecution, Frese was nonetheless arrested and, for a time, prosecuted.
Defamatory statements, by definition, must be false. The AG says all Frese has to do is not lie. Again, this is beside the point. Law enforcement officers have the power to decide what's true or false under the law, which allows them to arrest and prosecute people who officers only believe are lying. Since there's almost no adversarial process involved, cops acting as judges and juries make the call on the truthfulness of people's statements. Not intending to violate the law doesn't matter since cops get to assume intent whenever they find criticism they don't like.
Even if Frese does not plan in the future “to lie or recklessly disregard the veracity of his speech,” see id. at 156, his complaint sufficiently alleges that the State’s prosecutorial arms, which include non-attorney police officers, retain overly broad discretion to determine whether an individual knew his speech to be true or false. Like the SBA List plaintiff, Frese’s insistence that his 2018 comments were true did not prevent Exeter police officials from filing a criminal complaint against him or prevent a Circuit Court judge from finding probable cause to arrest Frese based on the police’s filings. Accordingly, Frese has demonstrated that his intended future conduct is “arguably . . . proscribed by the statute.”
The court also says the law itself may be unconstitutionally vague. First, the definition of the forbidden act is little more than a recitation of the definition of the term "defamation" with "any statement that would hold another up to public hatred, contempt or ridicule" attached to the end of it. There isn't enough detail in the law to provide guidance to citizens on how they can avoid violating it. Worse, since cops are also prosecutors in misdemeanor cases -- acting without guidance from actual prosecutors -- they get to decide what violates the vague law, which obviously leads to the type of thing seen here: the punishment of law enforcement critics by the law enforcement agency being criticized.
Frese alleges that, “[o]n information and belief, individuals throughout New Hampshire routinely violate the criminal defamation statute, but [he] was arrested and prosecuted because he criticized law enforcement officials.” As clarified by his objection, Frese urges this court infer that because the statute “gives law enforcement far too much discretion in deciding whom to prosecute,” the motivation to prosecute criminal defamation is often political.
The court isn't willing yet to decide whether or not the law is unconstitutional. But it will allow Frese's lawsuit to proceed. And the court's closing statement suggests the law isn't going to make the constitutional cut.
Although some criminal defamation prosecutions may collapse on close scrutiny, as was the case with Frese in 2018, this fact does not negate the risk of an excessively discretionary scenario created by the statutory language challenged here. Frese’s encounters with prosecutions under the statute highlight several of these risks. As such, the discretion afforded to police departments to prosecute misdemeanors, taken together with the criminal defamation statute’s sweeping language, may produce more unpredictability and arbitrariness than the Fourteenth Amendment’s Due Process Clause permits.
The state will continue fighting Frese in court, even though there's really no compelling reason the law should remain on the books. It's the sunk cost fallacy in action, but with other people's money. This law doesn't need defending. This law needs to die. Defamation should be handled in civil courts, not by cops who are also judges and juries.
Trademark bullies, being the obviously frustrating entities that they are, rarely incorporate enough shame to allow for any retreat from their bullying ways. Still, occasionally you come across a trademark bully that actually feels enough public pressure to back down. Relatively rare as these instances are, it's worth highlighting when an informed public actually pushes back on a bully enough to get them to back down.Meet Backcountry.com. The site sells all kinds of outdoors gear, with a focus on winter sports. As you might expect, the company also filed for trademarks for "backcountry" for clothing and apparel about a year ago. Despite that being a fairly generic term, particularly in the realm of outdoors gear, Backcountry.com then recently went on a trademark bullying spree.
The 23-year-old Utah e-retailer — founded by ski bums but owned since 2015 by private equity firm TSG Partners — this year deployed California’s IPLA Legal Advisors, the nation’s largest trademark-only law firm, in four lawsuits targeting small businesses that used the word backcountry in their name. The U.S. District Court lawsuits follow several years of the e-retailer filing dozens of lawsuits and protests with the U.S. Patent and Trade Office targeting businesses that have trademarked the word backcountry.Backcountry.com, through a spokeswoman, declined to comment on the flurry of lawsuits.
The general public, however, did not decline to comment. In fact, the public commented very much after reports on these lawsuits and the public was not pleased. Facebook pages pledging to boycott Backcountry.com sprung up with thousands of members. A GoFundMe site was setup for Marquette Backcountry owner David Ollila, the sole entity to not cave and settle with the bully. Other community sites around the internet lashed out at Backcountry.com for bullying other businesses over a fairly generic term.
“This obviously didn’t resonate well with the market,” said Ollila, the Michigan entrepreneur behind Marquette Backcountry Ski who was sued in September by Backcountry.com for trademark infringement. “Looking at all the comments online, I see people saying that until this is rectified, they are not shopping there. I see this as a great wake-up call to the industry and awareness about what it takes to run a small business and what a fair playing field looks like.”
You see this from time to time, but the backlash from what is a fairly niche community made this all particularly sharp for Backcountry.com. Whereas we have seen plenty of instances in which trademark bullies simply dig in their heels, here the bully actually bowed to the public pressure.
“We have heard your feedback and concerns and understand we fumbled in how we pursued trademark claims recently,” Backcountry.com CEO Jonathan Nielsen wrote in an open letter posted on the retailer’s website, noting his company was dropping a federal lawsuit filed against the founder and sole operator of Marquette Backcountry Ski. “We made a mistake.”Nielsen’s “letter to our community” — posted on the company’s website late Wednesday, a little more than three weeks before the retail industry’s Black Friday bonanza — said attempts to protect the brand involved actions “that we now recognize were not consistent with our values and we truly apologize.”
Is the timing such that this is less a company realizing it made a mistake and more that it's trying to save the sales it expects during its busy season? Sure, but so what? The point isn't whether Backcountry.com has turned over some new leaf or not, but is instead to highlight the power of public involvement. It wasn't the legal merits that changed the company's mind. It wasn't the pleas of its victims. It was the power of the customer that actually resulted in the company dropping these lawsuits.Perhaps this should serve as some kind of a template for how trademark bullies can be dealt with in the future.
The fallout from Blizzard's complete bungling of several eSports competitors taking public stances in support of the ongoing protests in Hong Kong has been both brutal and ongoing. As a reminder, professional Hearthstone player Blitzchung made relatively mild statements on a Blizzard stream backing the protests, leading to Blizzard yanking his prize money from an event and then issuing him a 1 year ban from competition. Others joined him in those comments afterwards, resulting in more bans. Soon after that, Blizzard returned Blitzchung's prize money and reduced his ban to 6 months, apparently believing the outrage that had ensued was over 6 months of the bans, rather than the fact that Blizzard would ban players for this kind of speech at all. Congress started making noise, calling on Blizzard to behave better, while at least one advertiser bailed on Blizzard entirely.That's what has occurred basically over the last month or so. This past week, of course, was the start of Blizzcon, the convention that is supposed to be one enormous celebration of Blizzard. Instead, Blizzard President J. Allen Brack was forced to walk onto the stage at Blizzcon's opening ceremony and issue an apology.
Before Blizzcon’s opening ceremony, Blizzard president J. Allen Brack somberly addressed the crowd with an apology for Blizzard’s harsh punishment of Hearthstone esports pro Chung “Blitzchung” Ng Wai. “Blizzard had the opportunity to bring the world together in a tough Hearthstone esports moment about a month ago and we did not,” said Brack.“We moved too quickly in our decision-making and then, to make matters worse, we were too slow to talk with all of you,” said Brack. “We didn’t live up to the high standards that we really set for ourselves.”Brack went further: “I’m sorry and I accept accountability,” he said.
You might assume that he then immediately announced that Blitzchung's 6 month ban and the other bans issued for Hong Kong comments had been rescinded. But you would be very, very wrong about that. Blitzchung's ban remains. And, as far as official Blizzard policy goes, political comments on Blizzard streams and during events are still very much forbidden. In other words, it's difficult to see what's actually changed to go along with Brack's "apology."Outside of Blizzcon's front door, there is a group of people who also don't seem to be particularly placated.
Protesters, some in cosplay, are holding signs and chanting slogans like “People over profit” and “Free Hong Kong.”This particular protest has been facilitated by multiple groups, including Los Angeles-based pro-Hong Kong democracy collective Hong Kong Forum, another pro-Hong Kong group called Freedom Hong Kong, an activist organization called Fight For The Future, and the Protest BlizzCon subreddit, the latter two of whom announced their protest intentions well in advance of the convention.The protest continued into the afternoon, featuring speeches from guests like two of the American University Hearthstone players who held up a “free Hong Kong” sign during a Blizzard-hosted broadcast and ultimately received a punishment similar to Blitzchung’s.
This isn't the celebration of Blizzard the company hoped would greet convention goers upon entering Blizzcon, you can be sure. It's worth remembering at this point, again, that Blitzchung's comments in support of Hong Kong were incredibly mild. Blizzard massively overplayed its hand, when it could have shown some spine, no matter the pretend hurt feelings of Beijing.Hell, even Hearthstone's developers are publicly commenting that they don't support Blizzard's actions.
During an interview at BlizzCon, Hearthstone game director Ben Lee and creative director Ben Thompson admitted that they wished Blizzard execs had handled the Hong Kong powder keg with more care.
And yet the rage continues, as do the protests, all because Blizzard kept tripping over its own feet in handling all of this.
Right after Donald Trump lost the case against him for blocking people on Twitter, we noted that Dov Hikind, a critic of Rep. Alexandria Ocasio-Cortez launched a similar lawsuit against her for blocking him. Again -- because it's important to repeat -- the court rulings in the Trump case made it clear that politicians who used Twitter for part of their job representing the public could not block people, as that's a violation of the 1st Amendment. The specific criteria laid out by the courts were that (1) if you're a public official, and (2) using social media (3) for official purposes (4) to create a space of open dialogue, then you cannot block people from following you based on the views they express.It appeared that the @AOC account met all of the criteria, and therefore should not be able to block critics for expressing their dislike of her stances or policies. Ocasio-Cortez, on her part, stood by her right to block people by claiming that she only blocked 20 people, none were constituents, and that they were only blocked for harassment which, she argued, was "not a viewpoint" (i.e., this wasn't viewpoint discrimination). Either way, just as the Hikind case was about to go to trial, Ocasio-Cortez has settled the case, admitted she was wrong to block Hikind and apologized:
Mr. Hikind has a First Amendment right to express his views and should not be blocked for them, the Queens-Bronx congresswoman said. In retrospect, it was wrong and improper and does not reflect the values I cherish. I sincerely apologize for blocking Mr. Hikind.
The Knight 1st Amendment Institute, which had brought the lawsuit against Trump and had sent Ocasio-Cortez a letter arguing that she was incorrect to block people with her account, announced that they were happy with this result. According to their Senior Staff Attorney, Katie Fallow:
We applaud Rep. Ocasio-Cortez for recognizing that she was wrong to block critics from her Twitter account. As the courts have affirmed, when public officials use their social media accounts to carry out official duties, they create a public forum and can't prevent people from participating simply because they don't like what they're saying. We hope that other public officials who are blocking critics from their social media accounts take Ocasio-Cortez's lead.
That said, while this case was settled and Ocasio-Cortez admitted to being wrong, she still seems to be standing by the idea that she can block some users:
I reserve the right to block users who engage in actual harassment or exploit my personal/campaign account, @AOC, for commercial or other improper purposes, she said.
There might be cases where it would not be a 1st Amendment violation to block users, but the details would matter quite a bit -- and the argument that harassment, by itself, would constitute a reason for blocking seems iffy, at best. Same with "exploit[ing]" her account "for commercial or other improper purposes." It will be interesting to see if other such cases are brought, or if the @AOC account choose to block others in the future.
There is a regular pattern of communication between Boston police and U.S. Immigration and Customs Enforcement (ICE) that includes emails regarding arrests for low-level offenses like trespassing and shoplifting, according to documents obtained by WBUR.[...]In emails reviewed by WBUR, Boston police and federal immigration officials regularly offer information back and forth between the agencies. Often, the agencies are comparing arrest records of individuals accused of non-felony violations — like operating a vehicle without a license and shoplifting — to see if they have potential civil immigration violations, and vice versa.
I guess this works out for the Boston PD. It frees up its officers to tackle serious crimes and actually dangerous criminals. I mean, theoretically. This information-sharing doesn't appear to be linked to any uptick in enforcement or case clearance rates.It also works out for ICE, which is willing to settle for apprehending mildly-disruptive hombres in lieu of bad ones. Since no one up top is paying too much attention to the quality of ICE apprehensions, anything that increases the quantity of apprehensions is welcome.This runs contrary to Boston Mayor Marty Walsh's declaration that city law enforcement would not assist ICE in anything but actually rounding up the "worst of the worst." Cooperation was supposed to be limited to violent crimes and suspected felons.Maybe the rest of the police force is complying with Mayor Walsh's wishes. But one officer definitely isn't. The documents obtained by WBUR show a single officer -- Police Sergeant Detective Gregory Gallagher -- is handling almost all of ICE's requests for information. When not acting as a single source provider for immigrant info, Detective Gallagher is also offering to cover shifts for DHS special agents.Detective Gallagher's work makes a certain amount of sense considering he's the PD's point man for the department's own immigration enforcement efforts. And it makes sense more broadly since local law enforcement agencies have been authorized to "perform the full range of law enforcement duties of a Customs Officer" on behalf of ICE since 2014.But what doesn't make sense is this officer's insistence on acting as an ICE liaison to hunt down shoplifters and unlicensed drivers when ICE isn't supposed to be focusing on these non-threats to national security/public safety. It also doesn't make sense when the mayor has specifically instructed the city's police force to provide assistance only in the most severe cases.The response to this report by the city's top cop isn't necessarily reassuring.
Boston Police Commissioner William Gross told WBUR Thursday that his officers are focused on violent crimes and drugs, not a person's immigration status.
That's great and all, but someone inside the department is very much focused on immigration status. While the rest of the PD may be busying itself with actual police work, one detective has transformed himself into ICE's top lackey -- one with access to records and databases ICE possibly can't access legally on its own.Even if everything about this was completely above-board, it would still be problematic. ICE has limited resources but it's using them to hunt down scofflaws, not dangerous criminals. It has a shortage of manpower, but still feels compelled to busy itself with low-level offenses committed by people who pose no threat to anything but the administration's bullshit-shoveling.
We've seen a great many examples of trademark lawsuits here at Techdirt. In most cases, those lawsuits are levied by individuals and companies that are the trademark bully, but that's not always the case. We also see plenty of suits that are raised in defense of such bullying, in which the entity suing asks the court to simply affirm that its use is not infringing. Trademark bullies, of course, don't like when that sort of thing happens.Meet Scott D'Avanzo of California. Scott did a pretty cool thing and created a haunted house attraction in his garage, naming it the "Mystic Motel." Then he came across the plans of the Silver Dollar City theme park near Branson for its new "Mystic River Falls" water rafting ride. At that point, he did the very un-cool thing of contacting Mystic River over the trademark he had on his haunted house and demanding to speak about the name of the new ride.
Scott D'Avanzo said he sent Silver Dollar City a letter earlier this year asking the theme park to contact him about the name, which he claims is similar to the "Mystic Motel" name he used for a haunted house attraction he started out of his garage."You have to police your trademarks," D'Avanzo said. "That's all we were doing is protecting what was ours."D'Avanzo said he has sent many letters to other businesses that are similar to the one he sent Silver Dollar City. He said his letters are usually followed by a phone call where the two parties can work out some parameters for use of the name.
Silver Dollar City, however, didn't bend the knee to D'Avanzo. Instead, the theme park filed a lawsuit, seeking to have the court declare that the name of its ride at a large-ish theme park doesn't somehow violate the trademark rights for a garage-based haunted house. The reported arguments Silver Dollar City makes are the ones you would expect; namely, that its use of the word "Mystic" isn't going to cause confusion among the public for a "family project and neighborhood attraction." That's all the theme park wants: the reasonable use of the name of its ride.But Silver Dollar City doesn't stop there. The theme park also points out that D'Avanzo didn't oppose its trademark application, didn't say a word about it until it came time for a money-grab, and, oh, D'Avanzo destroyed his Mystic Motel setup entirely some time ago.
Upon information and belief, both the “Mystic Motel” “dark house” and the Christmas-themed “Journey to Polar Point” family projects were destroyed or deconstructed at some time. Upon information and belief, the “Mystic Motel” and “Journey to Polar Point” marks were not in continuous use with those projects during certain years. Upon information and belief, the “Mystic Motel” and “Journey to Polar Point” marks were not used at all or in interstate commerce with those projects during certain years. Upon information and belief, the “MYSTIC MOTEL” mark does not appear to be in use at this time. Upon information and belief, Mr. D’Avanzo and his family are not currently living in the Ladera Ranch house and they appear to have no ability to offer the “dark house” attraction under the “MYSTIC MOTEL” mark for Halloween this year.
In fact, the filing goes so far as to claim that D'Avanzo's trademark application itself may have been built on lies, where he claims to be using the "Mystic Motel" mark in interstate commerce, but never did. On top of that, D'Avanzo created a separate company, Adrenaline Attractions, to which he assigned the trademark. Adrenaline Attractions doesn't provide amusement attractions, but instead consults with parks to design rides, which isn't the market designation for which D'Avanzo has his trademark. Also, Adrenaline Attractions appears to have exactly one customer. Again, this is not a story about confusion in commerce, but about a money-grab.This, somehow, rates with D'Avanzo as bullying.
"That's what they are is a big bully," D'Avanzo said of Silver Dollar City. "I'm not a stranger to the court," D'Avanzo said. "And if I have to fight, I will."
Any reasonable assessment of the situation would result in Silver Dollar City's request for declaratory judgement to be granted. I'd only like to add that it takes chops to bully a company over a trademark, have that company ask the court to defend it from the bullying, and then call the company the trademark bully.Maybe D'Avanzo can add an IP wing to his haunted house, except he doesn't appear to actually have one any longer.
At Techdirt, we've been writing about the problems of electronic voting for just about our entire existence. I believe the first time we wrote about the problematic nature of electronic voting was in June of the year 2000, a few months before the controversy over "hanging chads" in the 2000 election in Florida. Over the years, we've continued to write about electronic voting and its myriad problems dozens upon dozens of times -- and to this day I remain amazed at how little companies and election officials have taken this space seriously. Part of the issue is that there is no easy solution. There isn't a "good" solution, there are only options that are "less bad" than others. The problem is that many places use solutions that are obviously bad when there are at least better options on the table.So it's great to see John Oliver step in and explain the problems with voting machines in a way that only he can:If you've followed this space for some time (as, apparently, we have), you won't find much that's surprising in the piece, but it does such a good job of highlighting just how ridiculous the discussion currently is around voting machines, and how little politicians and voting machine companies seem inclined to do anything about it all.
Three years ago, police in Colorado destroyed Leo Lech's home to arrest a person suspected only of shoplifting from a nearby Walmart when the house destruction began. Shoplifting suspect Robert Seacat abandoned his vehicle and hid in Lech's house. When police entered to arrest him, Seacat shot at them five times.The Greenwood PD escalated its response. It brought in a Bearcat to ram a hole into the side of Lech's house. Officers used explosives to punch multiple holes in the sides of the house, hoping to locate the hidden suspect. The PD repeatedly fired teargas grenades into what was left of the house. Nineteen hours later, officers arrested Seacat, discovering two handguns and methamphetamines in the backpack he was carrying.When Leo Lech was finally allowed to return to his home, he discovered he no longer had one.
The city gave Lech $5,000 for "temporary living arrangements," but offered no other assistance. Shortly after that, the city condemned Lech's house and told him he'd need to build a new holding pond in addition to a new house. Lech sued, alleging (among other things) that the PD's destruction of his house to catch a criminal suspect violated the Takings Clause. The district court disagreed, dismissing all these claims with prejudice.Lech appealed but the Tenth Circuit Appeals Court has upheld [PDF] the lower court's decision. The court says no one's responsible for the mess the Greenwood PD created when it decided a citizen's house wasn't going to stand between officers and the man they were trying to arrest.Lech argued the destruction of his house was an illegal taking by the government -- a violation of the Fifth Amendment. The government argued it was not a "taking." The destruction of Lech's house occurred during the course of police activity, therefore nothing was "taken" -- at least not in the "eminent domain" sense. In other words, the government never took Lech's house away from him. He was free to have it when the police were done with it, even if officers had rendered it uninhabitable.The appeals court aligns with the district court, saying there's a bright line between "taking" and "destroying," even if it's the government doing the destroying. Lech argued the (temporary) seizure of his house was for "public use," in the sense that the pursuit of a criminal is a service law enforcement provides to the public. The appeals court isn't willing to stretch the definition of "public use" quite that far, even if it means the government can destroy someone's home without having to worry about compensating them for the destruction.
[T]he Lechs urge us to disregard the distinction between the police power and the power of eminent domain in resolving this appeal. In support, they point out that “the Takings Clause ‘was designed to bar [g]overnment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’” Aplt. Br. 13 (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)). And they argue that upholding the district court’s summary-judgment ruling would do just that: it would force the Lechs to bear alone the cost of actions the defendants undertook in an effort to “apprehend a criminal suspect”—actions that were clearly “for the benefit of the public” as a whole.We do not disagree that the defendants’ actions benefited the public. But as the Court explained in Mugler, when the state acts to preserve the “safety of the public,” the state “is not, and, consistent with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate [affected property owners] for pecuniary losses they may sustain” in the process. Thus, “[a]s unfair as it may seem,” the Takings Clause simply “does not entitle all aggrieved owners to recompense.”Accordingly, we reject the Lechs’ first broad challenge to the district court’s ruling and hold that when the state acts pursuant to its police power, rather than the power of eminent domain, its actions do not constitute a taking for purposes of the Takings Clause. And we further hold that this distinction remains dispositive in cases that, like this one, involve the direct physical appropriation or invasion of private property.
The appeals court says destroying a house is just an unfortunate byproduct of law enforcement. While it does acknowledge this narrow reading of the Takings Clause won't encourage officers to be more careful with other people's property when apprehending suspects, it says this won't prevent officers from being held individually responsible for "willfully or wantonly" destroying property. But if this the bar the Tenth Circuit is setting, it will be almost impossible for plaintiffs to meet it without evidence officers were more destructive than they needed to be to effect an arrest.The law provides few protections for homeowners whose property comes between criminals and the officers pursuing them. While this is the end of the line for Lech's Fifth Amendment claims, he may still win enough from his surviving claims (negligence, intentional infliction of emotional distress, property deprivation under state law) to recover from his government-inflicted loss. Then again, it's going to be hard to prove officers did anything to Lech directly. If property destruction is just an unfortunate side effect of capturing criminal suspects, the lower court will likely side with the destroyers.
Remember Bob Murray? If you don't, then I highly recommend you go back and watch this 2017 episode of John Oliver's show in which he calls out Bob Murray, as a Trump-supporting coal boss, who pretends to be all about "protecting workers," and who insists that the election of Donald Trump will help save coal miner jobs.Murray then, famously, sued John Oliver and HBO in what was obviously a totally ridiculous SLAPP suit. He even tried to get a gag order on Oliver and HBO, to stop him from even talking about the lawsuit. The lawsuit did not go well for Bob Murray, though Murray took the somewhat amazing step of directly sending the judge a whiny letter about how people are being mean to him. The judge was not happy (parties in a case are certainly not supposed to be reaching out to the judges in their case directly).But at least Murray had the Trump administration and all those coal jobs he was going to bring back to save the coal industry, right? Oh, about that. Murray Energy has just declared bankruptcy and is being handed over to investors who are loaning it money to keep the business going.
Robert E. Murray, the U.S. coal baron who pressed the Trump administration to help save America's struggling miners, placed his company into bankruptcy as demand for the fossil fuel continues to weaken.Murray Energy Holdings Co. filed for Chapter 11 protection in the U.S. Bankruptcy Court in Columbus, Ohio, to restructure more than $2.7 billion of debt. The miner -- the largest privately owned U.S. coal company -- reached a restructuring support agreement with lenders who hold more than 60% of a $1.7 billion loan, the company said in a statement. The deal provides a new $350 million loan to keep operations going during the reorganization.
Of course, this shows yet another way in which Oliver's story about coal jobs was largely true: in that he noted that the decline in coal jobs in the US was a long, ongoing process, having little to do with any particular presidential administration, but the natural end result of a shift in energy sources, combined with new mining techniques and efficiencies.Perhaps rather than suing his critics (he sued a number of other news organizations as well) and running fundraisers for Trump or appearing on TV as a Trump supporter, Murray should have been focused on actually helping his company and its employees adapt for the future?
For years we've discussed the need for better and stronger "right to repair" laws in the United States. Were one to look for a pure example of legislative capture by corporate interests, it's hard to think of a better example than the way hardware makers of various stripes have managed to lock their own hardware behind various flavors of DRM and/or warranty restrictions to make it illegal for a person to get the thing they bought repaired. Arguing that such repairs fall within the scope of anti-circumvention laws, these hardware makers, including those of smartphones like Apple, have attempted to construct a world in which people don't just own what they bought, but are rather forced to continue to buy things they don't own when the hardware is damaged or fails them.Despite how ridiculous this all is, few states have even attempted to enact right to repair legislation, in large part due to corporate lobbying efforts. One of the latest to make the attempt was New Hampshire, except that the bill was blocked by representatives who apparently look to the legend of Marie Antoinette as some kind of a guidebook.
The bill would have forced manufacturers such as Apple to share repair manuals and parts with independent repair stores. House members didn’t kill the bill, but sent it back to committee for a year of interim study, citing security concerns and, in the words of Rep. John Potucek (R-Derry) the ubiquity, cheapness, and—in his opinion—disposability of new smart phones.“In the near future, cellphones are throwaways,” Potucek said, according to New Hampshire Business Review. “Everyone will just get a new one.”
Everyone? Nobody would want to repair their cellphone rather than spending the $700 to $1000 on a new one? The phrase "let them eat cake!" is said to be incorrectly attributed to Marie Antoinette, but we can certainly attribute "Cellphones are throwaways!" to Potucek. It's an absurd rebuttal on many levels, not simply that cellphones certainly aren't priced to be thrown away at the first sign of hardware trouble.There is also the simple fact that people having to get a new phone when theirs malfunctions is exactly the problem this legislation is attempting to address. It's the device version of, "Why attempt to give children healthcare? Parents can just make another baby!" It also ignores that a huge reason companies like Apple lobby so heavily against these laws is so it can monopolize the repair market, purposefully making it so expensive that buying new devices is the only real option.The comments also ignore just how many New Hampshire residents are already seeking to repair their devices.
“At our three locations throughout [New Hampshire], we serve tens of thousands of our neighbors and visitors each year,” Chad Johansen, president of NH iPhone Repair, said in an email. “Many of our customers are happy with their devices and would rather spend $100 to fix their current device instead of $1000 for a new one with little to no updates or added features. Now the [manufacturers] such as Apple and Samsung are making it harder for residents of NH to repair the devices they own.”
For purely greedy corporate interests, too. There is not a single thing about blocking this bill that benefits the NH resident. The only beneficiaries here are hardware manufacturers focused on stock prices that move with the waves of phones going out the company doors.The tone-deaf comments aside, it would be nice if Potucek could articulate a single reason in the interest of the New Hampshire citizen for blocking this law. My guess is he cannot possibly do so.
If you're a sports fan and you're not familiar with Deadspin.com, then, no, you're not a sports fan. The former Gawker property is certainly one of the most popular sports sites on the web and was a bright spot even when under Gawker Media's management. The charm of Deadspin has always been its irreverence, its humor, and its willingness to take on stories that fall outside of the realm of sports reporting. The fanbase of the site was built upon this editorial practice.Gawker fell to Hulk Hogan and Peter Thiel, of course, leading the site to be sold to Univision. During that time, Deadspin continued to operate normally. The site, along with other Gizmodo Media properties, was then sold to Great Hill Partners, a private equity firm. Great Hill put in place Paul Maidment as Editorial Director. Alongside Great Hill attempting to clamp down on the Deadspin staff's use of encrypted communications, leading to a fairly severe backlash from Deadspin, Maidment recently sent an edict to the Deadspin staff demanding that they not do any posts or reporting that fall outside of the world of sports.
The conflict was set off Monday, when Paul Maidment, the editorial director of G/O Media, sent a memo to the staff, telling them to focus their coverage on sports."Deadspin will write only about sports and that which is relevant to sports in some way," he wrote in the memo, which was first reported by The Daily Beast.Also on Monday, a Deadspin blog post that solicited reader feedback on the site's features, including autoplay video ads, was removed. The post had previously appeared across the portfolio of sites, including Kotaku and The Root. G/O Media CEO Jim Spanfeller personally directed the company's CTO to remove the posts, a staffer told CNN Business.Petschesky claimed in a tweet that in doing so management had violated the company's collective bargaining agreement with the Gizmodo Media Group union. (Gizmodo Media Group is the previous name of G/O Media.)
That would be Barry Petchesky, editor in chief at Deadspin. It's important to remember that the staff at G/O Media is a union that collectively bargained their contracts. G/O Media denies the violation of the union agreement, which requires a vote among several executives. Regardless, the message that Deadspin was to "stick to sports" from here on out didn't, ah, go over all that well.
Instead of heeding management's mandate, staffers filled Deadspin's homepage on Tuesday morning with non-sports stories that had been popular in the past, seemingly a nod to their argument that stories that are not strictly about sports have been favorites of Deadspin's regular readers. Perhaps most telling among the selections was "The Adults In The Room," an article published by former Deadspin editor-in-chief Megan Greenwell on her last day at the site in which she condemned the actions of Deadspin's parent company, G/O Media.The rebellion has not been without consequences. Deadspin interim editor-in-chief Barry Petchesky tweeted Tuesday, "Hi! I've just been fired from Deadspin for not sticking to sports."
Petchesky's firing kicked off a firestorm of its own, with GMG Union tweeting its condemnation of the firing in a statement. The Writers Guild of America East, which represents GMG Union, issued its own statement in solidarity. And, more importantly, the Deadspin staff continued to revolt.
Deadspin staffers published several new stories to The Concourse on Tuesday. Editor Tom Ley wrote about meeting "three good dogs" in Mexico City and fellow editor Dan McQuade wrote about a pumpkin thief. Writer Kelsey McKinney wrote about "acceptable wedding dress codes." None of the stories mentioned the word "sports" or had any connection to sports.
Magary, perhaps the site’s best-known writer, announced his resignation Thursday morning. He joined a list of staffers leaving in recent days. Most elected to quit over a management edict to “stick to sports.” While Deadspin was founded in 2005 as a sports-centric site, it has branched out into several coverage areas, from the arch and waggish to more serious political and social commentary.
With Magary out at Deadspin, the site might as well be dead. And for what? Because a private equity firm and its editorial puppet wanted a site that had built its own success out of not sticking to sports to start sticking to sports? To what end? It's well known that the "stick to sports" edict generally means "don't talk anything related to politics." Even for a sports site, that's just stupid.As stupid, in fact, as burning a successful site to the ground for no discernible reason.
Hamilton County (TN) Deputy Daniel Wilkey is one sick man. Recently, we covered his elevation into the ever-swelling ranks of Law Enforcement Officer What Have Been Sued. But Wilkey joined in the most spectacular fashion: he was sued twice in the same day.This wasn't the only thing that made Deputy Wilkey stand out. The allegations were highly unusual, to say the least. In one case, Deputy Wilkey claimed to be able to smell the odor of marijuana emanating from a car that passed him while his cruiser idled on a cross street. This and alleged illegal window tint were used to justify a stop that escalated into the nonconsensual anal search of the vehicle's passenger, resulting in the tearing of the man's anus and the aggravation of his existing hernia.The second lawsuit's allegations were just as disturbing. And they wandered off into areas not normally seen in civil rights lawsuits. The second plaintiff claimed Deputy Wilkey searched her car and her bra before telling her she'd get off with a lighter punishment if she agreed to be baptized in a nearby lake. This weird ritual was carried out in the presence of Deputy Jacob Goforth, who did nothing to stop Wilkey's forced baptism of a female citizen.Wilkey is facing two more lawsuits, according to WRCB TV. And there's even more weird sociopathy present in the accusations. On July 9th, Deputy Wilkey was sued by a man who claims the deputy used excessive force during a traffic stop over window tint.This lawsuit [PDF] claims the deputies performed an illegal search of his vehicle by detaining him until they could run a drug dog around his car. The drug dog supposedly alerted but no drugs were found. The deputies also allegedly told the man to stand with his hands on the hot hood of a vehicle, resulting in burns.The second lawsuit [PDF], filed October 17th, details Deputy Wilkey's harassment of six minors in a vehicle. Once again, Wilkey told the driver and occupants he had stopped them for illegal window tint. He was also accompanied by Deputy Jacob Goforth, who was present during Wilkey's forced baptism of another driver. Wilkey also claimed he "smelled weed," apparently to justify the actions he took next. He ordered all of the minors out of the car and began doing things only Deputy Wilkey would ever do.
Without any lawful justification, Wilkey then ordered the minors to take their cell phones and place the phones inside the vehicle.As Goforth stood by and watched, Wilkey began a series of comments to the minors about religion and said that he was "praying" for them.Interspersed in his comments about God, Jesus and religion were Wilkey's insults, foul language, and comments about how the minors will end up like their "piece of s#*t parents" and become "disappointments."
Well then.As Goforth stood by in apparent silent approval, Wilkey told the minors the "law" did not allow them to call their parents. He then ordered the single male minor to strip down. The minor stripped down to his boxers. Wilkey told the minor to take his boxers off. The minor refused.Wilkey then searched the five females, running his hands over their entire bodies and spending extra time on their breasts, buttocks, and crotches. He pulled out one minor's bra and "shook" it, supposedly looking for contraband. (He did the same thing to the woman he forcibly baptized.)The entire ordeal lasted nearly two hours, with the minors being subjected to Wilkey's prayers, insults, and groping while standing in the rain.The lawsuit then goes on to point out the Sheriff's Office has refused to discipline or fire a number of deputies and jailers who have engaged in serious misconduct. It has also failed to do anything with Deputy Wilkey other than give him a paid vacation.Wilkey has had four lawsuits filed against him this year. Three of the four allege their stops were predicated on window tint violations. Two of the four state Wilkey claimed he "smelled weed." Two of the lawsuits allege horrific levels of misconduct tied to Wilkey's very unique brand of religion. There's a pattern here and patterns are bad news for law enforcement agencies that hope to get themselves dismissed from lawsuits.Then there's Deputy Goforth who has stood by and allowed Wilkey to violate rights. Hopefully that will hurt him just as much as these lawsuits will hurt Deputy Wilkey.
No quantity of technologies is likely to generate a dent. Regardless of the many obvious ways it has enhanced our planet, it is required to adopt a critical stance towards it. Regrettably, together with the creation of new and intriguing tasks, information technology has also resulted in a growth in unemployment. It plays a key […]The post Call contacts or pals who learn of the university. appeared first on Adotas.