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February 2019
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The Greatest Trick The NFL Ever Pulled Is Convincing The World It Holds Trademark Rights That Don't Exist

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It's nearly my birthday again, which of course can mean only one thing: we have to write up a post trying to explain to people that the NFL is completely full of shit in what it thinks its trademark on "Super Bowl" allows it to restrict. This has been something of an annual series for us, since the NFL really enjoys pulling out legal threats to bully businesses and churches over using factual phrases that do not in any way represent actual trademark infringement. The NFL certainly can restrict who claims to endorse the Super Bowl, or who can vaguely indicate some affiliation with the NFL or an NFL team, but the league instead likes to pretend that nobody can factually state that there is a thing called a Super Bowl and that it occurs at this time of year.The output of this game of make believe is the world being a dumber, more cynical place. Businesses everywhere use euphemisms for the Super Bowl, such as "the big game." Everyone knows what the euphemism means, yet the NFL usually lets this kind of thing slide. This myth about what is and is not infringement has in part been perpetuated by non-Techdirt media outlets that parrot the NFL's claims, or at least warn everyone that the NFL is litigious. Which... thanks.Most recently, this type of parroting comes in the form of articles such as this one, unhelpfully titled "Fear The Shield." To be fair to that post, the whole thing is fairly full of comments from exasperated business owners being confused as to how the NFL can trademark facts when it cannot.

Eithnee Carline is the co-owner of DJ’s Wings in Falmouth and Hyannis. The Hyannis restaurant has been in business for 30 years, she said. She recalled back when some newspaper accounts referred to the establishment as “Super Bowl Headquarters.” Ms. Carline said she is aware that no such verbiage can be used in the business’s advertising for this weekend.“We use ‘The Big Game.’ Can’t even use Patriots, our favorite football team! Isn’t it crazy?” she said.The sandwich board in front of the American Legion Post on Shore Road in Gray Gables announces a “SUPERBOWL PARTY.” Similarly, the marquee in front of Dino’s Sports Bar on Route 151 in Mashpee invites people to come watch “PATS-RAMS” this Sunday. Asked about the NFL’s trademark protection of the team names, owner Constantinos (Dino) Mitrokostas said that is why he phrased it the way he did, not using the full name of the Patriots.“That’s why it says Rams Pats, that answers it all!” he said.
Indeed, except that this is all stupid. Venue owners somehow think that a sandwich board telling patrons to watch the Super Bowl at their establishment is infringement, but it very, very much is not. Business owners think that advertisements that make mention of the Super Bowl's existence without implying endorsement are infringement, but that absolutely are not. And, yet, this has been the un-reality that the NFL has successfully willed into existence with its legal team, aided by paragraphs in media outlets such as this.
Sunday, February 3 is the Super Bowl. As every sports fan knows, the New England Patriots will take on the Los Angeles Rams in what has also come to be known as Super Sunday.Fortunately, everything written above appears in a newspaper article, and not an advertisement for a business, such as a restaurant or a sports bar. Placing any one of those phrases—Super Bowl, Super Sunday, Patriots, Rams—in an ad of any kind could land the business owner in a heap of trouble with the National Football League. They are all NFL trademarks, and the league charges substantially for the right to use what has been registered for intellectual property protection.
That is the opening frame for the entire post at The Bourne Enterprise (um, the name, guys?), a local "paper" in Massachusetts. And it's at best incomplete and at worst horribly misleading. Using those phrases in an advertisement would not land real legal trouble except under certain circumstances and in certain contexts. In trademark law, the linchpin is public confusion over to the source or affiliation of a good or service or brand. Without that confusion, there's nothing to worry about, and there is nothing confusing about a bar saying that it would be an appropriate place to watch the Super Bowl.But every year, this is how I spend the run up to my birthday. I'd like to think that this some day will not be the case, but it's more likely that I can expect to be writing this post when I'm old and gray.

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posted at: 10:40pm on 01-Feb-2019
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Hollywood's Kinder, Gentler DRM Didn't Even Last A Decade... And Is Still Screwing Over Movie Fans

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Stop me if you've heard this one before: the legacy entertainment industry embraces a "new" DRM that it insists will change everything, and everyone will love it. And then, because of various reasons, they kill it off and people get screwed. Yeah, it's happened over and over and over and over and over and over again. It's one of the points we've raised from the very beginning on this site: buying into DRM means that you are relying on a company to continue to let you have access to the content you legally purchased a license to, and there's no requirement that they have to continue giving you access.And here we go again, with Ultraviolet. If you don't recall, we first wrote about Ultraviolet in 2010, when most of the major movie studios (notable exception: Disney) stepped up to support what they tried to pitch as a kindler, gentler DRM that wouldn't be so damn annoying. Of course, from the beginning it basically sucked and the studios started trying to give away bad movies to get people to sign up. And then, a few years later, they tried giving away more movies. The only other time in the last decade we mentioned Ultraviolet was that time that it pissed off the backers of a super successful Kickstarter project by making it difficult for thousands of people to watch the movie they'd backed.Anyway, Ultraviolet is now dead. The studios are killing it off and most people won't miss it. Of course, as with some of those previous stories, there is a half-hearted effort under way for the few people who actually used Ultraviolet to have a method of retaining access to the films they purchased, but you have to keep them tied to a specific retailer now. Of course, part of the reason for the shutdown of Ultraviolet is that Disney (who, as you recall, never joined UltraViolet, and went its own way) has built up its own system, Movies Anywhere. However, as the article above notes, Movies Anywhere is a bit of false advertising, as it's only available in the US. People outside the US are... pretty much screwed as of right now.As with many past DRM shutdowns, this really won't impact that many people, but that's kind of besides the point. It will still be a pain in the ass for the people who actually "did the right thing" according to the industry, and paid up. And they end up paying for a really annoying experience that could possibly even end with them no longer having access. Punishing the people who actually want to pay and want to support you seems like a really dumb way to run a business -- but here we are. This is yet another reason why some people who would otherwise want to pay end up pirating works anyway: they don't have to deal with this shit because they're not reliant on big, dumb studios deciding to keep DRM servers up for more than a decade.

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posted at: 6:10pm on 01-Feb-2019
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Court: Qualified Immunity Protects District Attorney Who Lied To State Legislators About A Wrongfully-Convicted Man

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Qualified immunity has taken the court system as far away from justice as any one doctrine can. Rights can be freely abused so long as the abuser does it in a novel way or can mumble something about "feared for my safety" while under oath. For the most part, it just sucks to be an average citizen whose rights have been violated. Unless you can show a court held this specific violation -- under very specific circumstances -- to be unlawful, you're stuck with zero recourse for obvious wrong perpetrated by the government.It's not just abusive cops that benefit from qualified immunity. It's also vindictive district attorneys, like the one in a recent case [PDF] reviewed by the Eleventh Circuit Court of Appeals. A man falsely accused of kidnapping and rape spent seven years in prison for a crime he didn't commit before being exonerated by a DNA test. The results of this test were given to district attorney Spencer Lawton, who confirmed the results. The conviction was vacated and the state wisely decided not to take another prosecutorial pass at the falsely accused man.So far, so good, except for the seven years of freedom wrongfully taken from Douglas Echols. When lawmakers introduced a bill offering compensation for Echol's wrongful imprisonment, Spencer Lawton decided to start lying.

Four years later, after the Georgia Claims Advisory Board recommended compensation for Echols, a legislator in the Georgia General Assembly introduced a bill to compensate him with $1.6 million for his wrongful convictions. But before the General Assembly voted on the bill, Lawton sent a letter and memorandum to several legislators opposing Echols’s compensation…[...]Lawton also told the legislators not to presume Echols innocent of kidnapping and rape because the vacatur of his convictions did not establish his innocence. Lawton urged the legislators not to compensate Echols unless he proved his innocence. And Lawton told the legislators that Echols remained under indictment for kidnapping and rape even though the indictment had been dismissed four years earlier when the state entered a nolle prosequi on the charges.
This lie -- specifically claiming Echols remained accused of two felonies -- was libel per se. Echols sued Lawton for violating his First and Fourteenth Amendment rights. The First Amendment claim alleged retaliation by Lawton for Echols' protected speech, namely advocating for a bill that would have compensated him for the seven years he spent in prison. The lower court said DA Lawton was entitled to qualified immunity. After review, the 11th Circuit, unfortunately, says the same thing:
Although we conclude that Echols’s complaint states a valid claim of retaliation under the First Amendment, we agree with the district court that Lawton enjoys qualified immunity because Echols’s right was not clearly established when Lawton violated it. We affirm.
Since the claim Lawton falsely made was libel per se, it should have been easier for Echols to clear this bar. The appeals court agrees wholeheartedly with this assertion. The defamation of Echols by the district attorney was made with actual malice, since it was the DA himself who verified the DNA test results and decided not to retry the case. Lawton knew no criminal charges were pending against Echols but told state legislators the exact opposite. Somehow, this petty bullshit Lawton performed for seemingly no other reason than to prevent someone else (i.e., taxpayers) from paying Echols for the years he spent wrongly imprisoned was not clearly established enough for the 11th Circuit to find in favor of the plaintiff.
Although Lawton clearly would have had fair notice that his alleged writing constituted libel per se under state tort law, he would not have understood that his alleged libel would have violated the First Amendment. No controlling precedent put Lawton’s alleged violation beyond debate.
In essence, state officials were free to libel former inmates in order to deter them from exercising their First Amendment rights up until the moment this opinion was published. Even though the court says Lawton had "fair notice," it still gives him a pass for engaging in retaliatory defamation. This isn't mitigated at all by the court's "we wish we could but our hands our tied" sentiments offered as a consolation prize to a man who spent seven years in jail for a crime someone else committed.
[W]e too condemn Lawton’s alleged conduct. But the Supreme Court has long ruled that qualified immunity protects a badly behaving official unless he had fair notice that his conduct would violate the Constitution…
Great. The court condemns it but refuses to punish it. The concurring opinion is just as uselessly disappointed in the outcome reached, but at least is a bit harsher in its assessment of the lying, defaming DA.
I further agree with the lead opinion’s conclusion that clear Supreme Court precedent prevents Echols from invoking the rubric of substantive due process as a basis to hold Lawton accountable for a First Amendment violation. But for this binding precedent, I would have concluded that Lawton’s statement “shocks the conscience.” An official’s conduct most likely shocks the conscience—and thus violates an individual’s substantive-due-process rights—if the conduct was “intended to injure in some way unjustifiable by any government interest.” Davis v. Carter, 555 F.3d 979, 982 (11th Cir. 2009) (emphasis added) (citation omitted).As applied to the present case, there can be no doubt that Lawton’s false statement to the Georgia legislature that Echols was still under indictment for kidnapping and rape was intended to injure Echols. This leaves the question of what possible governmental interest justified Lawton in making that libelous statement. I can think of none. Nor has any such justification been articulated by either Lawton or the district court. I suggest that this total silence is due to the fact that no such justification exists.
I guess we'll have to settle for being happy the next time a DA defames a wrongly accused prisoner while speaking to legislators about possible reparations in the Eleventh Circuit, the court will finally have some precedent on hand to punish state actors for adding literal insults to sustained injuries.

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posted at: 3:04pm on 01-Feb-2019
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US Newspapers Now Salivating Over Bringing A Google Snippet Tax Stateside

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As the EU is still trying to figure out what it's going to do about the highly contested EU Copyright Directive, it appears that at least one of the controversial parts, the ridiculous Article 11 link tax, is spreading to the US. David Chavern, the CEO of the News Media Alliance (a trade group representing legacy news publishers), is agitating in the NY Times for a US version of Article 11. The article if is so chock full of "wrong" that it's embarrassing. Let's dig in.

Facebook and Google have been brutal to the news business.
Citation needed. Seriously. Nothing in this piece explains how this is true. I know that lots of journalists claim it to be true, but they are lacking in evidence. The truth is Facebook and Google have been very good for some news operations, very bad for others, and all over the spectrum for others. It kinda depends on the news organization and the choices of those news organizations specifically. In other words: it's the news organizations' fault if they're suddenly having trouble because their traffic has dried up.
But this primarily reflects a failure of imagination. The tech giants are the world's best distribution platforms and could be an answer for journalism instead of a grave threat.
Again, for many news organizations, these platforms are an answer: an answer that drives traffic.
As readers have shifted to digital sources, the two companies have taken a large majority of online advertising revenue.
Note the verb choice: "taken." As if it was snatched away from the rightful owners: the legacy news business who did fuck all to adapt to the internet. No, the large majority of online advertising went to those platforms because those platforms provided a better result for advertisers. We can discuss whether or not that's a good thing, and whether or not advertisers are silly to focus on those platforms (indeed, I'd argue, they are!). But to blame Facebook and Google for making advertisers happier seems weird.
More important, the platforms now act as regulators of the news business determining what information gets delivered to whom, and when. With the flick of an algorithmic finger, those two companies decide what news you see and whether a publisher lives or dies.
They only do that if the news publications focused solely on chasing traffic, rather than building up loyal audiences who come directly to their sites. Nothing Google or Facebook do really has that much of an impact on our traffic. Because we don't rely on them for traffic. They send us some -- which is great -- but our strategy has always focused on loyal readers, not drive by traffic. So, no, Techdirt readers don't rely on those platforms to get our content. Nor should they.If your entire business strategy is based on some third party you can't control, it seems a little, well, dubious, for you to whine that they don't act the way you want them to.
The impact on journalism has been clear. Just within the past week, we have seen over 1,000 planned layoffs at Gannett, BuzzFeed and HuffPost, and no one thinks we are anywhere near the end.
This is also misleading. While, yes, there were some high profile layoffs that included a bunch of journalists -- and that sucks -- the 1,000 number is greatly exaggerated. As Peter Sterne pointed out, the vast majority of that 1,000 number (~800) came from "Oath" the Verizon-owned Frankenstein's monster made up of various properties from HuffPost to Yahoo to AOL -- and the majority of them were not journalists. So, yes, it's still bad to see these layoffs. But using this 1,000 number to imply that that many journalists lost their job is highly misleading, and pretty shameful for a guy who represents news publishers.
We can start with the fact that free isn't a good business model for quality journalism.
Free is not the fucking business model. Free has never been a business model. However, free can very often be a key part of a very compelling business model.
Facebook and Google flatly refuse to pay for news even though they license many other types of content. Both companies have deals to pay music publishers when copyrighted songs play on their platforms. And the companies also aggressively bid to stream live sports and entertainment content to run on Facebook Watch and YouTube. These deals are varied and often secret, but none of them are based on free.
And this may be the dumbest thing that Chavern has written in this entire article full of bad ideas. Google and Facebook pay licenses for that other content because they host that content full on their sites. They don't pay for news because they're not hosting the news, but rather sending traffic to those news sites. For free.
Why are the platforms so unwilling to pay news publishers for access to the quality journalism that users need and value?
Again, because you're comparing apples to oranges. This is comparing totally different situations in a way that makes no sense.
There's no reason those who produce the news shouldn't enjoy the same intellectual property protections as songwriters and producers (regulators in Europe are looking at replicating some of these safeguards for journalism).
These are not "the same intellectual property protections as songwriters and producers." News already has the same "intellectual property protections as songwriters and producers." It's called copyright and it applies to news as well as songs. The issue is that what's happening here is entirely different. Google and Facebook pay for hosting music. They're not hosting news (other than in very minor ways where news orgs choose to host on their platforms for specific purposes). Instead, Google and Facebook are sending people off to the news sites themselves, which should be a better deal, because then you have those people on your own damn site where you can offer all sorts of other things -- some of which might even make the publishers some money. Or, build a loyal fan base who won't need to go through those dastardly platforms in the future.And, yes, it's blatantly misleading to claim that the EU's ridiculous Article 11 is the EU "replicating some of these safeguards for journalism." Hell, this is close to journalistic malpractice from a guy who pretends to represent journalism. Remember, we already know what happens with an Article 11 type setup: it didn't magically lead to the big platforms paying news publishers, and it actually did significant harm to news publishers, in particular the smaller ones.
The tech giants are also run as walled gardens that minimize brands and separate publishers from their readers even while hoarding information about those same readers.
I don't think he knows what a "walled garden" means. And, again, these services work by sending readers to the news publication sites themselves. That's not "separating publishers from readers" unless the publishers are so clueless they do nothing to build a loyal community.
Imagine trying to build a trusted relationship with an audience when you can't even know who they are.
That's how every community works. You don't know who they are at first. You build up trust and maybe they tell you. But you need to work on building a direct relationship yourself. You don't sit there and just wait for the audience to magically find you and then blame Google when they don't.
Publishers need new economic terms that include more revenue and more information about our readers.
So, uh, build the new revenue models that involve building up a loyal community who chooses to share info and you get that. And Google and Facebook don't.
Facebook and Google also need to be willing to acknowledge investments in quality journalism through their algorithms. They are constantly on the defensive about spreading false and misleading news that hurts people. They could start to address the problem by simply recognizing that The Miami Herald is a much better news source than Russian bots or Macedonian teenagers and highlighting original, quality content accordingly.
Um, both Facebook and (especially) Google already do that. How does he not know this. Indeed, the entire point of Google is to promote the more trustworthy content. It fails sometimes, but this paragraph misleadingly suggests that Google treats Macedonian teens at the same level as it treats the Miami Herald and that's laughably wrong. You can't make good policy decisions if you simply are spouting off nonsense.
Recognizing and promoting publishers that have consistently delivered quality news content can't be that difficult for sophisticated tech companies. And there are a range of qualified independent ratings organizations, such as NewsGuard, that could help them separate the wheat from the chaff.
Again, that's exactly what Google already does.
Whether they like to admit it or not, Facebook and Google are at real risk when it comes to the news business. Under the adage You break it, you buy it, the platforms now own what happens when quality journalism goes away.
Facebook and Google didn't break news. Newspapers failed to adapt and now they're whining about it.A true leader for the news publishers wouldn't be begging platforms like Google and Facebook for money like that. He'd be helping those platforms adapt and build more loyal audiences, and experiment with more sophisticated business models. And, really, the most incredible part of this strategy from Chavern and the News Media Alliance is that it would only serve to do one thing: making those news publishers more reliant on Google and Facebook, giving them even more power.News organizations deserve better than to have a trade organization spewing such utter nonsense.

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posted at: 1:46pm on 01-Feb-2019
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Daily Deal: The Complete MySQL Bootcamp

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Whether you work in marketing, sales, or app development, chances are you'll have questions that only data can solve, which is why virtually everyone can benefit from learning MySQL. Based on SQL (Structured Query Language), MySQL is the world's most popular open-source SQL database and is used by the likes of Amazon, Apple, Twitter, many other top companies. The Complete MySQL Bootcamp serves as your SQL and MySQL primer, walking you through the basic syntax, queries, and more so you can add this data-driven tool to your workflow. It is on sale for $11.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

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posted at: 1:40pm on 01-Feb-2019
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Bogus Net Neutrality Comments Linked To Trumpland

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As we mentioned last October, there's several state AGs now investigating who was behind those bogus comments that flooded the FCC's website during its controversial net neutrality repeal. Millions of those fake comments used the identities of dead or otherwise oblivious people, and were posted by a bot pulling from a hacked database of some kind. The goal appears to have been to flood the zone with bullshit, undermining trust in the public's only chance to comment on what may just be the least-popular tech policy decision in modern internet history (though SOPA/PIPA got pretty damn close).Gizmodo's Dell Cameron, who has been an absolute marvel at digging through this bog, has dropped an impressive bombshell that fills in a lot of longstanding gaps in identifying who was behind this astroturfing effort. The subject is weedy, so here's the pertinent bit:

"An organization run by a former Trump campaign statewide director is being investigated by the New York attorney general's office for its role in submitting potentially hundreds of thousands of fraudulent comments to the Federal Communications Commission during the agency's 2017 efforts to rollback Obama-era net neutrality rules."
NY's AG had subpoenaed all of the companies that submitted bulk comments to the FCC during the repeal, including consumer groups. Many of these folks used what I affectionately like to refer to as "outrage-o-matic" form letter systems, which simply let users send a form letter complaint to government. That's perfectly legal. What may not be legal is identity fraud, as well as a lot of this murkier, coordinated behavior Gizmodo uncovered by astroturfing organizations like "Free Our Internet," a fake consumer-advocacy firm specifically built to apparently con the gullible into thinking net neutrality was some sordid "globalist" cabal:
"What's remained unreported until now is the source of the 37 identical Sharpsburg comments, which match those submitted on behalf of more than 300,000 Americans nationwide. That comment, which rails against Google, its former chairman Eric Schmidt, and global billionaires like George Soros, was authored by a group known as Free Our Internet, according to a page on its website, which has since been deleted.Free Our Internet's campaign against net neutrality, which it presents as a conspiracy by liberal globalists to take over our Internet, was first announced in a now-deleted press release on the website of Raven Strategies, a political consultancy whose client list includes, among others, Donald Trump for President."Christie-Lee McNally, the president of Raven Strategies and the executive director of Free Our Internet, was tapped by Trump two years ago to become his statewide director in Maine, where she formerly served as executive director for the Republican Party. According to the bio on her firm's website, she also served on the 58th presidential inaugural committee, working with cabinet-level nominees on the day of Trump's swearing-in.
Free Our Internet was just one of several Trump-linked organizations Gizmodo discovered flooded the FCC comment system, social media, and the newswires with bogus support for the FCC's historically-unpopular handout to big telecom. The utter nonsensical claim that protecting the health of the internet from Comcast and AT&T is a Soros-fueled globalist cabal was then in turn parroted by none other than Roger Stone:
Who had also been seeding the field with intellectually incontinent editorials on the subject:
"The Tech Left, funded largely by George Soros, had decided to champion under the banner of a benign-sounding Net Neutrality campaign and seize a once-in-a-lifetime opportunity to grab the moral high ground in their determination to allow the giant edge providers to censor the Internet to suit their ideological preferences ridding the Internet of conservative and libertarian content."
A claim that is, if you have even a fleeting understanding of net neutrality, complete and total dog shit. It should be clear by now that one of the more favored tactics of Trumpland is to flood the zone with absolute bullshit in a bid to shake the very foundations of truth itself, distracting the easily distracted from what, more often than not, winds up being a ham-handed handout to giant, unpopular corporations. It's a pretty basic but effective disinformation tactic. Especially a country already rendered intellectually mute by years of facts-optional, intentionally-divisive partisan infighting.In this instance, the supporters of killing popular consumer protections (partisans, ISP lobbyists) knew that killing net neutrality would result in a massive wave of anger by the bipartisan majority of Americans who (quite correctly) understand the move was little more than a grotesque handout to predatory telecom monopolies. So Trumpland crafted "alternative" messaging, completely unhinged from the truth, and flooded the internet with it in the hopes this would diminish the impact of the real public backlash. It seems that may have been the motivation for the FCC's decision to make up that fake DDOS attack (which you'll note tried to claim angry John Oliver viewers were "attacking" the FCC website) as well.What's very clear is there's still a lot of information to come on this as numerous state AGs and the GAO continue their investigation into this ouroborus of bullshit, and a lot of these policy shops and lobbying outfits should be very nervous right now. What's also clear is FCC boss Ajit Pai, with his own links to many of these Trumpland allies, went well out of his way to stop law enforcement from learning more. That's not going to be a great look as more details are uncovered, and the court system tries to determine whether Pai's decision to obliterate federal and state oversight at Comcast's behest violated the law or FCC rules.

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posted at: 12:42pm on 01-Feb-2019
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Canada's Bell Tried To Have VPNs Banned During NAFTA Negotiations

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Countries around the world continue to wage a not particularly subtle war on the use of virtual private networks (VPNs) and encryption. In Russia, the government has all but banned the use of VPNs by layering all manner of obnoxious restrictions and caveats on VPN operators. The goal, as we've seen in China and countless other countries, is to ban VPN use without making it explicitly clear you're banning VPN use. The deeper goal is always the same: less privacy and online freedom for users who use such tools to dodge surveillance or other, even dumber government policies.Of course there's plenty of companies eager to see VPN use banned as well, whether it's the entertainment industry hoping to thwart piracy, or broadcasters trying to hinder those looking to dance around geographical viewing restrictions. Lost in the hysteria is usually the fact that VPNs are just another security tool with a myriad of purposes, most of which aren't remotely nefarious and shouldn't be treated as such.Apparently, you can count Canadian telecom incumbent Bell among the companies hoping to ban VPN use. Anja Karadeglija, the editor of paywalled telecom news outlet the Wire Report, obtained documents this week highlighting how Bell had been pushing Canadian Foreign Affairs Minister Chrystia Freeland for a VPN ban to be included in NAFTA negotiations. Why? It doesn't want users using VPNs to watch the US Netflix catalog:

"In its submission, Bell argued that Canadians accessing content from a US service with a VPN unjustly enriches the US service, which has not paid for the Canadian rights but nonetheless makes that content available to Canadians. Bell's media arm reportedly spends millions on content for it streaming service, Crave TV, which allows Canadians to stream content from American networks such as HBO and Showtime."
Again though, it's not the VPN doing that. And if you want to stop users from flocking to better content catalogs elsewhere on the continent, you should focus your ire on the things causing that to happen -- like increasingly dated and absurd geo-viewing restrictions, and your own substandard content offerings that fail to adequately match up. That message was lost on Bell, however:
Canada should seek rules in NAFTA that require each party to explicitly make it unlawful to offer a VPN service used for the purpose of circumventing copyright, to allow rightsholders to enforce this rule, and to confirm that it is a violation of copyright if a service effectively makes content widely available in territories in which it does not own the copyright due to an ineffective or insufficiently robust geo-targeting system, the submission stated."
How exactly you're supposed to determine that somebody is using a VPN to not watch Bell's own television services isn't really explained, and the fact that enforcement would likely be technically impossible appears to have been an afterthought. As Canadian Law Professor Michael Geist was quick to note, trying to ban VPNs just as they're reaching critical mass as a partial solution to raging North American privacy scandals suggests Bell may not exactly have its finger on the pulse of common sense on this particular subject.

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posted at: 9:24am on 01-Feb-2019
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EU Drops Corporate Sovereignty For Internal Bilateral Agreements, But Top Court Adviser Says It Can Be Used In CETA

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As Techdirt noted last September, corporate sovereignty -- the ability of companies to sue entire countries for allegedly lost profits -- has been on the wane recently. One important factor within the EU was a decision earlier last year by the region's top court that investor-state dispute settlement (ISDS) -- the official name for corporate sovereignty -- could not be used for investment deals within the EU. The reasoning was that ISDS courts represented a legal system outside EU law, which was not permitted when dealing with internal EU matters. As a direct consequence of that ruling, the Member States of the EU have just issued a declaration on the legal consequences (pdf). Essentially, these are that all bilateral investment treaties between Member States will be cancelled, and that corporate sovereignty claims can no longer be brought over internal EU matters.However, that leaves an important question: what about trade deals between the EU and non-EU nations -- can they include ISDS chapters? In order to settle this issue, Belgium asked the Court of Justice of the European Union (CJEU) whether the corporate sovereignty chapter of CETA, the trade deal between the EU and Canada, was compatible with EU law. As well as clarifying the situation for CETA, this would also provide definitive guidance on the legality of ISDS in past and future trade deals. As is usual in cases sent to the CJEU, one of the court's top advisers general offers a preliminary opinion, which has just been published (pdf):

In today's Opinion, Advocate General Yves Bot holds that the mechanism for the settlement of disputes is compatible with the EU Treaty, the [Treaty on the Functioning of the European Union] and the Charter of Fundamental Rights of the European Union.
His argument is that ISDS courts can't bind national courts, so the latter's autonomy is not threatened, and thus corporate sovereignty chapters are compatible with EU legislation. That may be true as a matter of law, but ignores the political reality of corporate sovereignty. If huge fines are imposed by ISDS tribunals unless proposed changes to laws are dropped, governments frequently roll over and do as the corporations wish, because it seems the easier, cheaper option. So even though in theory corporate sovereignty cases can't override national laws, in practice that's often the outcome.However, this is only the Advocate General's view, which isn't necessarily followed in the main CJEU ruling. It will be interesting to see whether the EU's top court extends its earlier ruling on intra-EU investment agreements, and throws out ISDS for all trade deals, or whether it agrees with Advocate General Bot and permits corporate sovereignty chapters for things like CETA.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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posted at: 6:18am on 01-Feb-2019
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Appeals Court Says A Person Driving A Registered Vehicle On A Public Road Is Not 'Reasonably Suspicious'

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Well, let's see what government agents are claiming is reasonably suspicious these days. Ah, here it is: driving a registered vehicle on a public road. The streets are clogged with scofflaws, apparently. Thanks to the skill set of one Carlos Perez of the US Border Patrol, we can finally start putting these people away.This ultra-ridiculous assertion comes courtesy of an appealed motion to suppress that has made its way to the Fifth Circuit Court of Appeals. The government is the party doing the appealing, having come out of the losing end of Jeffrey Freeman's request to have evidence obtained during two stops by the Border Patrol tossed out.The suppression of the first stop isn't at issue as the government isn't challenging that particular suppression. But it wants to keep the evidence obtained in the second stop. The problem is Agent Perez's definition of "reasonable suspicion" isn't anywhere in the neighborhood of "reasonable." According to Perez, he stopped Freeman because he turned onto a public road that happened to bypass a Border Patrol checkpoint near Freer, Texas. Freer is 50 miles inland from the border, but the government has declared anything within 100 miles is under the control of the Border Patrol.But the road Freeman turned onto (FM 2050) is more than a detour around BP checkpoints. According to Perez's own testimony, a dozen homes and a handful of businesses can be accessed via FM 2050, making it far more than a way to avoid being hassled by the Border Patrol. Still, Perez insisted the road was only used by those transporting illegal immigrants or contraband, turning residents and business owners (along with their employees) into criminals that just haven't been caught yet.According to Perez, the BP stops almost every vehicle that turns onto FM 2050, reasoning that the very act of driving a public road is suspicious enough to justify a stop. Even Perez's own experience contradicts the narrative he's pushing. From the opinion [PDF]:

Agent Perez estimated the Border Patrol made approximately ten to twenty roving stops per week on FM 2050. He estimated that he had only conducted approximately twenty to thirty stops throughout his eight years there, and only two or three of those stops resulted in seizures.
During the stop, Agent Perez discovered Freeman's passenger was not a legal resident of the US. Freeman moved to suppress. The lower court found Perez's assertions about suspicious behavior ridiculous and stated his stop of Freeman was nothing more than a "fishing expedition."The Appeals Court is no more impressed with Perez's claims, even when the Wild West aspects of the "Constitution-Free Zone" are taken into account.
At this point, we are left with the following facts to be viewed from Agent Perez’s limited experience in detecting illegal activity: Freeman’s truck, a type commonly found in the area, was seen less than 50 miles from the border, it turned right onto a road known for smuggling, and his truck was registered to an individual. We conclude that these facts, without more, are not enough to support reasonable suspicion, especially when viewed through the eyes of an agent with minimal experience detecting illegal activity. Courts that have found reasonable suspicion, even in cases in close proximity to the border, have generally required more.
Suspicion isn't "reasonable" when it has the ability to sweep up almost every driver on the road.
If the facts of this case constituted reasonable suspicion, virtually anyone who drove a car registered to an individual and turned right onto FM 2050, a public road, would be subject to being stopped by Border Patrol agents. As the district court pointed out, had Agent Perez waited a little longer, he may have been able to develop reasonable suspicion; he did not.
Agent Perez said his extensive experience led to him drawing these unreasonable suspicion conclusions. The Appeals Court points out the opposite is true: Perez may have eight years experience as a Border Patrol officer, but he only participated in 20-30 stops on the road where he stopped Freeman. And he was only successful about 10% of the time. The only thing Perez can sufficiently claim expertise in is fishing expeditions. Even with all the leeway granted to border enforcement, he still only managed to rack up three wins. This isn't someone who knows the ins and outs of observing human behavior to spot immigration violations. This is someone hopping from traffic stop to traffic stop hoping to get lucky.

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posted at: 12:00am on 01-Feb-2019
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Stupid Patent Of The Month: IBM's Software Patent On Texting And Driving

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In the smartphone era, "distracted driving" is a serious, and well-known, problem. Official warnings about poor driving habits are as old as the automobile itself. The New York Times published a Pulitzer-winning series on distracted driving back in 2009.Increasingly, technological assists are available for those seeking to manage their smartphone's distractions while in the car. Apple integrated a "do not disturb while driving" mode into iOS 11, and Google has long had similar functionality in its Android Auto app. Multitudes of third-party smartphone apps exists to address the issue. Finally, more than 50 companies are working on what may be the ultimate solution to distracted driving: autonomous vehicles.Unfortunately, the U.S. patent system creates warped incentives for emerging software fields like road-safety features. Rather than competing in a challenging space, some players are seeking broadly-worded patents, then hope to sit back and extract profits later.That may be the strategy of the International Business Machine Corp., which has acquired more U.S. patents than any other company for decades now. This week, IBM was awarded U.S. Patent No. 10,191,462, describing a "Vehicle electronic receptionist."IBM likely has the resources to make technology to manage communications while driving. But the '462 patent describes nothing of the sort. Instead, IBM's patent simply describes a computerized decision-making process.The patent's Claim 1 describes a computer system that determines the "driving context" of a vehicle; analyzes an incoming communication; and then determines an "electronic action" in response, considering various weights and risk factors. The electronic action could be "taking a message, providing a silent or audible notification [or] providing an automated response."Other claims add more layers to the analysis, like considering road conditions, doing voice analysis on a voicemail, or considering whether a passenger is sleeping before deciding to put a call through.Essentially, IBM has described a futuristic car computer system that will analyze the driving conditions and the context of an incoming text or call, then use some unspecified type of AI to decide what to do about the communication. The specification is filled with empty platitudes typical of software patents, like "[t]he computer system may be described in the general context of computer system executable instructions, such as program modules, being executed by a computer system." Aside from hand-waving like this, the patent has essentially no information about how one would actually create the claimed system.

IBM: Ignore the "Troll Scare"

Some of the claims describe good ideas that could be useful parts of automotive software in the future. But the patent is just thata list of ideas, not instructions for executing the ideas or creating anything. IBM's patent offers no code, no algorithms, not even a vague description of how the rules might work.We've seen this problem before, in which the Patent Office awards a patent not to the first proven inventor, but to the first applicant who describes a task using technological and legal jargon that patent professionals respect. The Patent Office and the Federal Circuit have been far too willing to approve patents that merely state the idea of applying rules without even specifying what those rules are. The public gains nothing from companies getting patents on the mere idea of using an algorithm to solve a particular problem. Patents like the '462 patent leave all of the hard workactually writing, debugging, and deploying software that solves the problem under real-world conditionsas an exercise for the reader. And they allow IBM to exclude the public from making or creating any of the wide range of algorithms that these broad patent claims could ensnare.In our view, IBM's new patent should fail under the Supreme Court's Alice v. CLS Bank decision, which holds that you can't patent basic decision-making processes by adding references to generic computer hardware and software. Given that, it may come as no surprise that IBM is lobbying to throw out the Alice precedent. In a recent interview, top IP executives from IBM explained their plans to demolish Alice by getting Congress to re-work Section 101 of the patent laws, which bars abstract patents. "Every time we try to enforce a patent, we get a 101 defense that comes back at us," said IBM Chief Patent Counsel Manny Schecter. IBM VP Mark Ringes said he's hearing "positive messages from Congress" about changing Section 101 to better suit big patent owners.Ringes went so far to claim that the "troll scare is largely just noise now." That assertion flies in the face of the patent litigation landscape. By one estimate, about 90 percent of patent lawsuits filed last year in the tech sector were filed by non-practicing entities. IBM appears to be downplaying the damage done by patent trolls because its business interests have become aligned with them. IBM collected more than 9,000 patents in 2017 alone. It uses that massive storehouse of IP to fuel a licensing business that earns more than $1 billion per yearIn some cases, that means IBM can let other companies battle for dominance in a particular sector, then step in and demand licensing payments when it's clear who can pay. There's less need for IBM to build new social media apps, when the company can use a patent threat to collect $36 million from Twitter right before its IPO. There's less need to build an e-commerce business, when IBM can sue Amazon over an "electronic catalog" patent that dates back to 1994.Make no mistake: IBM has an incentive to pile up overly broad patents like this one because these patents might allow it to extract revenues from other companies' future products. A broken patent system encourages companies to use patents, rather than products, to assure dominance in key sectors like driving communications and autonomous driving. Getting rid of Alice would only make the system worse and lead to another flood of do-it-on-a-computer patents. We hope Congress agrees.Reposted from the EFF's Stupid Patent of the Month series.

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