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January 2020
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YouTube Takes Down Live Stream Over Copyright Claim...Before Stream Even Starts

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It seems that the concern over how YouTube is handling its platform when it comes to enforcing copyright claims is reaching something of a fever pitch. Hell, in just the last couple of weeks we've seen a YouTuber have his videos demonitized over copyright claims to the numbers "36" and "50", rampant abuse of ContentID even as the EU edges closer to making that platform a requirement through Article 17, and wider concerns about YouTube's inability to enforce moderation at scale in a way that makes even a modicum of sense. The point is that it's becoming all the more clear that YouTube's efforts at content moderation and copyright enforcement on its site are becoming a nightmare.And perhaps there is no better version of that nightmare than when one YouTube streamer found his live stream taken down when Warner Bros. claimed copyright on it... before that live stream had even begun. Matt Binder hosts the political podcast "DOOMED with Matt Binder." He also livestreams the show on YouTube. The night of the last Democratic Presidential debate, he scheduled a livestream to discuss the debate with a guest.

Earlier in the evening, I'd scheduled a YouTube livestream, as I always do the night of a debate, in order to discuss the event with progressive activist Jordan Uhl after CNN's broadcast wrapped up. I'd even labeled it as a “post-Democratic debate” show featuring Uhl's name directly in the scheduled stream title. These post-debate shows consist entirely of webcam feeds of my guest and myself, split-screen style, breaking down the night's events. Shortly after setting up the stream, which wasn't scheduled to start for hours, I received an email from YouTube:“[Copyright takedown notice] Your video has been taken down from YouTube.”The notice informed me that I had received a copyright strike for my scheduled stream. That one copyright strike was enough to disable livestreaming on my channel for the strike's three-month duration. If I were to accumulate three strikes, YouTube would just shut down my channel completely, removing all of my content.
Reasonable people can disagree on just how much collateral damage is acceptable when enforcing copyright. What no reasonable person can agree with is the idea that a livestream ought to be taken down and a 3 month stream ban be put in place over copyright on content that hasn't even been created yet. In fact, were there a perfect antithesis to the entire point of copyright law, it certainly must be this: the prevention of valid content creation via copyright claim.So, what happened? Well, it appears based on the notice that Warner Bros., parent company for CNN, issued the copyright claim. CNN hosted the debate and Binder's reference in the title of his stream may have caused someone at WB to think that this was either the stream of the event, which would be copyright infringement, or a stream of CNN's post-debate commentary, which would also be copyright infringement. This was, after all, a manual block, not some automated system. But, mistake or not, this shows a glaring flaw in CNN's enforcement of copyright.
“Your case is the most extreme I’ve heard about. Congratulations,” Electronic Frontier Foundation Manager of Policy and Activism, Katharine Trendacosta, said to me in a phone conversation on the issue. “This is the first time I've heard about this happening to something that didn't contain anything. And I have heard a lot of really intense stories about what's happening on YouTube.”
If there were any question that there are serious problems in YouTube's enforcement mechanism, this situation answers those questions. YouTube ended up reversing the copyright strike, of course, but the damage in this case had already been done. Binder was unable to stream that night, all because YouTube is so bent towards claimers of copyright rather than its own content producers that its enforcement cannot possibly work without massive collateral damage, such as this.I suspect we're going to continue to see these situations arise, until YouTube takes a hard look at its policies.

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posted at: 12:00am on 31-Jan-2020
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Lawsuit Says Clearview's Facial Recognition App Violates Illinois Privacy Laws

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Clearview has gathered a whole lot of (negative) attention ever since its exposure by Kashmir Hill for the New York Times. The facial recognition app developed by Hoan Ton-That (whose previous app was a novelty that allowed users to transpose President Trump's distinctive hairdo on their own heads) relies on scraped photos to perform its questionable magic. Rather than limiting themselves to law enforcement databases, cops can upload a photo and search a face against pictures taken from dozens of websites.The company's marketing materials claim cops have access to 3 billion face photos via Clearview -- all pulled from public accounts linked to names, addresses, and any other personal info millions of unwitting social media users have uploaded to the internet.Its marketing materials also claims it has been instrumental in solving current crimes and generating suspect lists for cold cases. So far, very few of these claims seem to be based on fact. That's only one of the company's issues. Another is the heat it's drawing from companies like Twitter and Facebook who claim photo scraping violates their terms of service. That's one for the courts and it's only a matter of time before someone sues.Someone has sued, but it's not an affected service provider. It's some guy from Illinois trying to fire up a class action lawsuit against the company for violating his home state's privacy laws. Here's Catalin Cimpanu of ZDNet with the details:

According to a copy of the complaint obtained by ZDNet, plaintiffs claim Clearview AI broke Illinois privacy laws.Namely, the New York startup broke the Illinois Biometric Information Privacy Act (BIPA), a law that safeguards state residents from having their biometrics data used without consent.According to BIPA, companies must obtain explicit consent from Illinois residents before collecting or using any of their biometric information -- such as the facial scans Clearview collected from people's social media photos."Plaintiff and the Illinois Class retain a significant interest in ensuring that their biometric identifiers and information, which remain in Defendant Clearview's possession, are protected from hacks and further unlawful sales and use," the lawsuit reads.
Hmm. This doesn't seem to have much going for it. And, believe it or not, it's not a pro se lawsuit. Whether it's possible to violate a privacy law by scraping public photos remains to be litigated, but it would seem the word "public" is pretty integral here. Unless Clearview found some way to scrape photos not published publicly, the lawsuit is dead in the water.It shouldn't take too long for a judge to declare public and private legally contradictory. This lawsuit was composed by a member of the bar, but it reads more like a Facebook note the lawyer published accidentally. From the lawsuit [PDF]:
Without obtaining any consent and without notice, Defendant Clearview used the internet to covertly gather information on millions of American citizens, collecting approximately three billion pictures of them, without any reason to suspect any of them of having done anything wrong, ever.
Wat? Just because Clearview is aggressively pitching LEOs doesn't mean Clearview can only scrape photos of people it suspects of wrongdoing. Yes, it's disturbing Clearview has decided to make its stalker-enabling AI available to people who can hurt, maim, jail, and kill you, but there's nothing on any law book that says collecting pictures of faces can only be done if the people are probably criminals -- even if the targeted end users of this software are people who go after criminals.Putting it in a sworn document doesn't make it any less ridiculous. But it does get more ridiculous.
[A]lmost none of the citizens in the database has ever been arrested, much less been convicted. Yet these criminal investigatory records are being maintained on them, and provide government almost instantaneous access to almost every aspect of their digital lives.
Facebook is collecting photos of people, almost none of which have been criminally charged. They reside in Facebook's database. Facebook is publicly searchable, and public profiles can be searched for photos, even by law enforcement officers. Is Facebook breaking state law by "collecting" photos of innocent people? No rational person would argue that it is. And yet, this is the same argument and it's no less stupid just because an actual lawyer is involved.Look, I also don't want Clearview pushing this "product," much less to people with the power to do incredible amounts of damage to anyone the AI mistakes for a criminal. But this isn't going to fix anything. The lawsuit makes better points about Clearview's end of the deal, which makes it easier for it to look over law enforcement's shoulder. Since Clearview hosts all the pictures on its own servers, it can see what cops are looking for and do its own digging into the personal lives of anyone cops might be thinking about targeting. That's an ugly byproduct of this service and Clearview hasn't said anything about siloing itself off from government queries.The claims in this suit are almost certain to fail. Clearview streamlines processes cops can perform on their own, like reverse image searches and browsing of social media accounts. Actions you can perform one person at a time without violating the Constitution (or state law), you can most likely do in bulk. For now. A more realistic approach would be to take edge cases to the Supreme Court, which has been more receptive to expanding the boundaries of citizens' expectations of privacy in the digital era. This lawsuit may raise limited awareness about Clearview (and discovery could be very interesting) but it's not going to end Clearview's scraping or deter law enforcement from using it. And it's certainly not going to earn a payout for the plaintiff.

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CBS Gets Angry Joe's YouTube Review Of 'Picard' Taken Down For Using 26 Seconds Of The Show's Trailer

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Joe Vargas, who makes the fantastic The Angry Joe Show on YouTube, isn't a complete stranger to Techdirt's pages. You may recall that this angry reviewer of all things pop culture swore off doing reviews of Nintendo products a while back after Nintendo prevented Vargas from monetizing a review of a a game. The whole episode highlighted just how out of touch companies like Nintendo can be with this sort of thing, given how many younger folks rely on reviews like Vargas' to determine where they spend their gaming dollars. Coupled with the argument that these commentary and review videos ought to constitute use of footage as fair use and it's hard to see why any of this was worth it to Nintendo.Or CBS, apparently. CBS recently got Angry Joe's YouTube review of 'Picard' taken down, claiming copyright on the 2 thirteen-second videos of the show's publicly available trailer that Vargas used in the review.

This is normally where some folks would suspect that ContentID or some automated system saw the images, resulting in an automated DMCA notice. Except that, as Vargas points out in his Twitter post, this was a manual block. Somebody at CBS saw Vargas' use of the footage and manually requested that the video be taken down on copyright grounds.And that's crazy. First, the use of clips like this to discuss a review or critique of content is squarely within the grounds of fair use.
Based on the screenshot, it appears that Vargas was discussing the clips while they were on-screen and Vargas argues that this should constitute fair use – a provision in copyright law that allows copyrighted material to be used without permission from the copyright holder for transformative purposes such as commentary and criticism.
Add to that the clips were from the publicly available trailer footage and this makes even less sense. The trailers are out there for anyone to see. Hell, the entire point of trailers is to be widely disseminated to entice interest in the show. Blocking their use would seem to be at odds with the marketing goals of CBS.And, yet, here we are, with CBS taking down a video for using trailer footage in a way that is clearly fair use. But some say YouTube doesn't have a copyright enforcement problem? Please.

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posted at: 12:00am on 30-Jan-2020
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Home Owners Association Threatens Residents With Lawsuit For Online Criticism

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The fights involving Home Owners Associations (HOAs) are so legendary and stereotyped that they've even been a minor plot point in Seinfeld. The general stereotype is that HOAs involve insane political power struggles, significantly out of proportion to the actual issues at hand. It is often an example of Sayre's law, in that the stakes are so little, yet the disputes are much more vicious and out of control than elsewhere. I'm thankful I don't live in a place with an HOA, but for many years I did (as a renter, not an owner) and remember receiving a long (7 pages typed, I believe) letter from an owner complaining about HOA battles and claiming that he was afraid to go to the next HOA meeting for fear of being shot by another HOA member, and going on and on about threats of violence.In other words, petty squabbles in HOAs all too frequently get blown way out of proportion, and people take them way too seriously. So, it's perhaps of little surprise that an HOA in Gilbert, Arizona, is taking things so far as to violate the 1st Amendment, and is threatening to sue residents over social media posts. Perhaps not surprisingly, the community in question has the type of name that would fit in well with Seinfeld's Del Boca Vista. In this case, it's Val Vista Lakes (VVL).

Following elections, the board proposed a social media policy restricting opinions about the board on Facebook. It was vehemently opposed by the community and quickly tabled.Then a letter from a law office representing the board showed up at Nardecchia's home."They are threatening if I don't remove any content that frames certain members of the board in a negative light," said Nardecchia.Threatening her with $250 daily fines as well as taking away her access to community amenities.The letter was sent from a law firm paid for by HOA fees to at least eleven residents.
Other HOA members received similar letters:
The letter demands posts that are disparaging, speculative or defaming to board members be removed immediately. It also cites past incidents including posts that said that board members altered or manipulated votes in annual elections and that board members purposefully retaliated against members in the association. Opinions that now come with consequences."I really do believe in that freedom of speech. We are a diverse community with diverse opinions and views, and we should be able to share that and have a discussion about that." said Nardecchia.
That last line of the first paragraph above is quite incredible: "opinions that now come with consequences." While it's not quoted, it sounds like something that may have been said in the letter, as it's a line we all too frequently hear from those filing or supporting bogus SLAPP-style lawsuits over free speech, that "speech has consequences." Of course, they are misunderstanding what that means. Speech has social consequences in terms of how others in the community view you, and on your reputation and trustworthiness. What opinionated speech cannot have under the 1st Amendment of the constitution, is legal consequences that chill and intimidate free speech.The article discussing all of this, from the local ABC affiliate in Arizona, concludes with a fairly understated comment reflecting what actual 1st Amendment lawyers told the news station:
At least two attorneys focused on constitutional law, told ABC15 the board is over stepping their authority and may want to take a closer look at the protection found under the first amendment.
May want to take a look? Uh, yeah. You can't sue people for stating opinions about you on social media. That's kind of a core aspect of the 1st Amendment.

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Italian Spyware Company Execs Arrested After Company Employees Spied On Innocent Citizens

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Any tool that gives people access to tons of personal data will be abused. Law enforcement databases are routinely misused by government employees. Ring -- law enforcement's favorite consumer home product -- collects tons of data about its customers and this data has been inappropriately accessed by Ring employees.The perfect storm of illicit surveillance and snooping comes from companies that sell spy tools to law enforcement but retain control of the servers where the personal data and communications are stored. An Italian developer, Diego Fasano, followed up his successful medical records app with something far more troubling: law enforcement spyware deployed with the aid of service providers.

The concept behind the company’s product was simple: With the help of Italy’s telecom companies, suspects would be duped into downloading a harmless-seeming app, ostensibly to fix network errors on their phone. The app would also allow Fasano’s company, eSurv, to give law enforcement access to a device’s microphone, camera, stored files and encrypted messages.Fasano christened the spyware “Exodus.”
The software was popular. Prosecutors all over Italy bought Fasano's product. So did Italy's NSA, L'Agenzia Informazioni e Sicurezza Esterna. There's no telling how much the government slurped from targets' phones over the years, but one prosecutor discovered the truth about eSurv's operations on accident. The information harvested by investigators wasn't walled off from the internet, only accessible by the prosecutor's office. It was accessible to anyone with the right credentials, stored thousands of miles away.
The Naples prosecutor began a more in-depth probe—and found that eSurv had been storing a vast amount of sensitive data, unencrypted, on an Amazon Web Services server in Oregon.The data included thousands of photos, recordings of conversations, private messages and emails, videos, and other files gathered from hacked phones and computers. In total, there were about 80 terabytes of data on the server—the equivalent of roughly 40,000 hours of HD video.
This meant eSurv employees -- at least the "Black Team" running eSurv's "Exodus" project -- could also access these recordings. There's no evidence (yet) that they did or that this very valuable stash of law enforcement intel was ever exfiltrated by hackers. But the fact remains law enforcement agencies did not have control of their harvested surveillance.This would have been a tempting stash of personal info for eSurv employees to dip into. But they didn't. They didn't have to because they were already deploying their malware to intercept communications and exfiltrate data from Italian citizens who had been tricked into installing eSurv's malicious, telco-miming apps.
In one instance, the Black Team hacked the phone of a 49-year-old woman from Crotone, a port city on the coast of Calabria, according to the prosecutor’s filings. The team collected the woman’s personal text messages to family and friends, and covertly recorded more than 3,800 audio clips using her mobile phone’s built-in microphone, chronicling the woman’s life and interactions as she went about her daily business, the filings say.In all, the Black Team spied on more than 230 people who weren’t authorized surveillance targets, according to police documents. Some of the surveillance victims were listed in eSurv’s internal files as “The Volunteers,” suggesting they were unwitting guinea pigs.
A court has already stated the company's product was "designed and intended.. to operate with functions that are very distant from the canons of legality." That should be an indictment of the law enforcement agencies who purchased it as well, but somehow it isn't. The proper paperwork may have been filed and approved by judges, but the spyware relies on cell service providers deceiving customers so malware can be implanted through fake apps.If the company has abused it tools, it's safe to say some of eSurv's customers have as well. For now, it's only eSurv's principals being investigated. But it does highlight the danger this malware poses, even when it's supposedly only being used for good.

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posted at: 12:00am on 29-Jan-2020
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Court Tosses Evidence From Pretextual Stop When Dashcam Shows Cop Had Zero Reason To Perform A Stop

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The #BacktheBlue types like to say stuff like "If you don't want to get arrested, don't break the law." But breaking the law is never a prerequisite for a traffic stop, search, and/or arrest. The nation's top court has already said cops don't actually have to enforce real laws. They can predicate stops on what they perceive the law to be, whether or not any actual law was broken.Pretextual stops have also been given the Court's blessing. As long as there's a good enough reason to initiate a stop, cops can begin fishing for info or consent for a search. But they have to be quick about it and they have to have something approximating reasonable suspicion to continue questioning unrelated to the stop. There's not enough of a bright line drawn anywhere that would ensure success in a lawsuit or a suppression hearing. Cops know this so they play the odds.Sometimes this doesn't work out for the cops. It's a rarity but it happens. And it's happening more frequently thanks to the Supreme Court's Rodriguez decision and the increasing use of cameras by law enforcement officers.The Newspaper has grabbed another ruling highlighting a completely bullshit traffic stop that led to drug and gun charges against the driver. The stop was completely pretextual. Pretext doesn't invalidate a stop but the pretext itself must be valid -- either a real traffic violation or one close enough to the real thing that the court can be persuaded to grant good faith.None of that happened here. The defendant sought to suppress the evidence recovered from the search of his car, arguing he did not break any traffic law that would have given the officer justification to initiate a stop. The government argued that the defendant did not activate his turn signal before performing a right hand turn. It claimed Officer Caleb Sarchet "observed" this violation himself. Officer Sarchet needs to get his eyes checked.From the decision [PDF]:

The video evidence from Officer Sarchet’s cruiser camera reveals that Defendant activated his turn signal prior to approaching the stop sign at the intersection of Poplar Street and Linn Street and prior to turning from Poplar Street right onto Linn Street. (Govt. Exhibit 2). The video also show that Defendant’s car approached that stop sign close to the righthand curb and that, after Defendant made the right turn, he proceeded in a legal manner for some distance and safely pulled to the curb when Officer Sarchet activated his police cruiser’s overhead lights. (Id.). Moreover, the video reveals that Defendant completed the right-hand turn with reasonable safety and no other traffic might have been affected by his movement. (Id.). In short, the video evidence establishes that Defendant made the right turn at the intersection in accordance with CMC Sections 506-80 and 506-84 after coming to a complete stop.
To "objectively" believe someone violated the law, someone has to, you know, actually violate the law. The officer also claimed he thought the state's window tint law was violated but undercut that assertion with another assertion, resulting in this own goal.
In light of Officer Sarchet’s testimony clarifying that the sole basis for the traffic stop was Defendant’s alleged turn signal violation, (Doc. 33 at Page 30), the Court need not analyze whether Officer Sarchet had probable cause to belief Defendant violated Ohio Revised Code § 4513.241.
The court distinguishes this cop's BS from the permissible BS allowed by the Supreme Court's Heien decision.
The Supreme Court held that that a police officer's objectively reasonable mistake of law can give rise to reasonable suspicion. In this case, Officer Sarchet stopped Defendant’s car solely because he believed that Defendant violated CMC § 506-80. However, the video evidence reveals that Defendant did not do so. Hypothetically, if a police officer’s alleged sole basis for a traffic stop was that a defendant ran a “green light” (which is obviously not a traffic violation), the Court doubts that the Supreme Court would determine that police officer’s action to be objectively reasonable, as disregard of fact and law are not the same as a mistake of fact and law.
All the evidence from the stop disappears. The defendant is free to go since every bit of evidence the government had came from a traffic stop predicated on someone observing traffic laws.

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You Don't Own What You Buy: The Tetris Edition

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In the convoluted realm that has become copyright, licensing agreements, and SaaS-style everything, we've had something of a running series of posts that focus on the bewildering concept that we no longer own what we buy. Between movies simply being disappeared, features on gaming consoles being obliterated via firmware update, and entire eBook platforms simply ceasing to work, the benefits of handing over very real dollars have never been more fleeting.This has been ingrained to the point of public reaction to this sort of thing amounting to that of placid cattle being shown the slaughter room. So, when Electronic Arts alerted those that purchased its iOS Tetris game that, surprise, this game is just going to not work any longer soon, public outcry wasn't even on the menu.

Players opening either game on their iOS devices are now greeted with a pop-up message that’s also included in the “What’s New” section of both Tetris Premium and Tetris Blitz’s listings in the iOS App Store warning them that the countdown on each title has officially begun:Hello Fans,We have had an amazing journey with you so far but sadly, it is time to say goodbye. As of April 21, 2020, EA’s Tetris® app will be retired, and will no longer be available to play. Kindly note that you will still be able to enjoy the game and use any existing in-game items until April 21, 2020. We hope you have gotten many hours of enjoyment out of this game and we appreciate your ongoing support. Thank you!
Hey, thanks for buying our game and, great news, you'll get to play what you bought just a little while longer, mmkay bye! Gamers, at this point, are quite used to beloved games suddenly being unsupported after a few years, meaning that the game won't be updated, won't work on modern operating systems, and might not have an active online gamer platform when support runs out. What's less common is for the game to have been constructed in a way that is completely unplayable, full stop, when the publisher flicks a switch.So why is this happening in this case? Well, because EA doesn't actually own Tetris. It just licenses the title to publish games. And, The Tetris Company has entered into a new licensing agreement for exclusive mobile game publishing with a different company.
Last year, The Tetris Company, Inc. and N3TWORK announced a multi-year agreement where N3TWORK will be the exclusive developer and publisher of new Tetris® games for mobile devices worldwide, excluding China. EA’s announcement that it will retire its Tetris®, Tetris® Premium and Tetris® Blitz games as of April 21 is a result of this agreement.The Tetris brand continuously aims to bring fans game experiences that are fresh, innovative and fun. We are excited about these new changes for Tetris on mobile and plan to share more news with fans very soon.
All of which I imagine is lost on the average person who bought EA's Tetris games, thinking that buying them meant they owned them. Can you imagine asking the average gamer if they would have made that same purchase if they realized that their game might simply disappear and cease to work if the Tetris people decided on a new licensing agreement with a different publisher?This is a mess and it's probably time for consumer groups to look into some kind of consumer protection rules that would either prevent this sort of thing or, more likely, make notifying buyers that they aren't actually buying the product more prominent than some subsection paragraph buried in a EULA.

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Supreme Court Asked To Tell Cops That Consenting To A Search Is Not Consenting To Having Your Home Destroyed

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Five years ago, an Idaho police department destroyed a woman's house to end a standoff with her dog. The Caldwell PD -- after having been given permission (along with a house key) to enter the home to see if a suspect was in the home -- decided this meant the Shaniz West had given them permission to fire grenade after tear gas grenade into the house before sending in the SWAT team to confront the family dog.Exhibit A:

Shaniz West sued, stating that this 10-hour "standoff" that rendered her house uninhabitable for three months was a violation of her Fourth Amendment rights. The district court agreed, finding the officers being sued could be held accountable for destroying her home, rather than just using the house key she had given them.Unfortunately, the Ninth Circuit Court of Appeals disagreed and granted the officers qualified immunity. According to the Appeals Court [PDF], this was an appropriate use of police force, given the circumstances. Mainly it was that the circumstances were unique enough, the court could find no way to say this was unreasonable. Without controlling precedent, the officers were allowed to escape the consequences of their ridiculous, house-destroying actions.Here's the Court's summary, which sounds like it was written by a cop PR shop.
The panel held that assuming the consent was voluntary and defendants exceeded the scope of the consent by shooting tear gas into the house, they were still entitled to qualified immunity. The panel held that given that defendants thought they had permission to enter plaintiff’s house to apprehend a dangerous, potentially armed, and suicidal felon barricaded inside, it was not obvious, in the absence of a controlling precedent, that defendants exceeded the scope of plaintiff’s consent by causing the tear gas canisters to enter the house in an attempt to flush the suspect out into the open. Officers Seevers and Winefield were therefore entitled to qualified immunity on this claim.
"Causing tear gas canisters to enter the house." It's like the canisters were just hanging around outside and the SWAT team's reasonable appearance on the lawn gave the canisters permission to hurtle themselves through the nearest windows and doors.There was no suspect to flush out. The person they were seeking had vacated the residence before officers stopped Shaniz West and threatened her with arrest if she didn't "consent" to a search of her house. What West actually consented to was far different than what the officers ended up doing, as the dissent pointed out.
The majority adopts an entirely implausible contrary reading of West’s consent, one a “typical reasonable person [would not] have understood by the exchange between the officer and the suspect.” Jimeno, 500 U.S. at 251. Because West “never expressed a limitation as to time, place within the house, or manner of entry,” the majority concludes that her consent that officers could “get inside” permitted a violent initial attack on her house with toxic objects. Maj. Op. at 13. In so concluding, the majority supposes that someone who permits law enforcement officers to “get inside [her] house” while handing over a key consents to the officers not entering the house but instead lobbing dangerous objects, such as tear gas canisters—or stones or bombs, for other examples—into the house from the outside. It further presupposes that, in providing consent to entry, a resident must preemptively forbid actions no one would guess are contemplated by the commonsense understanding of the articulated consent. That is not the law.
What this court finds reasonable for officers (destroying a house) does not align with what any "reasonable" non-cop would willingly permit when consenting to a search of their residence.
In concluding that the officers performed a search consistent with West’s consent, the majority does what no court has before—it holds that a “typical reasonable person” consenting to an entry to look for a suspect could be understood by a competent police officer as consenting to damage to his or her home so extreme that renders it uninhabitable for months.
There is still no finding that destroying a house while performing a consensual search is a violation of rights. The Ninth punted on drawing the line following this case, leaving officers free to "cause canisters to enter" houses in the future when performing searches for suspects.The Institute for Justice wants some precedent set. It's asking the Supreme Court to rule on this issue. The petition [PDF] seeks a ruling that would prevent officers from dodging lawsuits from citizens rendered homeless by consensual searches.
QUESTION PRESENTEDWhether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point caselaw.
It's a valid question. It's far more valid than the Ninth's conclusion: that consent to search is consent to destruction. Even given the circumstances of this case -- a potentially armed felon who was supposedly suicidal -- the officers had options they normally didn't have during warrant service: specifically, permission to enter the home and a key that unlocked the front and back doors.Instead of using the key to enter the house (or at least attempt to -- the front door also had a chain securing it, but it's not like a bunch of tear gas grenades were going to dislodge the chain), the cops decided to call in the SWAT team. They left the premises, met with the SWAT team, came up with a plan and did a couple of dry runs and three hours later, decided to start the "search."It wasn't until 4.5 hours later the key was even tried. It unlocked the back door, but redundantly because the glass had already been shattered by tear gas canisters, allowing officers to reach inside and unlock the door.As the petition points out, there's no reason to find precedent that directly aligns with law enforcement's actions here. It should have been plainly apparent to the officers that their actions were unreasonable.
The dissent did not purport to find a “closely similar case[ ] to guide the clearly established law inquiry[.]” App. 27. Instead, it found no such case was necessary because any competent officer would have understood he could not lawfully destroy a house simply because he had consent to enter it.
This should be obvious. If it were a car being searched, a person's consent to a search would not justify officers towing the vehicle to place away from the public and detonating it just because of the slim possibility something inside it might pose a threat to officers.Hopefully, the Supreme Court will take a look at this case, rather than decide it's up to the lower court to set a bunch of conflicting precedent -- or far more likely, continue kicking the QI can down the road. Giving officers permission to search your house should never mean giving them permission to leave you with no place to live.

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This Week In Techdirt History: January 19th - 25th

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Five Years AgoThis week in 2015, newly released documents from the Snowden leak revealed how the UK's GCHG collected emails from journalists and used compromised hardware to get data from iPhones, and how the NSA harvested data from other surveillance agencies. We also learned more about the DEA's role in the surveillance world, while the FBI was touting another of its own manufactured-then-foiled terror plots as evidence that the PATRIOT Act should be renewed.Meanwhile, a European Parliament report called for wide-ranging copyright reform that was actually good, a court soundly rejected the attempt by Omega to abuse copyright to stop Costco selling its watches, and Cory Doctorow rejoined the EFF to lead a project to eradicate DRM. Also, James Bond entered the public domain in Canada, which is worth highlighting because we came up with a darn good headline if I do say so myself.Ten Years AgoThis week in 2010, the US was trying to strongarm Costa Rica into adopting draconian IP laws by blocking sugar from the US market, Italian lawmakers were pushing their own draconian provision to require government authorization for all video uploads, Oxford University made the bizarre decision to ban students from using Spotify, and EU trade negotiators were calling Canada's public comment period on copyright law "a tactic to confuse". BPI was insisting that UK ISPs were overstating the cost of a three strikes program, and the IFPI was loudly complaining about piracy in its annual report that conveniently omitted its own study showing file sharers also buy lots. ACTA secrecy was in full swing, with bloggers getting kicked out of consultations in Mexico and the UK government telling MPs they couldn't see the details. And in one better-than-nothing-I-guess development, the judge who oversaw the Jammie Thomas-Rasset case reduced the completely insane damages of $80,000 per song to the less astonishing (but still arbitrary) figure of $2,250 per song.Fifteen Years AgoThis week in 2005, radio broadcasters were gearing up to be the newest entrants in the already overcrowded world of music download stores, TV broadcasters were trying to come up with ways to compete with DVRs, and Sony's Ken Kutaragi surprisingly admitted that DRM held up the company's innovation. The "war on file sharing" nabbed its first prisoners in the form of two men who plead guilty to "conspiracy to commit felony copyright infringement", while one state senator in California was promoting the idea that developers of file-sharing programs should be jailed.

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posted at: 12:00am on 26-Jan-2020
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Reminder: Our Public Domain Game Jam Of 1924 Works Has One More Week

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Here's a quick reminder that we're running a Gaming Like It's 1924 game jam, asking people to come up with both digital and analog games using newly public domain works from 1924. While the US spent decades not allowing any new works into the public domain, that changed last year (finally!), and now we're slowly getting works into the public domain drip by drip. But what good is a public domain if it's not used to inspire new creative works? So, as we did last year, we're running this contest for the month of January. All the rules are at the link above, but there are lots of great tools and templates out there for anyone wanting to try their hand at creating something.As always, Duke's Center for the Study of the Public Domain has a great list highlighting some newly public domain works, and there are some concepts and ideas in there that could be turned into really great games -- like E.M. Forster's A Passage to India or Hugh Lofting's Doctor Doolittle's Circus. And, of course, I remain curious if anyone will make a game out of George Gershwin's famed song "Rhapsody in Blue," considering that his family is upset about the whole concept of the public domain, and fought against it for years.Anyway, here's a chance to have fun and be creative. You don't need to be a game designer. You don't have to come up with something super polished. Just experiment a little and see if you come up with something cool.

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posted at: 12:00am on 25-Jan-2020
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Leaked Document Suggests Possible Facial Recognition Ban In Europe

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Bans of facial recognition tech are popping up across the United States. Facial recognition tech use by law enforcement is currently banned in the state of California and a few cities in Massachusetts have blocked local government agencies from deploying the tech.Given the tech's relative inability to do its job, along with a host of other concerns including built-in biases that make it far more likely minorities will suffer the effects of false positives, lawmakers are finally putting the brakes on approving facial recognition use by government agencies.A white paper leaked to Euractiv appears to indicate the biggest ban so far is under consideration in Europe -- one that would affect most of the continent.

The European Commission is considering measures to impose a temporary ban on facial recognition technologies used by both public and private actors, according to a draft white paper on Artificial Intelligence obtained by EURACTIV.If implemented, the plans could throw current AI projects off course in some EU countries, including Germany’s wish to roll out automatic facial recognition at 134 railway stations and 14 airports. France also has plans to establish a legal framework permitting video surveillance systems to be embedded with facial recognition technologies.
Noting that the GDPR requires certain information disclosures by companies and agencies deploying the tech, the white paper [PDF] suggests going live with facial recognition tech might be unworkable, given that every person passing by an AI-enabled cam would have to consent to data collection. It suggests a moratorium might be the best solution until all the regulatory kinks can be worked out.
Building on these existing provisions, the future regulatory framework could go further and include a time-limited ban on the use of facial recognition technology in public spaces. This would mean that the use of facial recognition technology by private or public actors in public spaces would be prohibited for a definite period (e.g. 3-5 years) during which a sound methodology for assessing the impacts of this technology and possible risk management measures could be identified and developed.
That's just one of the five options being considered by the European Commission. Unfortunately, it doesn't appear to be one of its favorites. The paper says the most likely approach the Commission will take is a combination of options 3, 4, and 5. The ban is option 2.But the GDPR definitely causes problems for the rollout of facial recognition tech in public places -- something the government agencies itching to deploy it don't appear to have considered seriously. It's pretty much unworkable unless the governments rolling these out are going to claim that being in a public place waives GDPR protections.The desire to subject citizens to biometric collections may result in a rewrite of the GDPR or a blanket exception for collections in public places. This will only make a bad law worse.But overall, the paper makes it clear the tech will be subject to tight regulation and much more oversight than we've seen deployed in the United States. Amendments to safety and liability laws are being considered that would allow tech companies to be held responsible for data breaches or misuse of collected biometric information. There would also be some sort of "trusted vendor" program put in place that would push companies to meet certain standards before they can be considered for government applications.The ban is a long shot but it's still in the running. Given the number of changes that may need to be made to make facial recognition tech comply with existing European privacy laws, a temporary moratorium might be the best call to make. Clearly, the legal atmosphere in Europe isn't exactly welcoming for new data collection tech. But the narrative that more surveillance = safer countries will always have powerful proponents, which may override the privacy concerns of millions of European citizens and subject them to mass surveillance.

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posted at: 12:00am on 25-Jan-2020
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In 'N Out Burger Continues Its Bullshit Pop-Up Technique To Keep Trademarks It Isn't Actually Using

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Roughly a year back, we discussed famed American burger chain In 'N Out Burger cynical process for keeping trademarks it owns in certain countries in place, despite the chain having no actual presence in the country. You might be wondering how a company with no storefronts or delivery business in a given country could possibly hold valid trademark rights to its brand, given trademark law's requirement that companies actually use their trademarks in commerce to keep them. The answer to that is that In 'N Out flies staff out to several countries once every couple of years and launches a pop-up store, slinging burgers for a short period of time before packing everything up and heading home. The chain claims that this is done to raise its profile in other countries for an eventual permanent launch. Except that those launches never actually happen.It's all very frustrating, if for no other reason than nobody can figure out why In 'N Out cares so much about trademark rights in a country it sure doesn't seem to have any interest in doing business in. Well, the confusion continues, as In 'N Out has announced it will once again launch pop-up stores in New Zealand.

American fast food chain In-N-Out Burger will open a pop-up store in Auckland on Thursday, sparking hopes for a permanent restaurant.The pop-up store will be be open between 11am and 2pm at the Portland Public House. But if history is anything to go by, burger lovers should not get too excited.
No, they shouldn't. Even this Stuff post indicates that there doesn't seem to be any question as to the chain's doing this strictly to keep its trademarks from being invalidated. The law in New Zealand requires a trademark holder to engage in "genuine use" of the mark within the country three years from it being granted. These pop-up stores are In 'N Out attempting to fulfill that genuine use requirement, although there are questions as to whether or not such a use actually counts as genuine.
Lawyer Clair Foggo, from Potter IP, said the company could be trying to protect its trademark in New Zealand. "What happens is if you have a trademark registration, you have three years from the date of registration to use it. If you don't use it in a genuine way it become vulnerable to revocation."If a trademark is not used within a three year period and lapses, a person can apply to have it removed from the register and may file their own application for the trademark claim, Foggo said."It sounds like they are trying to use their trademark in a genuine way, not just putting out some merchandise or using it on social media," she said. "However there may be some question whether operating a one day pop up shop amounts to "genuine" or token use."
So what counts as genuine use? It's delightfully ambiguous, of course. That ambiguity melts away, however, once you consider what the purpose of trademark law actually is, which is to prevent public confusion as to the source and association of goods and services. In that context, fleeting uses by major foreign brands preventing domestic companies from making use of similar branding makes absolutely zero sense. In fact, you could argue that In 'N Out's tactic achieves the opposite. Ironically, the use of pop-up stores only increases the brand awareness of the company within New Zealand, where the company mostly does not bother doing business. It may be only because of these pop-up stores, in other words, that a domestic company using similar branding would create confusion.Bottom line: it would be quite nice if In 'N Out would stop playing these trademark games, and ceased using hamfisted and cynical tactics just to have trademark rights in a country it doesn't want to do business in.

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posted at: 12:00am on 24-Jan-2020
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Copyright As Censorship: Gun Rights Advocate Gets Video Taken Down With Bogus Copyright Claim

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I still laugh when I remember a copyright maximalist think tanker insisting that copyright could never be used for censorship, because "copyright holders are champions of the First Amendment" and "have no reason to censor anything." Of course, for years, we've documented over and over and over again how copyright is regularly used as a tool for censorship. And now we've got another example. And however you feel about the 2nd amendment or gun advocacy, hopefully you can agree that it's a problem for the 1st amendment when someone -- no matter what their political viewpoints -- abuses false copyright claims to take down videos they dislike.Last week, a Twitter user posted a short 13 second video of Kaitlin Bennett, a sort of social media troll play acting as a gun rights activist/journalist (who has been reasonably criticized for questionable journalism practices), who does outrageous stunts to get more attention. In the video, Bennett first insults a woman's weight, which makes the woman reasonably angry at Bennett. Bennett responds by implying to the woman that she has a gun, and when the woman starts to calm down, Bennett suggests that her carrying a weapon was what "deterred" further escalation.No matter what you think of the video, the user who had posted it (who was critical of Bennett) soon was informed by Twitter that a DMCA takedown notice was filed against the video, which Twitter removed:

While Twitter did eventually re-enable the video, it does show yet another example of how copyright can and is used to try to take down non-infringing works. This is why we keep raising concerns about further expansions of copyright's power to censor. When you provide any tool that enables quick censorship, it will be used for such purposes. Even if Twitter eventually relented and put the video back up, the initial suppression of speech, by use of a legal tool, is still suppression of speech.

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posted at: 12:00am on 24-Jan-2020
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Researchers Scientifically Create Video Games To Benefit Cognitive Function

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For those of us of a certain age, where you're the right age to have grown up with video games as a staple of your youth entertainment experience while your parents basically grew up without them, the generational divide when it comes to gaming could not possibly be more stark. It is my belief that a great deal of the ongoing debate about whether there are harmful effects from playing video games is probably about to simply disappear as that parental generation begins to shove off this mortal experience. Gaming, after all, has been blamed for all sorts of things, even as research is starting to trickle in which suggests that video gaming in particular may have health benefits and is otherwise part of a healthy staple of entertainment experiences.That research will only get better and more prevalent as both video games become a larger staple of entertainment consumption in our culture and as a younger generation of researchers with an interest in the topic come of age. One example of that can be seen in the work done by NYU professor Jan Plass, who's team didn't even both trying to tackle whether video games are good or bad for people, but instead took a scientific approach to simply create games that are designed to benefit cognitive behavior.

University professors from New York and California designed and developed three digital games – available online and in the iOS and Google Play app stores – to help its users’ brains work more efficiently. While some digital games falsely claim to improve cognitive skills, these three games have actually proven to. Evidenced through a series of research studies, these games can help users boost memory, inhibition, and cognitive flexibility.“Can games actually have positive effects on players? We believe they can, and we designed three games to support learners in developing cognitive skills that researchers have identified as essential for success in daily life, executive functions,“ said Jan L. Plass, Paulette Goddard Professor of Digital Media and Learning Sciences at New York University’s Steinhardt School of Culture Education and Human Development and co-creator of the games.
Those executive functions are inhibitory control (attention span), working memory (cognitive processing), and cognitive flexibility (multi-tasking). Each game specifically works backwards from the goal of improving those functions and consists of tasks specifically meant to train the brain.What does this show? Well, at a bare minimum it demonstrates that the effect a game has on a person has nothing to do with the medium itself and has everything to do with the construction of the game and what it is designed to achieve. This isn't terribly nuanced and likely seems obvious to most of us, but it is certainly a refutation of the trope that "video games are bad" that far too many people still have. Games aren't bad. Games are games. Just as there is good television and books, as well as "bad" or empty calorie television and books, so too is it with video games.And, to be clear, the science indicates that these games work.
In addition to developing the games, Plass, Homer and Mayer published eight research articles reporting on the effectiveness of these games.“We found replicated evidence across multiple experiments that playing our games for two hours causes improvements in executive function skills as compared to a control group that plays an unrelated game,” said Mayer. “This is one of the few scientific experiments showing the benefits of game-based training on executive function skills such as being able to shift from one task to another or being able to keep track of a series of events. This work shows the benefits of designing games based on the cognitive theory of game-based training.”
Whatever is true about video games, it sure isn't that they are "bad", full stop. Instead, there are different kinds of games that create different kinds of cognitive effects. If we could all approach the topic with that as the baseline from now on, the conversations we have will be far more productive.

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posted at: 12:00am on 23-Jan-2020
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Houston Officer Behind Deadly Botched Raid Hit With Two Felony Murder Indictments

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Former Houston PD officer Gerald Goines is going to face murder charges. At least he's alive to face them. The victims of Goines' botched no-knock raid -- Dennis Tuttle and Rhogena Nicholas -- don't have the luxury of watching justice be done. The residents of the house were killed by police officers performing a raid targeting heroin that never existed, utilizing a warrant filled with lies based on statements made by a confidential informant who didn't exist, and drugs pulled from a cop car console.Goines is facing both state and federal charges. And the charges are still coming in. Multiple investigations are still ongoing. Nearly 14,000 cases linked to the now-disbanded Squad 15 (of the Narcotics Division) are under review by the District Attorney's office and dozens of pending cases have already been dismissed.The charges brought against Goines late last year are now officially backed by an indictment, as Jacob Sullum reports for Reason.

"Because officers lied, people died," Harris County, Texas, District Attorney Kim Ogg said today at a press conference where she announced a grand jury indictment of two former Houston narcotics officers who were involved in a January 2019 drug raid that killed a middle-aged couple in their home. The indictment confirms the state charges filed last August against Gerald Goines, who is accused of lying to obtain the warrant for the raid, and Steven Bryant, who is accused of subsequently backing up Goines' false portrayal of Dennis Tuttle and Rhogena Nicholas as dangerous heroin dealers.
Yes, it's incredibly easy to obtain a grand jury indictment. But the success rate drops precipitously when it's a cop being charged. This isn't a testament to the trustworthiness of grand jury proceedings, but rather an indication of just how irredeemable Officer Goines' actions were.It's impossible to know how many people's rights were violated by Officer Goines and the PD's Narcotic Division, but we can say definitively Goines caused the death of two people who had nothing in their house but a small amount of drugs for personal use. They were never dealers and did not use heroin. But Goines used a bunch of lies to turn a couple who had been married for 21 years into dangerous drug dealers, and instigated a no-knock raid that resulted in multiple injured cops and two dead Houston residents.Houston Police Chief Art Acevedo took over a troubled police department and promised greater officer accountability. He has failed to turn things around since his arrival in 2007. A narcotics unit doesn't become a flagrant abuser of rights overnight. It's something that steadily gets worse in the absence of accountability. Because no one felt compelled to engage in meaningful oversight, 14,000 cases linked to a single squad are now being reviewed for further evidence of illegality and misconduct.Acevedo failed this test as well. He initially offered his support for an officer now charged with murder. Police officials complain all the time about people drawing assumptions before all the facts are in, but they are the first to offer their support of officers' actions before all the facts are in. The facts are in. And the facts make the entire department look awful. Goines isn't an aberration. He's just the one who got caught.

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posted at: 12:00am on 23-Jan-2020
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Court Sides With Nintendo Over RomUniverse In Atttempt To Dismiss The Former's Lawsuit

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As most of you will know, a year or so ago saw Nintendo suddenly flip a litigious switch and begin going after all the ROM sites that had existed for a decade or more. The timing suggests that the company may have made this move out of a misguided attempt to support its release of several retro consoles that contained many of the games that the public could also simply get for free on these ROM sites. I say misguided because it's not as though Nintendo's aggression suddenly made free online ROMs unavailable. They are all still very much there through various means, but Nintendo's retro consoles sold like gangbusters anyway, because half the appeal in the product is the ease of use and the other half is in having the cool looking retro console next to the television.Most sites simply folded up and caved. RomUniverse, run by Matthew Storman, was one of the few that attempted to fight back. Despite the site making not just Nintendo Roms available, but also all kinds of other copyrighted media, Storman tried to crowdfund his legal defense before pivoting to representing himself in court. We're still in the early stages of the litigation. Storman sought a dismissal of the case by arguing that First Sale doctrine meant Nintendo had no claim to the Roms being offered on his site coupled with claiming to be a neutral service provider protected by DMCA safe harbors. We said at the time that the move was unlikely to work.And we were right. The court has now ruled for Nintendo against the motion to dismiss, stating that at best the claims that Storman makes are not properly made at this stage of the litigation, along with some comments that the claims probably aren't going to get Storman where he wants to go anyway.

After considering the arguments from both sides, US District Court Judge Consuelo B. Marshall has sided with Nintendo. In a ruling released yesterday, she denies the various arguments presented by Storman. RomUniverse’s operator wanted the case dismissed based on failure to state a claim, lack of jurisdiction, improper venue, insufficient service of process, and failure to join a party. None of these arguments convinced the court.Storman, for example, argued that Nintendo is not the owner of previously purchased games because consumers have the right to sell, destroy, or give them away. The Judge didn’t address this in detail but concluded that Nintendo’s copyright registrations are sufficient at this stage.
On the DMCA safe harbor claims specifically, the court acknowledges that it cannot determine whether RomUniverse meets the criteria for those provisions at this stage of the trial, at which no evidence has been presented. Nintendo's entire case here is that Storman's site doesn't act as a third party service provider. Asking the court to find otherwise when Nintendo hasn't been allowed to present evidence yet would make no sense. And, as the court goes on to note, Nintendo sued for trademark infringement and unfair competition claims as well, and DMCA safe harbors don't protect from those claims.
Therefore, the Court would be required to look beyond the pleadings to determine whether Defendant is a service provider who satisfies the statutory requirements for protection pursuant to the DMCA's safe harbors, which is improper on a Rule 12(b)(6) motion to dismiss.
As to Storman's claim that First Sale doctrine means that Nintendo failed to join the actual owners of the games that are the basis of the ROMs on his site, the court points out that's not how any of this works at this stage. Nintendo has alleged that Storman's site is liable and arguing that Nintendo also has to sue everyone else isn't very convincing.
Defendant argues Plaintiff has "failed to join the true and essential owners of copies known only to Plaintiff, or unknown." As discussed supra, Plaintiff sufficiently alleges ownership and "the owner of copyright ...has the exclusive rights to ...reproduce the copyrighted work in copies [and] to prepare derivative works based upon the copyrighted work." 17 U.S.C. § 106(1)-(2). Therefore, Defendant fails to demonstrate there are persons subject to service of process which, in their absence, would prevent the Court from providing complete relief among the existing parties or persons claiming an interest in the subject of this action. See Fed. R. Civ. Proc. 19. Accordingly, the Court denies Defendant's motion to dismiss based on failure to join an indispensable party pursuant to Rule ~12)~b)~~)•
And so the motion to dismiss is denied. We've made the point several times now that Nintendo has better ways to deal with ROM sites than this sort of litigation. That is still true. But none of that changes the fact that Storman and RomUniverse have a mountain to climb if it wants to successfully defend itself from this lawsuit.

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posted at: 12:00am on 22-Jan-2020
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California's Ban Of Facial Recognition Tech Killed Off San Diego's Mostly Useless Biometric Program

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California's ban on use of facial recognition tech by law enforcement showed the state's government is willing to get out ahead of potential privacy issues. The tech is as popular as it is unproven. Law enforcement agencies strongly believe facial recognition will help it apprehend criminals more efficiently, but the available data simply doesn't back up this belief.The tech is still pretty lousy at recognizing faces, kicking out false positives at an alarming rate. This also means it's not recognizing faces it should be recognizing -- the criminals and terrorists government agencies are convinced it will catch. They're also prone to bias, more likely to misidentify minorities, which results in increased targeting of demographics already heavily over-represented in most law enforcement agencies' paperwork.California's new ban affects mobile tech used by state agencies. This includes body cameras, smartphones, and tablets. That was enough to kill the San Diego's multiple facial recognition programs. The San Diego PD used 1,300 cameras to build a database of 65,000 images over the course of seven years. These images were matched against a much larger database run by the San Diego Sheriff's DepartmentThe program went into effect without the public being informed.

Introduced in 2012 by the countywide San Diego Association of Governments (SANDAG) without any public hearing or notice, the Tactical Identification System (TACIDS) gave law enforcement officials access to software that focuses on unique textures and patterns in the face—ear shape, hair, skin color—using the distance between the eyes as a baseline. In less than two seconds, the software compares those unique identifiers to a mugshot database of 1.8 million images collected by the San Diego County Sheriff’s office.
The San Diego PD used this database more frequently than any other agency with access to it, which included federal agencies like ICE. According to the PD, its increased access rate was mostly altruistic.
[T]he department used facial recognition scans more than 8,000 times in 2018, almost double the number in 2016, which it says was largely due to the formation of a new division, Neighborhood Policing Division (formed in March of 2018), aimed at addressing the issue of homelessness. SDPD equipped officers in the new division with TACIDS devices to help identify homeless people, who often do not have identification.
The SDPD did not say whether this use of the database actually resulted in correctly-identified homeless people. But the statement it did give Fast Company suggests its thousands of queries were mostly dead ends.
“While facial recognition could be a useful tool, we do not foresee the three-year moratorium on mobile face recognition use by law enforcement as having much of an impact on our department,” says Lieutenant Justin White, media relations director for the San Diego County Sheriff’s Department.
This statement is far more telling. While certain California law enforcement officials are bemoaning the ban, the San Diego PD must have already known the tech was over-hyped. If it worked as advertised, the local law enforcement agencies would have delivered a steady stream of success stories. But when something is a constant disappointment -- and you've decided you're going to use it anyway -- you avoid creating a paper trail.
Lieutenant White of the San Diego County Sheriff’s Department said they have not been tracking TACIDS successes in arrests and prosecutions, so they do not have any statistics. Neither does the SDPD, according to spokesperson Lieutenant Shawn Takeuchi.
That's the burial of bad news. There's no reason to give critics of sketchy surveillance programs any more ammunition than they already have to work with. The moratorium will have almost no effect on law enforcement in the state -- something that few agencies are willing to publicly acknowledge. They want the tech even though it has proven -- over the course of seven years -- to have added nothing to their ability to do their job.

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posted at: 12:00am on 22-Jan-2020
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City Of Dallas Shuts Down Business Of Man Who Called Cops Over 100 Times In 20 Months To Deal With Criminals Near His Car Wash

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Let's talk about nuisance abatement laws. These are laws cities can use to shut down businesses that appear to draw more than their fair share of the criminal element.If you're a fan of asset forfeiture, you'll love nuisance laws. By abdicating their law enforcement responsibilities, cities can have their lower cost cake and eat your property too. It's win-win for cities, who love to use laws like this to effectively seize property from citizens who have the misfortune to operate legitimate businesses in high crime areas.Here's how it works in Dallas, Texas. The city says business owners must pay for their own security devices and personnel to keep their businesses free of criminals. No business will be compensated for these additional costs. All cops need to do is throw a couple of placards at the business and the city takes it from there. Criminal activity in the area is now the responsibility of businesses in the area. Can't get criminals to get off your property? Too bad. It's the city's property now.

The Dallas police chief has a new tool in her arsenal to force home and business owners to address crime on or near their properties: shame.On Wednesday, the Dallas City Council passed a "nuisance abatement" ordinance allowing Police Chief U. Renee Hall to identify properties that tolerate criminal activity and try to get the owners to address it.The new ordinance allows city officials to slap a sign on properties identified as sites of "habitual criminal activity."
The first efforts involve shaming the business owners for things they likely cannot control. This isn't the only step taken, though. The placards are the beginning. If the city feels the business owner isn't doing enough to control crime in the area (surely that's a law enforcement job?), it can shut the business down and keep fining it for anything and everything it can think of until the business owner is insolvent and has to sell the property.A South Dallas car wash owner has been fighting the city on and off for most of three decades over its application of nuisance laws. The city has already shut down Dale Davenport's car wash. City council members claim Davenport is to blame for the crime that surrounds his business. It also claims he's done next to nothing to solve a problem he didn't create.Davenport fought back. He demanded the city turn over 911 call records linked to his business in order to show the problem isn't his, but the Dallas Police Department's. After several months of being stonewalled, he has finally obtained the documents he needs to show the city it's not doing all it can to combat crime. Jim Schutze of the Dallas Observer has been following this fight for years and has the details.
After a two-year tooth-and-nail battle with the city, Davenport’s lawyer, Warren Norred, recently forced City Hall to cough up the official record of 911 calls Davenport has been making all along, begging police to come to his place of business.
It's not just a few calls scattered over several months. Davenport called the cops constantly, asking them to come deal with the criminal element that seemed to feel it could just hang out at his place of business. The city says crime is Davenport's fault. The record(s) [PDF] show this is a failure of city agencies, most notably the Dallas PD.
On and on the 911 reports go for 414 single-spaced pages... And that covers only 20 months from 1/5/18 to 9/25/19. Dale Davenport and his father, Freddy Davenport, have been calling the cops to their property for 27 years.
Davenport is suing the city and the hundreds of pages of 911 calls are vital to his litigation. The city wants to take his property, claiming he hasn't fulfilled his obligations as a citizen and business owner. 414 pages of 911 calls says otherwise. Davenport (and his father before him) have been pleading for the city to clean up a crime-infested area filled with drug houses and the criminal element drawn to this area by the (apparently) unchecked drug trade.The PD's newly-formed Nuisance Abatement Team doesn't appear to have made any impact here, other than posting placards on businesses it believes aren't doing enough to fight the crime the Dallas PD should be fighting. Paying taxes should entitle you to city services, but only thing Dallas wants to give Davenport in exchange for his involuntary contributions is all the blame for the crime that surrounds him.Fourteen years ago, a state committee investigation [PDF] found Dallas' nuisance laws had been abused severely and regularly.
Sworn testimony before the house committee described specific cases of misuse of the statute by city officials such as: • Targeting of a few, select businesses in high-crime areas, while ignoring more serious crimes occurring on surrounding properties;
• Directing businesses to hire certain security personnel with the clear suggestion that hiring these select individuals would diminish the city's threatened enforcement of nuisance abatement;
• Parking a large number of police cars in the parking lot of a business owner as a retaliatory act toward that owner, who had challenged the city's nuisance action against him and had testified in court on behalf of an individual who was acquitted of charges for resisting arrest while on the business' property;
• Using calls to police requesting assistance by the business as marks against that business in the city's criteria for evidence of nuisance abatement violations;
• Directing a hotel property owner to run criminal history checks on all guests, which is a possible violation of the guests' civil rights and could potentially subject the business to legal liability; and
• Sanctioning a local car wash owner because marihuana was found in the pants pocket of a person working on the property. It was suggested by the city legal department that the owner needed to conduct random pat-down searches of persons working on the property on a regular basis -- an act prohibited by law even for law enforcement officers.
To sum up:
[T]he committees are gravely concerned that the problems stemming from Dallas' use of the nuisance laws are the result of a unique and incorrect interpretation of those laws by city officials -- wrongly taking the laws to mean that fighting crime is no longer the city's responsibility but has instead now become primarily the responsibility of private citizens and businesses; and that private citizens can be held strictly liable for crimes that take place on or near their property even when they are not involved in that crime, have taken affirmative steps to prevent the crime, are themselves victims of that crime, and have reported the crime, requesting the assistance of law enforcement agencies. Furthermore, the body of evidence available to the committees also strongly suggests that the city uses the nuisance laws to intimidate, promote cronyism, and inappropriately use law enforcement personnel, specifically uniformed police and code enforcement officers, to deliver not-too-subtle messages of coercion and retaliation to legitimate businesses and property owners who refuse to submit to such tactics.
It's 2020. Nothing has changed. The city continues to shrug off its responsibilities and put private business owners in the impossible position of clearing out nearby crime without relying on the law enforcement services the city is supposed to provide to taxpayers. I guess the city believes it's only obligation to business owners like Davenport is to staff 911 call centers. Other than that, they're on their own until the city shuts them down.

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

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Five Years AgoThis week in 2015, New York's top prosecutor was jumping into the war on smartphone encryption alongside UK Prime Minister David Cameron who appeared to express a desire to undermine all encryption, while President Obama announced a broad plan for "securing cyberpsace" that looked an awful lot like a law enforcement wish-list — all despite the fact that a leaked internal intelligence community document revealed recommendations for stronger and more encryption. And the NSA was apologizing for backdooring encryption, but in a "sorry we got caught" kind of way.Ten Years AgoThis week in 2010, we highlighted an excellent open letter to rock stars telling them to stop pretending they are fighting for up-and-coming artists with their copyright demands and anti-internet rhetoric. Marvel was trying to downplay Josh Kirby's work as part of the copyright termination fight, one school was trying to claim copyright over lesson plans while another was considering an anti-piracy campaign inspired by anti-drug campaigns, Grooveshark was sued yet again so negotiation-by-lawsuit could continue, and France's three strikes agency was caught pirating a font. But one big surprise was that the administrator of the OiNK torrent tracker, after explaining why he believed his system was legal, was found not guilty by the jury in a rare win sensible copyright.Fifteen Years AgoThis week in 2005, in a similar nice surprise, a file sharing network in South Korea was left alone by the courts. And who would think it was the head of Blockbuster Video in the UK who would be getting the right idea about how Hollywood needs to innovate if it wants to fight piracy. A new spam tactic was causing problems for the DNS system, company IT departments were struggling with what to do about personal devices, and paid search keywords were becoming a major public relations battleground. This was also the week that Apple released the first Mac Mini and the iPod Shuffle.

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City Of Dallas Shuts Down Business Of Man Who Called Cops 414 Times In 20 Months To Deal With Criminals Near His Car Wash

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Let's talk about nuisance abatement laws. These are laws cities can use to shut down businesses that appear to draw more than their fair share of the criminal element.If you're a fan of asset forfeiture, you'll love nuisance laws. By abdicating their law enforcement responsibilities, cities can have their lower cost cake and eat your property too. It's win-win for cities, who love to use laws like this to effectively seize property from citizens who have the misfortune to operate legitimate businesses in high crime areas.Here's how it works in Dallas, Texas. The city says business owners must pay for their own security devices and personnel to keep their businesses free of criminals. No business will be compensated for these additional costs. All cops need to do is throw a couple of placards at the business and the city takes it from there. Criminal activity in the area is now the responsibility of businesses in the area. Can't get criminals to get off your property? Too bad. It's the city's property now.

The Dallas police chief has a new tool in her arsenal to force home and business owners to address crime on or near their properties: shame.On Wednesday, the Dallas City Council passed a "nuisance abatement" ordinance allowing Police Chief U. Renee Hall to identify properties that tolerate criminal activity and try to get the owners to address it.The new ordinance allows city officials to slap a sign on properties identified as sites of "habitual criminal activity."
The first efforts involve shaming the business owners for things they likely cannot control. This isn't the only step taken, though. The placards are the beginning. If the city feels the business owner isn't doing enough to control crime in the area (surely that's a law enforcement job?), it can shut the business down and keep fining it for anything and everything it can think of until the business owner is insolvent and has to sell the property.A South Dallas car wash owner has been fighting the city on and off for most of three decades over its application of nuisance laws. The city has already shut down Dale Davenport's car wash. City council members claim Davenport is to blame for the crime that surrounds his business. It also claims he's done next to nothing to solve a problem he didn't create.Davenport fought back. He demanded the city turn over 911 call records linked to his business in order to show the problem isn't his, but the Dallas Police Department's. After several months of being stonewalled, he has finally obtained the documents he needs to show the city it's not doing all it can to combat crime. Jim Schutze of the Dallas Observer has been following this fight for years and has the details.
After a two-year tooth-and-nail battle with the city, Davenport’s lawyer, Warren Norred, recently forced City Hall to cough up the official record of 911 calls Davenport has been making all along, begging police to come to his place of business.
It's not just a few calls scattered over several months. Davenport called the cops constantly, asking them to come deal with the criminal element that seemed to feel it could just hang out at his place of business. The city says crime is Davenport's fault. The record(s) [PDF] show this is a failure of city agencies, most notably the Dallas PD.
On and on the 911 reports go for 414 single-spaced pages... And that covers only 20 months from 1/5/18 to 9/25/19. Dale Davenport and his father, Freddy Davenport, have been calling the cops to their property for 27 years.
Davenport is suing the city and the hundreds of pages of 911 calls are vital to his litigation. The city wants to take his property, claiming he hasn't fulfilled his obligations as a citizen and business owner. 414 pages of 911 calls says otherwise. Davenport (and his father before him) have been pleading for the city to clean up a crime-infested area filled with drug houses and the criminal element drawn to this area by the (apparently) unchecked drug trade.The PD's newly-formed Nuisance Abatement Team doesn't appear to have made any impact here, other than posting placards on businesses it believes aren't doing enough to fight the crime the Dallas PD should be fighting. Paying taxes should entitle you to city services, but only thing Dallas wants to give Davenport in exchange for his involuntary contributions is all the blame for the crime that surrounds him.Fourteen years ago, a state committee investigation [PDF] found Dallas' nuisance laws had been abused severely and regularly.
Sworn testimony before the house committee described specific cases of misuse of the statute by city officials such as: • Targeting of a few, select businesses in high-crime areas, while ignoring more serious crimes occurring on surrounding properties;
• Directing businesses to hire certain security personnel with the clear suggestion that hiring these select individuals would diminish the city's threatened enforcement of nuisance abatement;
• Parking a large number of police cars in the parking lot of a business owner as a retaliatory act toward that owner, who had challenged the city's nuisance action against him and had testified in court on behalf of an individual who was acquitted of charges for resisting arrest while on the business' property;
• Using calls to police requesting assistance by the business as marks against that business in the city's criteria for evidence of nuisance abatement violations;
• Directing a hotel property owner to run criminal history checks on all guests, which is a possible violation of the guests' civil rights and could potentially subject the business to legal liability; and
• Sanctioning a local car wash owner because marihuana was found in the pants pocket of a person working on the property. It was suggested by the city legal department that the owner needed to conduct random pat-down searches of persons working on the property on a regular basis -- an act prohibited by law even for law enforcement officers.
To sum up:
[T]he committees are gravely concerned that the problems stemming from Dallas' use of the nuisance laws are the result of a unique and incorrect interpretation of those laws by city officials -- wrongly taking the laws to mean that fighting crime is no longer the city's responsibility but has instead now become primarily the responsibility of private citizens and businesses; and that private citizens can be held strictly liable for crimes that take place on or near their property even when they are not involved in that crime, have taken affirmative steps to prevent the crime, are themselves victims of that crime, and have reported the crime, requesting the assistance of law enforcement agencies. Furthermore, the body of evidence available to the committees also strongly suggests that the city uses the nuisance laws to intimidate, promote cronyism, and inappropriately use law enforcement personnel, specifically uniformed police and code enforcement officers, to deliver not-too-subtle messages of coercion and retaliation to legitimate businesses and property owners who refuse to submit to such tactics.
It's 2020. Nothing has changed. The city continues to shrug off its responsibilities and put private business owners in the impossible position of clearing out nearby crime without relying on the law enforcement services the city is supposed to provide to taxpayers. I guess the city believes it's only obligation to business owners like Davenport is to staff 911 call centers. Other than that, they're on their own until the city shuts them down.

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Airbus Asks Court To Dismiss Chuck Yeager's Lawsuit, Pointing Out It Doesn't Allege Anything Actionable

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You may recall that last summer we wrote about how American aviation legend Chuck Yeager decided to sue Airbus when the company mentioned the fact that Yeager broke the sound barrier in marketing material. Yeager's lawyer is Lincoln Bandlow, who has spent much of the past few years as a copyright troll after a formerly respectable career in which he once touted himself a free-speech fighter. His complaint, however, served mostly as comedic material. There were claims of trademark infringement and violation of Yeager's publicity rights. Neither made much sense, as repeating a historical fact, even in marketing material, does not constitute either violation and is clearly protected speech. It was only a matter of time before Airbus responded and now we have that response.Airbus is apparently seeking dismissal by the court on two grounds. The first, and least interesting, is on jurisdictional grounds, as you can read in the filing (which other news sites seem not to have included for reasons beyond me).

Plaintiffs allege that AIRBUS U.S. has offices throughout the United States,including an office in Huntington Beach, California..., and that AHI isbased in Grand Prairie, Texas..... But neither company is incorporated inCalifornia or has its principal place of business in California, nor are they anyallegations in the Complaint that could even remotely warrant deeming this anexceptional case. Accordingly, under Daimler, general jurisdiction in California isprecluded. See, e.g., Martinez, 764 F. 3d at 1070 (noting that Daimler rejected theargument that general jurisdiction is present when a defendant engages in asubstantial, continuous, and systematic course of business in a state; denyingassertion of general jurisdiction when forum is not state of incorporation or principalplace of business of defendant); Perry v. Brown, 2019 WL 1452911, at *5 (C.D. Cal.Mar. 13, 2019), aff'd and remanded, 2019 WL 5787987 (9th Cir. Nov. 6, 2019) (nogeneral jurisdiction over defendant incorporated in Tennessee; recognizing that thereis nothing about this case that would suggest it is an exceptional case that wouldjustify finding general jurisdiction outside of Defendant's state of residency.).
So, yeah. Nothing about this case makes it exceptional to escape the normal jurisdictional restrictions. Given its overall flimsy nature, I wouldn't be shocked to see the court comply with the dismissal on this alone.But the response goes on to point out that Yeager and his lawyer seem to have gotten very, very confused about which company he's supposed to be suing, believing that a European company is connected to an American company, when they're actually not.
Plaintiffs do not allege that either AHI or AIRBUS U.S. committed anyintentional act, let alone any intentional act that is relevant to the claims in theComplaint. The only intentional acts alleged in the Complaint relate to the use ofYeager's name in the 2017 statement from the Paris Air Show, the publication of thestatement on the Airbus.com website, and the alleged video of Yeager visiting Munichand Toulouse. Yet, there are no allegations in the Complaint even suggesting that anyof this--all of which allegedly took place in Europe--had anything to do with Texas-basedAHI or Virginia-based AIRBUS U.S.In fact, the only mention of either of these Defendants in connection with thesubstantive allegations of the Complaint is the statement in Paragraph 21 that Lutz Bertling was the CEO of Eurocopter which, Plaintiffs' allege, is the predecessorof Defendant AHI.... But that assertion is demonstrably false. Thecompany of which Bertling was the CEO is Eurocopter S.A.S., the prior name ofAirbus Helicopters S.A.S., the French company that has not been named in this action.
The response goes on to point that even if you could say that suing American companies for actions of a different (even if connected) European company, none of the actions that are being sued over involved conduct aimed at California, where the suite has been filed:
The actions relating to the 2017 statement and the alleged undated video werenot expressly aimed at the state of California. The challenged statement was made inFrance about a European-focused project and then published on a passive websiteregistered by a European company that is not directed to any particular location.... Beyond the fact that the 2017 statement is in English,there is nothing to indicate that it was directed specifically at the United States, muchless that it was expressly aimed at California or any other specific place within theUnited States. In fact, the repeated use of British spelling in the statement (not tomention the substance of the statement) confirms that, if anything, the statement wasdirected to a European audience, not to the United States more generally or toCalifornia specifically. The allegations about the supposed misuse of a video made in2008 in Europe are sparse, to say the least. There certainly are none connecting thealleged misuse of the alleged video to California.
There's also a statute of limitations problem to toss on top of everything else, which they note Yeager should certainly know about since some of his previous similar lawsuits have been tossed out for this reason:
The Complaint alleges that Plaintiffs learned of the alleged misuse of thispurported video sometime in 2012--more than six years before the Complaint wasfiled in September 2019. Because all of Plaintiffs' claims are subject to statutes oflimitations well short of six years, they are all time-barred. Indeed, the Ninth Circuithas affirmed dismissal of several of Yeager's prior lawsuits based on similar types ofclaims because he filed them beyond the applicable limitations periods.
And then after all that, finally, the complaint highlights that even if jurisdiction is proper, and even if they get lumped in with the other companies, the whole thing is still a joke because Yeager admits in his complaint that Airbus has the right to do what it did:
These allegations do not state a violation of any intellectual property or contractrights. Plaintiffs expressly allege that Airbus had the right to show the purportedvideo to employees. That is, the Complaint does not allege any facts showing thatAirbus used Yeager's name or likeness beyond what Plaintiffs allege Yeagerexpressly authorized.
As we said in our original post, there doesn't appear to be anything at all wrong with what Airbus did in referencing a fact about Chuck Yeager. On a more personal note, it's quite sad to see an American hero reduced to trying to profiteer off of the mere mention of his achievements.

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Why Is The NYC MTA Going After A Random Artist Who Created A Different Subway Map For Infringement?

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It's been a while since we last wrote about the New York City Metropolitan Transportation Authority (MTA), but in the past, it's always been for incredibly stupid reasons. There was the time it claimed it owned the facts of its schedule and went after someone who created a better scheduling app. There was the time it claimed that its "unlimited rides" card really meant no more than 90 rides. We didn't write about this other one, but a few years back, the MTA actually sued a bagel place for calling itself "F Line Bagels." And now we have it filing an incredibly questionable copyright takedown notice over someone making a nicer subway map.The NYC Subway map is fairly iconic, but that has never stopped people from making their own variations. Indeed, making new subway maps of NYC and many other metropolitan train systems is something many people do (there's even a -- somewhat addictive and amazingly fun -- subway map design simulation game called Mini Metro). Jake Berman is one of many people who redesigned the NYC subway map, after getting upset with the official MTA subway map. His map is consider so useful compared to the official one, that the Wikipedia page for the NYC subway map shows his directly next to the official map:

That's Berman's map on the left there. And he has it in a few places, including Etsy. And for unclear reasons, the MTA sent a copyright infringement takedown notice over the map. The Vice article, linked above, includes one of the best quotes ever about this kind of thing from copyright lawyer Thomas Kjellberg:
The basic question [for the MTA] offered Thomas Kjellberg, an intellectual property attorney with the law firm Cowan, Liebowitz, and Latman, you guys really give a shit?
There are obviously strong fair use arguments here, as well as strong arguments about whether or not anything in Berman's map is actually infringing. While the MTA claims that his map copies a specific style of NYC subway map, the so-called Vignelli map, the currently used version of the Vignelli map from the MTA, was actually created after Berman's map was created:
Yes, there are minor differences between your map and the MTA map, Freundlich wrote in his email. But given your access to the MTA map on the MTA website, and the substantial similarities of your map to the MTA map, the only rational conclusion is that your map is based on the MTA Vignelli map.But there is a potentially critical flaw in that logic. The MTA created The Weekender in 2011, two years after Berman created his map, which he uploaded to Wikipedia in 2009.Even so, Berman thinks his map stands alone on its merits. Even assuming that I had a time machine, he wrote via email, they're not the same thing.
It helps that Berman, himself, is actually a lawyer. He seems to understand that whatever may have been "copied" here certainly wasn't copyrightable.
To prove his case, Berman listed eight differences between his map and Vignelli's. For example, they display lines running along the same route differently. Berman uses different symbols for trains that only stop on nights and weekends. Vignelli uses gentle curves whereas Berman uses hard angles. Berman shows streets and labels neighborhoods. They use different colors and shapes for geographic landmarks. He went on, and added that he could have continued to go on for much longer.In general, the only major similarities are that both are subway maps and both use 45-degree angles in our diagrams, which has been standard transit map practice since 1933, Berman asserted. It's certainly not copyrightable.
The bigger question, still, is why? Why does the MTA care? Yes, it can sell some Subway map posters, but honestly most people probably want to buy the official one -- not some random dude's (even if it is a nice map). The article also notes that there are a ton of other NYC subway maps on Etsy that the MTA didn't go after.The whole thing is so strangely stupid. Even if you could (and you shouldn't) argue that because he was selling prints, that somehow harms the MTA's own merch and licensing business, as Vice points out, that's a negligible source of revenue for the MTA anyway.But there's an even larger point here: as we've discussed many times in the past a government agency doesn't and shouldn't need copyright. It has perfectly practical incentives for creating a map: to get people to use the Subway. That's how it makes its money. It should want more people creating compelling maps that get more people to ride the subway. And, instead of fixing the incredibly broken down Subway system, it wants to waste its time on this nonsense?

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Uber Wins Dubious Honor Of Being First Big Tech Company To Bully A Small Nation Using Corporate Sovereignty

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Six years ago, when Techdirt first started writing about the investor-state dispute system (ISDS) -- or corporate sovereignty as we prefer to call it -- it was largely unknown outside specialist circles. Since then, more people have woken up to the power of this apparently obscure element of international trade and investment deals. It essentially gives a foreign company the ability to threaten to sue a nation for millions -- even billions -- of dollars if the latter brings in new laws or regulations that might adversely affect an investment. The majority of corporate sovereignty cases have been brought by the extractive industries -- mining and oil. That's not least because many of the laws and regulations they object to concern environmental and health issues, which have come to the fore in recent years. New legislation designed to protect local communities might mean lower profits for investors, who then often threaten to use ISDS if they are not offered compensation for this "loss".Big tech companies, for all their real or supposed faults, have not turned to corporate sovereignty as a way of bullying small countries -- until now. En24 News reports that Uber is threatening to invoke corporate sovereignty in a dispute with Colombia. According to Uber:

a series of recent measures by the Republic have had a serious adverse impact on Uber's investments in Colombia and the viability of its operations in the country. On December 20, 2019, for example, through the Superintendence of Industry and Commerce ("SIC"), the Republic ordered Uber, Uber Colombia, and another Uber subsidiary that will virtually cease to make the Uber Platform available of Associated Drivers and passengers in Colombia.
Uber points out:
other companies in Colombia and third countries that offer similar forms in Colombia have not undergone the same treatment and continue to operate in Colombia without similar interference from the Republic.
The company claims a wide range of harms:
The illegal order of the Republic to block the Uber Platform in Colombia also constitutes an act of censorship in contravention of international human rights instruments that protect net neutrality, freedom of expression on the internet and freedom of use of the internet.
At the moment, this is all just saber-rattling, designed to encourage the Colombian government to unblock Uber in the country. If it doesn't, the company says, it will invoke the ISDS Articles (pdf) of the 2012 United States-Colombia Trade Promotion Agreement, and ask a tribunal to award compensation. Even if the current threat to use corporate sovereignty is not followed through, it is surely only a matter of time before another big tech company joins the ISDS club.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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Carve It All Up: Compumark Report Shows Trademark Registrations, Claims Of Infringement Both Rising Fast

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As we've talked about for some time, one of the long-tail effects of the increased use of intellectual property in American culture has been the supercharging effect it's had on fomenting a permission culture in general. This effect is compounding, as permission culture breeds IP protectionism, which breeds permission culture. The overall effect this has is to cause far too many people to believe that everything that exists can be owned and controlled.You can see the effect in action in the uptick of trademark registrations and claims of infringement in a recent survey result from Compumark.

85% of brands experienced trademark infringement in the past year, showing a steady upward trend from 81% in 2018 and 74% in 2017. This is according to the latest research from CompuMark, the industry leader in trademark research and protection, and a Clarivate Analytics company.For those that suffered infringement, consequences were significant, with the top three cited as customer confusion (45%), loss of revenue (38%) and damage to brand reputation (37%). Three quarters of trademark infringements also led to litigation, with 40% of organizations spending between $50,000 – $249,999 on legal proceedings. In addition, 46% of respondents had to rebrand as a result of infringement, an exercise which can be costly for brands.
With these numbers and the plethora of stories we post here about just how many claims of infringement and trademark disputes are protectionist in nature and often unreasonable, this sure seems like an awful lot of wasted time, money, and bandwidth by the court system for whatever benefit trademark law is currently providing. Are there instances out there of true trademark infringement, where actual customer confusion is a thing and business effects are very much felt? Of course there are. But 85% of brands experiencing trademark infringement? If that number is true, it sure seems to suggest we need to recalibrate what we consider infringement more than anything else.Disappointing as well were respondents' apparent views that the solution to all that ails us in trademark issues is technology.
Technology was the most cited (49%) way of improving the trademark research and protection process, with artificial intelligence seen as the method of speeding up search, watch and review, as well as in using predictive analytics and automating tasks.
No. For the love of god, no. Supercharging our permission culture's worst aspects by building digital terminators to carry out our paranoia is not the solution. The solution is a more narrowly applied view of trademark rights with a return to the law's original purpose, which is avoiding public confusion as to the source of a good or service.

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Chrome's Move To Stomp Out Third Party Cookies? Good For Privacy, Good For Google's Ad Business... Or Both?

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We've talked in the past how efforts solely focused on "protecting privacy" without looking at the wider tech ecosystem and the challenges its facing may result in unintended consequences, and now we've got another example. Google has announced that it's beginning a process to phase out support for third-party cookies in Chrome. Looking at this solely through the lens of privacy, many privacy advocates are celebrating this move, saying that it will better protect user privacy. But... if you viewed it from a more competitive standpoint, it also does much to give Google significantly more power over the ad market and could harm many other companies. Former Facebook CSO, Alex Stamos' take is pretty dead on here:

A win for privacy may be a loss for competition -- and nearly every big regulatory effort to "deal with" big internet companies is going to play right into those companies' hands.For years I've been talking about how we need to view privacy as a series of tradeoffs, or any attempt to regulate privacy will go badly. Here, this is even pre-regulation, but just based on the nature of the public narrative that third party cookies must obviously be bad. They can be, but not always. And the end result here is that the "trade off" for protecting more privacy is giving more of the ad market to Google. I'm guessing that most privacy advocates would argue that they don't want to do that. But if you look solely through the lens of 3rd party cookies and no further -- that's what you get.

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Senator Wyden Wants Paid Ad Blocking Whitelists Investigated

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For years, journalists have highlighted how ad blocking companies have slowly but surely been compromising their ethics -- and products -- to make an extra buck. Several years ago you'll recall that numerous ad blocking companies were busted letting some companies' ads through their filters if they were willing to pay extra. Others collect and monetize "anonymized" data that's gleaned from what ads you're receiving and which ones you're blocking (recall that studies repeatedly have shown that anonymized data is not at all anonymous).Enter Oregon Senator Ron Wyden, who, this week, sent a letter to the FTC (pdf, hat tip The Verge) urging some greater scrutiny of the sector:

"Hundreds of millions of consumers around the world have downloaded and installed software tools that purport to block online ads. In turn, the largest ad companies--including Google, Amazon, Microsoft and Verizon Media--have quietly paid millions of dollars to some of the largest ad blocking software companies in order to be able to continue to track and target consumers with ads.
Much like VPN companies who promise security and privacy but then hoover up your personal data, it's an erosion of consumer trust to promise a product that's doing the opposite of what it claims while not being transparent about it. While ad blockers are maligned by many sites, they're a natural evolution of the internet's insistence on pushing its luck with terrible, performance and security-eroding ads. So if they're going to be viewed as essential security and privacy tools, Wyden suggests they should be more up front about behavior like this:
"Eyeo, the German company that makes Adblock Plus, operates and "Acceptable Ads" program in which it whitelists advertisers that agree to prohibit pop-ups and other types of annoying ads. Eyeo requires the largest internet advertising companies to pay 30% of their revenue from ad blocking users to be included in this program. In October of 2015, Eyeo announced that it had opened its acceptable ads program to competing ad blockers, enabling competitors to use Eyeo's whitelist and receive payments from the major ad companies. The same day, AdBlock, another popular ad blocker, revealed that it had been sold to an anonymous buyer and would be joining the Acceptable Ads program. AdBlock then automatically "upgraded" millions of AdBlock users, without their affirmative consent, into tracking and targeting by major ad companies that paid to be included in Eyeo's whitelist."
In short what began as a sector responding ethically to the rise in terrible ads has been co-opted by the ad industry itself via cash and consolidation, without being transparent about its "evolving" relationship with advertisers. Wyden suggests the failures of transparency and notification here are likely illegal under federal law, and the sector should be prompted to, at the very least, make these relationships and product limitations clear to the end user.

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Game Dev Torrents Its Way To More Sales, Not Less

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Piracy is bad, full stop. That's the message repeated far too often by far too many in the content industries. Nothing as complicated as how copyright infringement impacts a content maker could be that simple, of course. Instead, piracy effects different content makers and companies in different ways. And, as we've seen in the past, when rightsholders actually try to connect with pirates and make good use of piracy, they often encounter beneficial results. When this occurs, detractors typically begin claiming all sorts of reasons for why those cases are unique: it only works for big companies that can absorb the sales losses, it only works for small companies that aren't generating much in sales anyway, it only works for some genres of video games and not others, etc.This reasoning is pointless. The fact is that smart use of the internet and piracy have too many success stories at this point to be written off in this way. And those success stories keep slamming into the stonewall shouts that piracy is always bad, such as a recent example where an indie developer put his own game up torrent sites, only to find a significant boost in sales as a result.

Game developer Shota Bobokhidze, aka ‘ShotX,’ falls in the latter category. The indie developer from Tiblisi, Georgia, runs his one-man company ShotX Studio which just released a new shooter game titled ‘Danger Gazers.’The release is available on Steam where it currently sells at $9.99. While that’s not an extremely steep price, ShotX realizes the average game fan may not have the financial means to try out all the new titles that come out every month.This prompted the developer to release a special edition targeting the pirate community.
He put the game up on the Pirate Bay, telling folks that it was a DRM free version of Danger Gazers, no strings attached. It was the full version of the game, and he simply asked anyone that might download and play it to consider paying for it later via a legitimate purchase or a donation. ShotX went on to post a link to the Pirate Bay on Reddit with the same messaging: just buy it if you like it. And this wasn't supposed to be some pre-planned gimmick, either.
ShotX says that this certainly wasn’t a planned PR campaign. He just wanted to get the word out and give the free torrent a chance. That said, he does believe that piracy can have a positive exposure impact, which was also the case here.“It wouldn’t have been effective if it was a planned PR move to get people to buy the product. It was just a kind act that I was lucky enough to get noticed. I’m sure it would have been apparent if it wasn’t so,” he says.ShotX’s approach worked well. The Reddit post promoting the official torrent reached a broad audience. This resulted in a lot of free downloads but also motivated people to buy the game and spread the word.“The response so far was amazing,” ShotX says. While he didn’t expect anything in return, the free release actually resulted in a significant revenue boost.
And isn't boosting revenue the entire point? How can piracy be always bad, full stop, if the end result in some cases is increased revenue for a content creator? That doesn't make any sense.Instead, this is yet another example that highlights how content creators can act human and connect with people out there, even those that might download their games for free. Through that connection, even those downloading the game, evil beings as they are, managed to send more money the developers way. Be human, awesome, and make use of the internet, folks.

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Immunity Just Barely Denied To Cop Who Claimed Driving A Beat-Up Car And Paying For Purchases Is Suspicious Behavior

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An arrest stemming from the most specious "investigation" has resulted in the denial of qualified immunity for one officer. But just barely. The Sixth Circuit Court of Appeals was almost able to talk itself out of denying qualified immunity to any of the four officers involved. The one officer who will now have to face a jury is was the ringleader of the investigatory debacle, but he was far from the only one guilty of rights violations.Three men searching for a store selling space heaters late at night finished their shopping trip surrounded by cops, who arrested one of them -- Christopher Bey -- for having an expired permit for the weapon he was carrying. All three men were black. Every officer involved in the stop and arrest was white. This matters, but not to the majority writing the opinion [PDF].Three of the cops were members of the Livonia PD's Special Operations Unit (SOU). They were on the lookout for "retail crimes" in response to a rash of break-ins at cellphone stores. Sergeant Andrew McKinley -- the only officer who's still facing Bey's lawsuit -- spotted the van driven by the men and decided to start following them.THINGS THAT ARE SUSPICIOUS TO A POLICE OFFICER: Driving in an old vehicle.

When Sergeant McKinley observed Bey’s “beat-up” minivan at the early morning hour, he started to follow it on “a hunch”; according to his training and experience, criminals often use stolen, older vehicles for retail crimes so that police cannot trace the vehicles back to them.
Ah. Of course. People who drive "beat-up" cars are criminals. So are people who drive new cars. Or rentals. People driving cars are criminals because criminals are known to drive from place to place in vehicles, based on training and experience, etc.This store didn't have any space heaters, so the men kept looking. They went to three different stores before they found some. During this trip, their vehicle exited a northbound freeway and immediately re-entered it going south. To the expert eye of Sgt. McKinley, this was a "cleaning maneuver" meant to shake a tail. To anyone else, it would have looked like someone realizing they were heading in the wrong direction and doubling back to get to their destination.Once they got to their final destination -- a Walmart in Canton -- they were followed inside by another plainclothes member of the SOU, Officer Megan McAteer. McAteer saw nothing suspicious, but not for a lack of trying.
McAteer told McKinley that she watched the young men separate, with one of the three going into the hunting section and looking at guns. The three then proceeded to the electronics section, where McAteer saw nothing unusual. Though at one point she might have relayed that she thought the three were contemplating a “pushout,” she never saw the three leave or attempt to leave Walmart without paying for the merchandise in the shopping cart. To the contrary, she relayed to McKinley that Bey and his friends stood in line at the cash register, “flipped[] through some [credit] cards to . . . pick a card,” and paid for the items in their shopping cart using the card.
THINGS THAT ARE SUSPICIOUS TO A POLICE OFFICER: Paying for purchases.
McKinley also argues that “the fact that the [credit card] purchase went through does not rule out fraud,” because “the cashier does not typically compare the account number on the swiped card with the one that shows up on the receipt.” It may be true in the abstract that a seemingly successful credit card transaction does not exclude all possibility of fraud. But even deferring to the officers’ experienced judgments as we must, see Arvizu, 534 U.S. at 273, McKinley’s assertion crosses into baseless speculation in these circumstances. Under the same logic, even a cash payment would not have definitively ruled out theft because the bills might have been counterfeit—so nothing Bey could have done in the store could have prevented the officers from stopping him.
The court won't let McKinley excuse himself from this lawsuit -- not if these are the only justifications he has to offer.
McKinley testified that “[c]riminals frequently use stolen old vehicles that cannot be traced to them if they flee the scene,” and points to his testimony that the paper registration on the van’s window did not appear in a records search. He likewise contends that Bey’s reversal on the interstate was “consistent with a cleaning maneuver.” But even taken together, these meager observations are not enough to constitute reasonable suspicion. The deference we owe to police officers on the ground can only stretch so far, and here McKinley had seen nothing constituting an “objective manifestation” that Bey “[wa]s, or [wa]s about to be, engaged in criminal activity.” Cortez, 449 U.S. at 417. Driving from store to store, even at 2:30 a.m. (when the stores were, after all, open to customers), in a “beat-up” minivan, would not generate reasonable suspicion to stop a suspect when that series of events culminated in a normal credit card purchase.
But the other two members of the Special Operations Unit that participated in the unconstitutional stop are free to go. That does not sit well at all with Judge Eric Clay, who says the majority's decision to let the other involved officers skate only allows officers to engage in even more biased policing.
Bey and his friends are black males. This fact alone elicited the suspicion of three undercover Livonia police officers, all of whom are white. The three officers, driving in three separate unmarked cruisers, followed Bey and his friends for an extended period of time, pursuing them across three local jurisdictions while waiting, and perhaps hoping, for the men to commit a crime. And when the men exited the Canton Walmart with the space heaters they had purchased, a Canton officer—whom the Livonia officers had summoned—stopped Bey and his friends, ordered them out of their car, and accused them of stealing the space heaters. But the police officers’ hopes of discovering criminality had failed to materialize. The only crime Bey and his friends had committed was shopping while black.This case is about race. It is about police officers allegedly targeting, surveilling, and detaining Bey and his friends because of the color of their skin. The majority chooses to minimize this uncomfortable truth. But the majority’s failure to sufficiently acknowledge this reality neither changes, nor obfuscates, what is apparent to anyone who objectively examines the record below: the events that unfolded in the early morning hours of March 16, 2013 would never have transpired had Christopher Bey and his friends been white—or at least a jury could so find.
This is because the Fourth Amendment isn't the only thing implicated by this suspicionless surveillance and stop. There's also the Fourteenth Amendment. The Equal Protection Clause is supposed to protect against racial discrimination. The dissent says a jury could find -- given the complete lack of justification for the stop -- that the men were targeted by the SOU because they were black. Even if McKinley said he didn't know they were black until after they went into the first store, he and his team decided to follow them across three different towns until they could find a reason to stop them and search them.By dismissing this claim against all the officers, the court makes it easier for officers like McKinley and his SOU counterparts to continue targeting minorities without fear of repercussion.
My colleagues’ analysis is not only legally and factually incorrect. It is also dangerous. By excusing Defendants’ alleged racial discrimination, the majority allows unconstitutional race based policing to continue unabated. And by removing the prospect of liability as a deterrent for police officers in all but the rarest of circumstances, the majority invites an increase in discriminatory conduct.
If you smell smoke, it's because this is fire:
I decline to adopt the majority’s skewed view of the facts. I cannot concur in the majority’s untenable legal reasoning. And I refuse to condone unconstitutional race-based policing. I therefore dissent.
No officer would admit to biased policing under oath. But the facts of the case should have prevented every officer but Sgt. McKinley from escaping the lawsuit altogether. And it certainly should have prevented every officer from receiving qualified immunity on the Fourteenth Amendment claim. But this is what the majority has decided: it's almost impossible to hold cops accountable for deciding suspicious activity is almost anything done while black.

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Academic Journals In Russia Retract Over 800 Papers Because Of Plagiarism, Self-Plagiarism And 'Gift Authorship'

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Academic publishing hardly covers itself in glory, as Techdirt has reported over the years. It takes advantage of researchers' belief that they need to publish in so-called "high impact" titles for the sake of their careers, in order to pay nothing for the material they provide. Since articles are reviewed by other academics -- for free -- profit margins are extremely good: around 30-40%. In order to retain these unusually high levels, the industry does everything in its power to undermine and subvert cheaper alternatives like open access, and often takes a heavy-handed approach to the enforcement of "its" copyright -- even against the original author. Given this dismal industry background, it will come as no surprise to learn from Science magazine that Russian academic publishing has its own problems, fueled by the bad behavior of authors:

Academic journals in Russia are retracting more than 800 papers following a probe into unethical publication practices by a commission appointed by the Russian Academy of Sciences (RAS). The moves come in the wake of several other queries suggesting the vast Russian scientific literature is riddled with plagiarism, self-plagiarism, and so-called gift authorship, in which academics become a co-author without having contributed any work.
The article mentions the findings of Antiplagiat, a plagiarism detection company. Antiplagiat looked at over four million academic articles published in the Russian language, and found that more than 70,000 were published at least twice. Some were reused 17 times. That's an impressively efficient re-cycling of material once it has been written, and saves people the bother of writing new papers, while racking up citations that look good on a CV.The practice of what is known as "gift authorship" is arguably even more convenient for lazy academics. It involves selling slots on papers already written by other authors that have been accepted by a journal. No work or connection with the research is required. Instead, a site like 123mi.ru acts as a matchmaker between authors willing to sell slots on their articles, and those willing to pay for them. Prices range from around $500 to $3000 per author slot, depending on the subject matter and the journal -- although the latter is only revealed after the slot has been paid for. Some articles allow up to five authors slots to be bought in this way.Academic publishing in Russia clearly has some serious problems, which undermine its value as a measure of scholarly achievement. Sadly, the same could be said about academic publishing in the West, albeit for different reasons.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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

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Five Years AgoThis week in 2015, the administration made the meaningless gesture of sanctioning North Korea over the Sony hack, while James Clapper was calling it the most serious cyberattack on the US to date, implying there have been no serious ones, and Neil deGrasse Tyson was offering up the incredibly helpful and realistic suggestion that the solution is to simply create unhackable systems. The MPAA was trying to get regulators to force ISPs to block sites "at the border", while still pursuing their campaign to get links to pirated content out of Google — a strategy that is both ineffective and self-defeating. And we saw more bogus DMCA takedowns, of course, both mundane and personal.Ten Years AgoThis week in 2010, there was plenty more copyright panic from companies: Ninentdo shut down a fan-made Zelda movie, Sony was not supporting its own movies for the Oscars out of piracy fears over sending out DVD screeners, music publishers forced another lyrics site offline, and the UFC announced plans to start suing individuals for piracy. And even as many indie filmmakers were realizing that releasing movies for free online has many benefits, one indie record label in Finland was insisting it wouldn't sign any new bands until the government stops piracy. Meanwhile, Bono came out in favor of using China-style internet censorship to fight piracy (even as China's efforts were failing in many ways), garnering confused support from Nirvana bassist Krist Novoselic even as he admitted he didn't really know much about the subject. And we looked at one attempt by an ISP to actually fight back against bogus DMCA notices, which only highlighted how this is almost impossible.Fifteen Years AgoThis week in 2005, there was some debate about the nature of apparent security loopholes in Microsoft's DRM, while Bill Gates was deploying the ol' accusations of "communism" against those who call for copyright reform. Another court told the MPAA it has to actually file lawsuits to get customer information from ISPs, while the BSA was seeking to codify the just-send-a-subpoena option right into the DMCA. After an initial loss, Geico was continuing its trademark crusade against Google, while Toronto's airport was getting into the trademark threat game to stop a silly blog that posts photos of urinals. And we were completely flabbergasted by the shocking results of a critical study, which revealed the oh-so-secret fact that... entertainment industry executives were scared of file sharing.

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Ring Throws A Moist Towelette On Its Dumpster Fire With A Couple Of Minimal Security Tweaks

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Things have gotten worse and worse for Amazon's Ring over the past several months. Once just the pusher of a snitch app that allowed city residents to engage in racial profiling from the comfort of their homes, Ring is now synonymous with poor security practices and questionable "partnerships" with hundreds of law enforcement agencies around the nation.Ring owners recently discovered how easily their cameras could be hijacked by assholes with no moral compass and too much time on their hands. Using credentials harvested from security breaches, online forum members took control of people's cameras to entertain a podcast audience who listened along as hijackers verbally abused Ring owners and their children.Ring is now being sued for selling such an easily-compromised product. Ring's response to the original reports of hijackings was to blame customers for not taking their own security more seriously. Ring does recommend two-factor authentication but that's about all it does. It does not inform users when login attempts are made from unrecognized IP addresses or devices, and does not put the system on lockdown after a certain number of failed attempts are made.Yes, users should use strong passwords (and not reuse passwords), but blaming customers for engaging in behavior most customers will engage in is unproductive. Instead of making two-factor authentication a requirement before deployment, Ring has just repeatedly pointed to its prior statements about its "encouragement" of 2FA -- an "encouragement" that is mostly comprised of defensive statements issued in response to another negative news cycle.Since it can't keep blaming its millions of customers for its own failings, Ring is taking a very, very small step in the direction of actually taking its customers' security seriously. [Please hold your tepid applause until the end of the announcement.]

Ring has announced that it is adding a new privacy dashboard to its mobile apps that will let Ring owners manage their connected devices, third-party services, and whether local police partnered with Ring can make requests to access video from the Ring cameras on the account. The company says that other privacy and security settings will be added to the dashboard in the future. This new Control Center will be available in the iOS and Android versions of the Ring app later this month.
It's barely enough to make any one feel whelmed, much less overly so. There are two small additions that put this ahead of what Ring offered prior to the newsworthy camera hijackings. First, the app will allow users to see who's logged in at any given time and logout unrecognized IP addresses or locations from within the app.The second addition finally puts some (baby) teeth into Ring's 2FA recommendation:
[R]ing is continuing to inform its customers of the importance of two-factor authentication on their accounts and will be making it an “opt-out” thing for new account setups, as opposed to the opt-in setup it currently is.
Swell. So that's kind of… fixed. I guess. Now Ring just needs to work on all the other problematic things about itself, like the fact that it's still not going to notify users when new IP addresses, devices, or locations attempt to access their cameras. And it's not going to stop using cop shops as Ring marketing street teams. And for all of its insistence footage is never handed over to cops without the proper paperwork, it still deals from the bottom of the deck by claiming end users own all their footage even as it's handing this footage to law enforcement without the end user's permission or involvement.Ring has a lot to fix if it's ever going to make its way out of the PR pit it's dug for itself. This is something, but it's just barely something. It's not enough. And it says Ring still isn't serious about protecting its customers -- not from law enforcement and not from malicious idiots who've found a new IoT toy to play with.

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Professor Removed From Teaching For Sharing A Downfall Parody Video

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If you've been on the internet for basically any length of time, you probably know about the Downfall parody videos, sometimes referred to as the "Hitler Finds Out" videos. These are videos that take a clip from a 2004 German movie about the final days of Hitler, and post over them English subtitles of Hitler getting angry over... just about anything. We wrote about it a decade ago, and while the Downfall parodies have become somewhat less common these days, it's still a bit surprising that anyone might be offended by them.But, alas, in a yet another (more real world) example of how content moderation is impossible to do well, a popular senior lecturer of accounting, Catherine West Lowry, at UMass Amherst was removed from her teaching role after a student complained that she showed a Downfall parody about accounting made by a former student to the class (found via Reason.com).To make the class more fun, Lowry had long offered students extra credit for producing entertaining or "fun" videos about concepts in the accounting class, and someone back in 2009 (at the height of the Downfall parody popularity) made this one about accounting concepts and the class:

On November 12th, Lowry showed that video to the class after some students asked her to share a video:
The point was to engage students in an otherwise dry and difficult subject material, Lowry said. Accounting is really a foreign language for so many of these students. The videos, she added, have proved very successful with bonding with students, and instructors at other colleges across the country have used them in their own classes.Lowry occasionally shows past videos in class as a way of introducing a concept to students, but she hadn't planned to do so on November 12. Still, a few students asked her to show a video at the start of class, she said, and the Downfall clip was relevant to the day's lesson. So I did it, and they clapped and loved it. And that was that, Lowry said.
However, at least one students was offended. While none of the articles specifically describe what was seen as offensive about the video, it is implied heavily that someone took offense to the idea of showing Nazis/Hitler in class (not that the video or movie in any way glorify Nazism or Hitler). And rather than recognize that perhaps someone was overreacting, the Dean decided to yank Lowry out of class, which appears to have upset many of her students:
On November 14, Lowry sent an email to her students apologizing for the incident. I want to apologize to any student who was offended by the Hitler xcredit video on Tuesday. My intent was never to offend or upset anyone. I was unaware of what was going on on campus, Lowry wrote, according to a copy of the email provided by a student. While I've received hundreds of wonderful, thoughtful, creative videos over the past 11 years, this issue, along with an earlier issue this semester, has caused the end of these extra-credit videos.I truly am sorry, she continued, and I have never wanted to offend or hurt any of my students. Your success and happiness is most important to me.Massey, the dean, briefly spoke to the class the next time it met. She announced that another Isenberg professor would take over teaching for the rest of the semester, according to three students The Chronicle spoke with. Some students shouted, Bring back Cat, a reference to Lowry's first name. Eventually, several dozen students walked out in protest.
While some are arguing that this is another example of over-sensitive students, it's not clear that's the case at all (given that it appears many of the students were perfectly fine with this, and it was potentially the administration that overreacted). But, more to the point, it once again highlights the "impossibility" of content moderation, even in real life, rather than just on the internet. A key point that we've made about content moderation is that context matters, and everyone has different context, or may not be fully aware of the cultural context around any particular content.That's likely the case here. The offended student(s) perhaps were completely unaware of the Downfall parody meme, and simply reacted to a professors showing a film depiction of Hitler. Without the wider context -- and adding in the other context of a rise in Neo Nazism -- I can see how someone may have overreacted. The real issue, then, is that the administration failed to be the cooler heads that prevailed, and defaulted to removing the professor from teaching. Also, as the Reason piece notes, since UMass is a public school, there are 1st Amendment implications in punishing her over speech.In the end, it really does seem that the University and, in particular, Dean Anne Massey, should have been able to come up with a much more reasonable approach here. Merely notifying Lowry that at least one student was offended, seems like it would have been more than enough to keep things in perspective. Indeed, Lowry has said as much:
I was shocked when this came out. Had a student expressed concern, she said, I would have been mortified. I would have addressed it. I'm not trying to make some statement here.
But, rather than understand that and understand the context, the University and the Dean went to an extreme position instead.

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Data From Smartwatch Help Investigators Solve The Case Of The Stabbing That Never Happened

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Once again, another crime has been solved with the help of smart devices that shows "going dark" is mainly just an FBI product it's having trouble moving in such a sunshine-y market.Third party apps and a surveillance camera allowed investigators to solve one crime (by determining it never happened) and charge someone for the crime that actually happened. [via Slashdot]

A 26-year-old man faked his own stabbing at the West Bloomfield synagogue where he worked and then reported he was attacked because of his Jewish faith, authorities say.Now Sean Samitt is facing a felony charge of filing a false police report, according to West Bloomfield Police.
Samitt claimed to have been attacked while leaving work at the Temple Kol Ami. Supposedly the attackers stabbed him while yelling things about "you Jews" and "too many immigrants." Investigators were unable to find a weapon, blood, or any other evidence of the crime in the parking lot that Samitt claimed the attack took place.What they were able to find was a security camera attached to a house across the street that captured the crime that never happened. When they confronted Samitt with this, his story changed. He hadn't actually been hate crimed. Instead, he claimed he had passed out (due to an unnamed health condition) while doing dishes at the synagogue.He then claimed that this was kind of a hate crime as well, because he had been "harassed" about his medical condition at the synagogue and felt compelled to create a cover story for his inability to do dishes without losing consciousness.Sometimes the best surveillance is the surveillance we inflict upon ourselves.
Officers were able to obtain information from Samitt's cellphone health application that was synced to his Apple Watch, confirming he did not lose consciousness. Samitt then admitted to intentionally stabbing himself.
A wealth of data about people's lives is generated daily by anyone carrying a smartphone or wearing a smartwatch. Device encryption is only preventing investigators from seeing a very small slice of that. Almost every third party app generates records law enforcement can obtain from developers or in the multiple clouds storing data and communications. The few communication options that are completely locked down may impede a handful of investigations. But for the most part, law enforcement is coming out ahead in the so-called tech war, years after device encryption became a standard offering.

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Appeals Court Makes The Right Call Regarding Non-Commercial Creative Commons Licenses

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We've pointed out for years that there's always been some level of confusion about the boundaries of the "non-commercial" tag on a Creative Commons license. There are lots of things that are kind of fuzzy about it. Does it mean you just can't sell the work? Or does it mean you can't even use it on a website if that website has ads on it? Indeed, we've worried that the non-commercial license created a bit of a branding problem for Creative Commons. However, to the organization's credit, it has spent plenty of time and effort over the past decade or so to try to clarify some of the confusion about non-commercial licensing, saying that it really just refers to the direct sale of such works.For the past few years, that's also meant that Creative Commons, the organization, has had to step in to an ongoing lawsuit over such a license, and inform the court what a non-commercial license actually means.The issue, in the case, was that an educational non-profit, Great Minds, sued various copy shops for making copies of its educational materials, even though they were licensed under Creative Commons BY-NC-SA 4.0 license. That license says the work can be copied, but only under non-commercial terms. Great Minds argued that because the copy shops, like FedEx and Office Depot, made money from the copies, that made it commercial. Creative Commons kept telling the court that this was a misreading of "non-commercial" and in the Office Depot case, the 9th Circuit has agreed.It's a nice, quick, and simple ruling:

There is no dispute that the school and school districtlicensees' copying of Great Minds' material is permittedunder the License. There also seems to be no dispute that ifOffice Depot were itself a licensee, commercial copying ofGreat Minds' material would fall outside the scope of theLicense and infringe Great Minds' copyright. The issue weconsider then is whether the school and school districtlicensees' exercise of their rights under the License throughthe services provided by Office Depot results in Office Depotbecoming a licensee. We hold that it does not. A licensee'shiring of a third-party copy service to reproduce licensedmaterial strictly for the licensee's own permitted use does notturn that third party into a licensee that is bound to theLicense terms.
Citing the ruling in the 2nd Circuit in the basically identical case that Great Minds brought against FedEx:
Great Minds'licensees may rely on non-employee agents in carrying outpermitted uses without converting those agents intoindependent licensees.
The court also notes (again, echoing the 2nd Circuit's ruling) that Great Minds' contention that Office Depot's "volitional" conduct changes matters, is "absurd":
Great Minds also contends that the volitional element,i.e., which entity's employee does the copying, isdeterminative in this case. But that argument produces thefollowing absurd results: (1) a teacher may copy Eureka Mathon an Office Depot-owned copy machine for a fee in-store,but cannot hand the materials to an Office Depot employee tobe copied; (2) a school may pay a copy machine provider amonthly fee to keep a machine on site to copy Eureka Math,but cannot pay Office Depot employees to make the samecopies; and (3) a school may permit teachers to copy EurekaMath on school-owned or leased machines, but cannot pay ahigh school student to make the same copies.Great Minds' interpretation cannot be correct.
So now we have rulings in both the 2nd and the 9th Circuit saying basically the same thing. That's useful, as those are the two biggest circuits for copyright law, generally. This is, at the very least, good news. Putting an NC license on Creative Commons works does not prevent all commercial activity, so long as that activity is within the reasonable ambit of the license.

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Connecticut Cop Sues Local Blogger To Get Him To Turn Over Personal Info On Commenters Who Said Thing The Cop Didn't Like

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A Connecticut cop, who doesn't like the things commenters said about him on a local blog, has decided he's legally in the right to demand the identifying info of those commenters from the person who runs the blog.

Hartford police Lt. Vincent Benvenuto has filed a lawsuit in state court against Kevin Brookman, a Hartford resident who runs the popular We The People Hartford blog, seeking the identities of people who post comments.The lawsuit does not seek money damages, but does seek to know who is posting anonymously on Brookman’s blog, said Benvenuto’s lawyer, Patrick Tomasiewicz.“It’s a pre-suit discovery petition to try to determine what the source is or who the sources are of disparaging and defamatory comments made against Lt. Benvenuto," Tomasiewicz said.
The "Bill of Discovery" [PDF] lists a lot of things that sound like protected speech, rather than defamation. There's a long list of comments Lt. Benvenuto takes offense at, but a lot of commenters (who Benvenuto insists are actually other cops) making opinionated statements isn't the best foundation for a libel lawsuit.
a. An August 5, 2019 thread disparaging the Plaintiff in a discussion regarding an ongoing HPD investigation;b. An August 28,2019 thread accusing the Plaintiff of sleeping during his shift and appearing to accuse the same of impropriety regarding the use of his official vehicle;c. An August 29, 2019 comment accusing the Plaintiff of inappropriately leaking police information;d. An October 2, 2019 thread attacking the Plaintiffs ability to lead other officers, accusing the Plaintiff of making racist comments towards another officer, and accusing the Plaintiff of ignoring the racist comments made by subordinate officers;e. An October 2, 2019 comment making unsubstantiated comments regarding the Plaintiff s job performance while working with the NYPD, and alleging that "[the Plaintiff] was racist so they kept him out of queens [sic] and Bronx;"f. An October 18, 2019 comment stating, "All HPD Officers have been ordered not to read your blog by members of the Command Staff, Chief Thody included;"g. An October 21, 2019 comment alleging that the Plaintiff has threatened to cut the Defendant's throat, and characterizing the Plaintiff as "a complete disgrace to the badge;"h. An October 21, 2019 comment where an anonymous user of the Blog posted using the name "Lt. Vincent Benvenuto" in which the anonymous user impersonated the Plaintiff and stated that his promotion to Lieutenant was not based on merit.
So, the usual internet stuff. Some of this could possibly be actionable, but it seems unlikely much of what's listed here will withstand judicial scrutiny if it ever gets that far.What's even weirder is Lt. Benvenuto spends most of the run time of the Bill of Discovery alleging that the comments violate the Hartford PD's code of conduct. I'm not even sure why he would bring that up. If these commenters are other cops and they are violating PD rules, then it's up to the department to punish them, not a local court. I'm pretty sure no PD official advised the lieutenant to file a civil suit because he thought some cops might be violating the house rules.Even if one was inclined to think this potential suit has merit, the Bill of Discovery targets someone for comments other people made. State and federal protections are going to make it very difficult (and rightfully so) for Benvenuto to move forward with his discovery request.First, state protections for journalists likely cover Kevin Brookman and his long-running blog. He cannot be forced to divulge personal information on commenters or sources unless Lt. Benvenuto can prove the information cannot be obtained from any other source and that there's an overriding public interest in the disclosure. Simply wanting it so he can get to suing commenters isn't enough to meet that bar. The state law doesn't say it specifically covers bloggers, but Goodman's blog has been active since 2008, covering matters of interest to the public like local politics and -- obviously -- local law enforcement.Section 230 also protects Brookman against litigation. While it's true Benvenuto isn't suing Brookman over the comments he feels are defamatory, he's forcing him to respond in court to a baseless demand for user info. If Benvenuto wants to sue a bunch of Does, he can do that and make his discovery attempt at the appropriate time. Dragging a blog into this prior to commencing a lawsuit gets everything backwards by demanding the host of third-party content hand over identifying info before it's even been determined his case has enough validity to move past an initial reading by a judge.Lt. Benvenuto pre-lawsuit tactics aren't going to endear him to the general public, much less the commenters at the "We the People" blog. You can't sue your way into respectability, especially when you take a route that drives right through the First Amendment as if it isn't even there.

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Illinois Comptroller Is Opting The State Out Of Collecting Red Light Camera Fees

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We've discussed red light cameras many times in the past, most often to point out how they really aren't great at providing any benefit in vehicle safety, but are quite good at filling up the coffers of local governments on the backs of motorists. Given that these are essentially profit centers run by governments that aren't well suited to maximizing profits, the contracts for these red light cameras are typically outsourced to private interests. And if that seems like a recipe for rampant corruption... well... yeah. Everyone from judges to my beloved home city of Chicago has found themselves being investigated, and sometimes charged, with wild corruption as part of these red light camera contracts. Contracts that, again, don't make anyone any safer.It's bad enough that the Illinois State Comptroller has decided to opt out of its duties to collect on red light camera fees entirely.

Since 2012, the Illinois Comptroller’s office has served as a sort of collection agency for communities that are trying to get motorists to pay their red-light tickets. The comptroller’s tool: Deducting the amount owed in outstanding tickets from state-income tax refunds due to the violators — with about $11 million collected this way on behalf of 60 Chicago suburbs in 2019 alone — and forwarding most of the take to the towns while keeping a small cut.But with federal investigators looking into red-light contractor SafeSpeed over allegations of pay-to-play — amid revelations about politically connected sales representatives for the company landing juicy commissions — Illinois Comptroller Susana Mendoza said her agency will no longer perform this function.
To be honest, it's more than a little sad that it takes clownish corruption to get the wheels of state government to stop bilking its own citizens with red light cameras, but at least it's happening. Mendoza wasn't done, however. She has also publicly stated that red light cameras are very much about revenue rather than safety, and went on to recommend to all of the Chicago suburbs that they all simply cease their red light camera programs.
“They should revisit their programs entirely,” Mendoza said. “I don’t think it’s good public policy and I think it’s time it ends.”
Yes, they should. We've been calling for this for years. Having traffic safety procedures that don't have anything to do with safety and are instead cynical methods for putting money in public coffers seems like the kind of thing we shouldn't do.

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Nintendo Responds To RomUniverse's Lame Argument That First Sale Doctrine Makes The Site Non-Infringing

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You will recall that Nintendo, as part of its sweeping new war on ROM sites initiated a year or so ago, went particularly hard at RomUniverse and its site operator, Matthew Storman. Differentiating RomUniverse from other ROM sites is some combination of the fact that it's run out of California as opposed to overseas, that the site is also a place to go get lots of other media that sure looks to be infringing on copyright, and Storman's verbose attitude in making public comments that don't paint him or his site in the best light. At the onset, as part of an attempt to crowdfund its legal battle with Nintendo, RomUniverse trotted out the claim that it was offering ROMs in an attempt to preserve video gaming history. It wasn't a particularly believable argument given the rest of the site's behavior and RomUniverse quickly opted for other legal arguments in court.Storman appears to be defending himself in the matter and attempted to have the case dismissed on two grounds. The first is that Safe Harbor protections extend to RomUniverse, which Storman claims is simply a service provider and not participating or reaping commercial benefit from infringing material. Storman claims that Nintendo has acknowledged RomUniverse as a service provider by sending DMCA takedown requests to the admin for the site, at least some of which have been complied with. That, unfortunately, is not really how any of this works, as Nintendo details in its own response to Storman's motion.

In 2009, Mr. Storman emailed members of his website that he would be adding new content including ROMs for various Nintendo game systems. In 2018, when Nintendo was successfully enforcing its intellectual property rights against other pirates, Mr. Storman bragged that he would continue to offer copies of Nintendo’s games.Mr. Storman directly profits from this infringing activity by allowing users to sign up for “Premium Memberships.” While non-members are limited to one free download through the website, premium members pay $30 per year to Mr. Storman to download an unlimited number of pirated games, and at higher speeds than non-members.
That seems to be evidence of Storman and the site participating in the infringing activity and somewhat directly profiting from it. Whatever the DMCA safe harbors protect, that ain't it. Nintendo goes on to argue that this sort of affirmative defense is not one to be made in preliminary motions, either, making one wonder if it isn't time for Storman to get himself some actual professional legal counsel.Storman's latter claim doesn't assuage that concern. In his petition for a dismissal, Storman claims that Nintendo actually has no standing to make the infringement claim, arguing that the uploads of the game content to the site were done by those that had legally purchased copies of these games. As such, Storman claims that First Sale Doctrine makes that game code the property of the purchaser of the game, who can resell it at will without it being infringing. As Nintendo again claims in its response, nah, dawg.
The first sale doctrine does not permit mass distribution of copyrighted works, copying of the copyrighted works or distribution of those copies, or the creation and sale of derivative works based on Nintendo’s copyrighted video games. See 17 U.S.C. § 109(a) (“the owner of a particular copy [of a copyrighted work]. . . lawfully made . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.”) (emphasis added). Indeed, Mr. Storman’s actions fall well outside of the first sale doctrine. The first sale doctrine only allows an owner of a lawful copy of the copyrighted work to dispose of that individual copy.
We have argued in the past that Nintendo, and other gaming companies, should really find better routes for mitigating or even making good use of the effects of piracy...but none of that makes the company's rebuttal to Storman's claims any less valid and correct. These are claims made at the improper time, that don't seem to comport with the site's behavior, and that represent a misreading of the law. That isn't going to be good for Storman's legal outcome prospects.Again, to reiterate from our last post on this matter, it's time for Storman to go into damage control mode. And for the love of god, get some professional legal assistance.

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Florida Appeals Court Asks State's Top Court To Decide Whether Compelled Password Production Violates The Fifth Amendment

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The Florida state Supreme Court is being asked to settle the open question as to whether compelled password production violates the Fifth Amendment. (via FourthAmendment.com)Last October, a state Appeals Court decided that it did. In a case involving an accident caused by a drunk driver, law enforcement sought to compel the suspect to unlock his phone so they could search it for evidence. It's unclear what evidence of drunk driving the police hoped to find on the phone, but that's the case that first made its way to one of the state's appellate courts.It all worked out, though. The court ruled that compelling a password is a Fifth Amendment issue because it could force the suspect to hand over evidence to be used against him by prosecutors. Another state appellate court came to the same conclusion earlier this year, ruling that compelling password production to unlock a robbery suspect's encrypted device violated the Constitution.In both cases, prosecutors didn't really care about the password. That's not what they were after. They wanted what was on the phones, which could be evidence.It's a big "could," though. The state didn't bring much with it but conclusory arguments which are very much not the same thing as establishing the needed "foregone conclusion." Without it, the state is seeking to violate the Fifth Amendment, and for the lousiest of reasons.

Below and on appeal, the state’s argument has incorrectly focused on the passcode as the target of the foregone conclusion exception rather than the data shielded by the passcode, arguing that “because the State has established the existence of the passcode and iTunes password, evidence on the Petitioner’s cell phone, and that he can access the content of his phone,” the compelled search was acceptable. Similarly, the trial court specifically held that the “existence, custody, and authenticity of the passcodes are a foregone conclusion” in the order appealed. This holding, which focuses on the passcodes rather than the data behind the wall, misses the mark.[...]Without reasonable particularity as to the documents sought behind the passcode wall, the facts of this case “plainly fall outside” of the foregone conclusion exception and amount to a mere fishing expedition.
The Appeals Court that reached this same conclusion in the second case has now certified the question for the state Supreme Court to examine. The short cert petition says it's up to Supreme Court to set the precedent for the state and resolve the supposed conflicts with prior case law the state argues have been raised by the Appeals Court's decision.There's a dissent attached to the cert petition [PDF] that, weirdly, argues the state's top court shouldn't take a look at this because the Appeals Court screwed it up the first time. The majority of judges, however, disagrees with the dissent's rationale. [Emphasis in the original.]
Despite the narrow focus of the State’s motion, our dissenting colleague presents many pages of arguments—old and new—that amount to a second opinion on the merits. Tellingly, our colleague’s almost exclusive focus is on the Fourth Amendment and probable cause despite no party mentioning either of them in their merits briefs and the State advancing no argument on such matters in its motion for rehearing and certification. And whether the probable cause affidavit (which sought to seize broad categories of information from the cellphone—without identifying any specific item—on the basis that criminals use cellphones) was proper or a fishing expedition matters not; we fail to see how the issuance of a subpoena or warrant—whether careful drawn or a fishing expedition—negates the Fifth Amendment’s protections, which are the focus of this case.
The majority says the dissent's argument is important, but not quite for the reason the dissent thinks it is.
If anything, the relationship that exists between the Fifth Amendment right against compelled personal disclosures and its neighboring and complementary Fourth Amendment right against unreasonable searches and seizures counsels in favor of protection against governmental overreach into individual autonomy in criminal cases.
The dissent's argument is basically this: it's not a "fishing expedition" if cops have a warrant. That's not how fishing expeditions work and the court should know better. The dissent presents an appeal to its own authority (the judicial system at large), which is about the most worthless argument it could make.
The State did not merely issue a subpoena for Pollard’s phone with a hunch that it might provide incriminating information. Rather, the State introduced evidence showing, to a magistrate’s satisfaction, that probable cause existed that Pollard’s phone contained evidence of a crime. This evidence was what they sought, not the passcode that is the subject of this petition.
Ah, the old "magistrates always read warrant applications thoroughly" argument. In this case, there's a bit more to it: an admission by a co-defendant that the crime was planned via text message. At least that's something. The case this Appeals Court cited to come to its conclusion dealt with drunk driving -- a crime that doesn't seem to have anything to do with a phone's contents.The state's Supreme Court will have the final say. For now, Florida is (mostly) covered by decisions that say compelling passwords is a Fifth Amendment violation. Whatever the state's top court decides will be appealed by the losing party, moving it to the federal level. And everything sitting unresolved at the federal level eventually moves to the top court in the land. So, at some point, we'll probably have a nationwide ruling on compelled password production, for better or worse. For now, the Fifth Amendment protections have an asterisk attached. Successful invocation may only apply locally.

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Chinese Skiers Training In Norway Ask Local Library To Remove 'Controversial' Books

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The increasing economic, political, and military power of China is evident. Less obvious is how China and its citizens are starting to impose their views and rules on other nations in more subtle ways. For example, in February last year, Techdirt wrote about how China is actively censoring books written by Australian authors for Australian readers. The Norway Today site reports on the latest attempt by Chinese citizens to censor material in other countries. It involves a delegation of more than 40 Chinese cross-country skiers, along with 15 coaches and managers, who are in the Norwegian municipality of Meråker to train for the Beijing 2022 Winter Olympics:

in recent weeks there have been three incidents concerning Chinese literature at the library in Meråker. Among the books the delegation wanted removed is one about the Falun Gong movement that has been banned in China since 1999.
The reason for the Chinese attempt to censor a Norwegian local library is interesting:
"They have said that if any of the Chinese skiers are caught with these books, they are afraid that they would risk being sent to labor camp or prison in China," [library manager Anne] Marken told the newspaper.
To Marken's credit, the library has refused categorically to remove any books: "We have freedom of speech in Norway so that was completely out of the question." It's only a small incident, easily overlooked. But if it can happen in a tiny local library in the depths of Norway, just because a few Chinese skiers were training there, it is highly likely to start happening in other places, where more Chinese citizens are present, and where China has greater economic and political influence.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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Getting Better, Finally: Intuit's Shady Actions For Free File Program Lead To Change In IRS Deal

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Going through the history of our posts on Intuit and TurboTax will give you an incredibly frustrating recent history of Intuit's bullshit actions regarding its free tax filing program for low-income households. This all stems from a deal the IRS cut with several major tax preparation companies, which amounted essentially to the IRS promising not to offer its own free file program so long as these companies, Intuit being the largest, provided free tax filing programs to the public themselves. The outcome of this naive deal cut by the IRS was to have companies like Intuit do everything possible to hide its free file sites from the public internet by delisting it from searches, then lying to customers to avoid refunding money when they complained that they could have filed for free, and finally Intuit similarly fooling veterans into paying for services that would otherwise be free all while wrapping itself in the American flag.ProPublica did a bevy of fantastic reporting on all of this, leading to a fair amount of public outrage at how blatantly cynical Intuit behaved. It would be easy to be equally cynical in thinking that the IRS would simply sit and watch all this without taking any action. Perhaps to the surprise of many, however, it appears that the shining of the light on Intuit's actions has led the IRS to significantly change the deal it struck with tax prep companies in a way that should be very, very positive for the public.

The IRS announced significant changes Monday to its deal with the tax prep software industry. Now companies are barred from hiding their free products from search engines such as Google, and a years-old prohibition on the IRS creating its own online filing system has been scrapped. The addendum also expressly bars the companies from “engaging in any practice” that would exclude their Free File offerings “from an organic internet search.” ProPublica reported in April that Intuit and H&R Block had added code to their Free File pages that hid them from Google and other search engines, diverting many users to the companies’ paid products.“The improved process will make Free File stronger and give taxpayers another reason to consider this valuable software option,” IRS Commissioner Chuck Rettig said in a statement. The agency hopes the changes will make the free option more accessible for taxpayers in the 2020 filing season, he said.
It may seem a bit much to expect the IRS to flip the script and offer its own fleshed out free to file program to compete with private companies in the span of a year or so. Still, reading the quote above, it sure sounds like that's the IRS' plan. It's something that absolutely should happen, as for most lower and middle income taxpayers, the IRS already has everything it needs to prepare simple tax returns. There is zero reason why anyone not filing a complicated return should pay any amount of dollars to Intuit instead of just verifying the information that the IRS needs to process a return.It should be noted that the prohibition on the IRS offering its own free file program was the result of intense lobbying by the likes of Intuit. That makes it all the more funny to see how the company is pretending to react publicly to these changes.
In a blog post on the Intuit website, the company said, “Intuit strongly supports these changes to the Free File program and associated Free File offerings because they increase the focus on the taxpayer experience.”
That would be hilarious if it weren't so infuriating. Intuit and its peers had every damned opportunity to make the taxpayer experience the focus of its own efforts. Instead, these companies took every measure to hide its free file programs and websites and to trick the taxpayer into paying for a service that was supposed to be free.That is, if nothing else, certainly some kind of customer experience.

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This Week In Techdirt History: December 29th - January 4th

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Five Years AgoThis week in 2014/15, we reveled in the tradition of governments dropping news on Christmas Eve in the hopes that nobody will pay attention to it — employed by the NSA in releasing details on its illegal surveillance of Americans and by the French government to enact a controversial surveillance law of its own. Sony was caught infringing in copyright in a stark example of how broken the system is, while we used the notion of a movie about the big Sony hack to explore the unnecessary licensing of news stories. Comcast and Time Warner Cable were doing their darnedest to convince people their merger would be just fine, even though they were in fact the least-liked companies in any industry. And we took another look at how copyright makes culture disappear.Ten Years AgoThis week in 2009/10, Amazon announced that Kindle ebooks outsold physical books for Christmas, but we noted that "sold" isn't exactly the right word for DRM-laden licensed rentals, which change the equation on the value of a Kindle and were already forcing customers to stick with bad products — and the distinction was also becoming important in the music world with questions about licenses stopping at the border. We also looked at how automakers were abusing anti-circumvention laws to force people to pay more for car repairs, and how the UK's Digital Economy Bill was projected to cost more than the highest estimates on the cost of piracy. Zynga was making copyright threats over a script for auto-playing Mafia Wars, and the Viacom/YouTube fight was hit with the embarrassing revelation that Viacom uploaded many of the videos it was suing over.Fifteen Years AgoThis week in 2004/05, the popular technopanic was blaming wireless technology for everything under the sun — though at least one study was putting to bed the idea that it would interfere with pacemakers. Among the biggest sources of tech excitement was "nanotechnology", which we were beginning to realize was often just a rebranding of existing fields. Meanwhile, Wired took a detailed look at just how big and organized the file-sharing community was, while one anti-piracy group was caught hiding spyware and adware in Windows Media files.

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Techdirt 2019: The Stats.

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Every year, a few days after New Year's Day, we post some stats about traffic and comments from the previous year (we do it a few days after New Year's to make sure that we actually have complete data for the year -- and also, because it takes a bit of time to go through all the data, and other work needs to be done as well). For reference, you can see our previous such posts: 2018, 2017, 2016, 2015, 2014, 2013, 2010. We still use Google Analytics for traffic data, mainly because it's the easiest to use, even though it is increasingly not the most accurate, in part because many of our readers (*cough* including me) will often block Google Analytics from recording our traffic. As we've discussed in the past, most "traffic" numbers are complete garbage, a fact that most people like to ignore because it benefits themselves. However, here we are only using the traffic stats for comparative or relative purposes, rather than absolute purposes -- which seems much more reasonable (i.e., we'll note which stories got the most traffic, but not detail how much traffic, since we're positive that number is inaccurate or misleading).Once again, let's start with where people are coming from. The top of this list is basically always almost exactly identical. The vast majority of our traffic is from the US, with 67% (it's always between 67% and 70%). Number two, as always, is the UK, though this year it jumped up to 6.65% from 5.5%, and Canada remains third at 4.41%. India had jumped to 4th place (from 5th) last year, and it remains in 4th place again with 2.8% of our traffic. Australia is still in 5th with 2.2%. The next five are still the same: Finland, Germany, France, Netherlands, and Sweden, though Finland jumped over Germany to go from 7th to 6th. We noted that last year was Finland's first in the top 10, and this year it bumped up another spot. Not sure why we're moderately big in Finland, but it's cool by me.At a continental level, the Americas represent 74% of our traffic (98.5% of that is North America), Europe 17%, Asia 7%, Oceania is 3% and Africa is 1%. Interesting to think about as we consider whether we can even continue to serve European traffic following the various anti-internet laws they've been passing over there. Overall, Google says we had visitors from 237 countries last year, down one from 238 last year, but up one from 236 the year before. Among countries that have become much more censorial, we notice our traffic has dropped precipitously. We used to get a fair amount of traffic from Russia but it's now barely a blip. We get more traffic from Austria and Denmark than Russia nowadays. We get about the equivalent amount of traffic from China as we get from Russia (i.e., not very much). In Asia, most of our traffic comes from India and the Philippines (with some Singapore, South Korea, Japan, and Pakistan as well). Turkey? We get basically the same amount of traffic as we get from Russia and China. It's almost uncanny that we get nearly the identical traffic amounts from each of those countries.Sometimes it's fun to explore the bottom of the list, which tends to be dominated by single visits from random islands in the South Pacific and various countries in Africa -- but not sure it actually tells us very much useful. It's interesting to see a growing number of visits from Cuba, a country whose internet access still remains very, very limited. We're back down to no visits from North Korea, after it sent us 2 visits the previous year.In terms of technology, it's worth noting that Chrome, while still dominant, has dropped in the level of dominance. Last year it represented 49% of all visits to the site (same as the previous year), but this year it's dropped to 45.8%, with Safari jumping up to 21.5% from 17%. Firefox has dropped from 10% to 6%, which makes me sad as a Firefox user. In news that I'm sure is frustrating to Microsoft (and surprising to everyone), we still get 4% of traffic from Internet Explorer and less than 2% from Microsoft Edge. Most of the other browser traffic is various mobile browsers, so we'll breakdown operating system traffic next. 32% of our traffic comes from Windows-based computers, 28% from Android devices and 27% from iOS devices. Only 10% comes from Macintosh computers, which surprises me. 3% of our traffic is from Linux-based machines. Slightly less than 1% comes from Chrome OS. Oh, and 0.03% from Blackberry, 0.02% from "Windows Phone" and 0.01% from Playstation 4. Wow.In terms of service providers, it's a little difficult to tell, because Google Analytics records the same ISP in many different ways (i.e., there's "Comcast Cable Communications LLC" which is listed separately from "Comcast" and "Comcast IP Services" and "Comcast Cable Communications Inc."). I'm sure there's a reason for all those different names, and I'm also assuming it's due to some lame rent seeking activity. So, my rough estimates are that about 10% of our traffic is carried by Comcast, around 7% by Charter, 6% by AT&T and Verizon each, and then lots of other smaller players.Mobile traffic continues to grow by leaps and bounds. We finally (finally, finally, finally) made our site responsive to make mobile browsing better, and so our mobile traffic numbers shot up. Last year it was 39% of our traffic. This year it was 55% of traffic (wow!). Looking purely at mobile traffic, the fight between Android and iOS remains pretty close. 50% of mobile visits are Android and 49% are iOS. The iPhone obviously was the most dominant device, followed by the iPad. When you get into Android devices, we see variations on Samsung phones leading the pack, with the S8, S9, S9+, Galaxy Note 8 and Galaxy Note 9 all making the leader boards. The only two devices that weren't from Apple or Samsung were the Google Pixel 2 XL and the Xiaomi Redmi Note 5A. Going further down the list, we see more variations on the Google Pixels and Samsung devices. Eventually, pretty far down the list we start to see some Motorolas and some OnePluses. Much further down the list there are some LG devices. An Amazon Fire (?!?) and even a fair number of visits from an Essential Phone (?!?!?!?).For the last few years we've highlighted the following chart of where our traffic comes from:

As we say every year, unlike nearly every other site out there, we do not focus on gaming social media for traffic, and truly wish to get as much "direct" traffic as possible, because that's how you build loyalty. So it makes me happy to see direct traffic remains our biggest source at over 40% and social is just around 12.5%. This may be naive. Basically every other site seems to focus on getting as much social traffic as possible, and it is, certainly a channel for generating traffic. But it's also fickle and leaves you completely at the whim of whatever recommendation algorithm those companies have designed and I'd rather focus on creating good content than worrying about some third party algorithm I have no control over (same goes for search traffic, for what it's worth).Within social traffic, we get the most from Twitter, followed by Reddit, Facebook, HackerNews, Quora and then YouTube. Google obviously drives most of the search traffic followed by Bing and then DuckDuckGo (which is pretty close behind Bing). As always, many of the top search terms are clearly people using search as a navigation tool, as they just are variations on "techdirt" or "tech dirt." Some of the other top search terms that took people to Techdirt are surprising. There's "baby shark" coming in at the top, and also "UCF professor Richard Quinn." Not sure why people are searching on him, but the top result is our 2010 story on him, and his accusations against his students for cheating (and how he dealt with them). I don't know if he did something new this year that made a bunch of people search for him. Some other top search terms are perhaps less surprising: there are searches for copyright troll "Higbee & Associates" (many of which seem to be from people who received demand letters from Higbee) as well as Backpage and everyone's favorite SLAPP suit filing coal boss, Bob Murray.And now it's time for the lists:Top Ten Stories, by unique pageviews, on Techdirt for 2019:
  1. Colorado Town Offers 1 Gbps For $60 After Years Of Battling Comcast
  2. AT&T Execs Think It's Really Funny They Misled Consumers About 5G Availability
  3. The FTC's Settlement With Equifax Is Such A Joke, The FTC Is Now Begging You Not To Ask For A Cash Settlement
  4. Former Hotel Exec Gets Elected To Congress, Decides First Order Of Business Is To Destroy Airbnb
  5. ACLU Asks CBP Why It's Threatening US Citizens With Arrest For Refusing Invasive Device Searches
  6. Voting Machine Makers Claim The Names Of The Entities That Own Them Are Trade Secrets
  7. Ironically, Too Many Video Streaming Choices May Drive Users Back To Piracy
  8. Verizon's New 'Unlimited' Data Plans Still Have Very Real, Problematic Limits
  9. AT&T Loses Another 1.36 Million Pay TV Subscribers Thanks To Relentless Price Hikes
  10. How My High School Destroyed An Immigrant Kid's Life Because He Drew The School's Mascot
Once again, a pretty good mix of stories. I'm particularly happy to see that last story make the list, because I'm still angry about what my own high school did the previous year in destroying a kid's life. I'm not entirely sure how this came about but the 11th story on the list was actually a story from 2010 about professor who thinks students should be able to reuse their own papers for other classes. Number 12 on the list, for what it's worth, was about copyright troll Richard Liebowitz.2019's Top Ten Stories, by comment volume:
  1. Content Moderation At Scale Remains Impossible: Vaccines Edition 1635 Comments
  2. The Ellen Show Issues Copyright Takedown On Transformative Video Commenting On Her Friendship With President Bush/a> 376 Comments
  3. EU Puts An End To The Open Internet: Link Taxes And Filters Approved By Just 5 Votes 358 Comments
  4. Strike 3 Gets Another Judge To Remind It That IP Addresses Aren't Infringers 341 Comments
  5. Cop Peforming A Welfare Check Kills Woman By Shooting Her Through Her Own Backyard Window 320 Comments
  6. Gavin McInnes Files Laughably Silly Defamation Lawsuit Against Southern Poverty Law Center 308 Comments
  7. US Newspapers Now Salivating Over Bringing A Google Snippet Tax Stateside 303 Comments
  8. Our Legal Dispute With Shiva Ayyadurai Is Now Over 297 Comments
  9. LAPD Infiltrated An Anti-Fascist Protest Group Because The First Amendment Is Apparently Just A Suggestion 286 Comments
  10. Article 13 Was Purposefully Designed To Be Awful For The Internet; EU Moves Forward With It Anyway 282 Comments
Yet again, it appears that there is no overlap between the most commented stories and the most trafficked stories. Pretty much since the beginning of this list, we've highlighted this point, but many people still think that comments and traffic are equivalent. Anyway, you, uh, might notice that the top of the list here is a bit more than well, any of the other stories. That thread is fairly epic, but by "epic" I mean full of utter nonsense from at least one, and possibly more very, very stubborn, but very, very ignorant people concerning the topic at hand. That thread has also continued pretty much non-stop since that post went up, including more comments in the past few days. I would recommend not adding to it, but I imagine this post may unfortunately give that thread another boost.And, with that, let's do the individual community leader boards.2019 Top Commenters, by comment volume:
  1. Stephen T. Stone: 3988 comments
  2. PaulT: 3082 comments
  3. That One Guy: 2536 comments
  4. Scary Devil Monastery: 1658 comments
  5. Thad: 1597 comments
  6. Gary: 1596 comments
  7. Toom1275: 1332 comments
  8. bhull242: 1176 comments
  9. Wendy Cockcroft: 1044 comments
  10. ECA: 999 comments
A fair bit of new names on the list this year and a lot more comments. For example, 10th place on this year's list would have been 6th place on last years. Also, PaulT's reign at the top didn't last long. After years of being near the top of the list, and after years of That One Guy being at the top of the list, both were pushed down a notch by Stephen T. Stone who came in just short of 4,000 comments. Damn. PaulT and That One Guy both actually significantly increased their comments from last year, but Stephen could not be stopped. New entrants to this year's list include Scary Devil Monastery, Gary, bhull242 and Wendy Cockcroft -- all of whom have been avid commenters.Top 10 Most Insightful Commenters, based on how many times they got the light bulb icon: Parentheses shows what percentage of their comments got the lightbulb
  1. Stephen T. Stone: 1047 comments (26%)
  2. That One Guy: 668 comments (26%)
  3. PaulT: 529 comments (17%)
  4. Thad: 304 comments (19%)
  5. Gary: 223 comments (15%)
  6. James Burkhardt: 180 comments (39%)
  7. bhull242: 150 comments (13%)
  8. Mike Masnick: 133 comments (25%)
  9. Toom1275: 118 comments (9%)
  10. Anonymous Anonymous Coward: 108 (14%)
Once again, Stephen T. Stone has swooped in to take the top spot by a wide margin. Impressive. Last year, we noted that James Burkhardt jumped onto the list as a first timer and had the highest percentage of insightful comments with 24% of his comments reaching that level. This year both Stephen and That One Guy got to 26%, but James lapped them by getting an astounding 39% of his comments deemed insightful. Nice going James and please keep it up.Top 10 Funniest Commenters, based on how many times they got the LOL icon: Parentheses shows what percentage of their comments got the LOL icon
  1. Stephen T. Stone: 118 comments (3%)
  2. Thad: 68 comments (4%)
  3. That One Guy: 52 comments (2%)
  4. Gary: 51 comments (3%)
  5. Toom1275: 38 comments (3%)
  6. Norahc: 24 comments (9%)
  7. Mason Wheeler: 21 comments (3%)
  8. Anonymous Anonymous Coward: 20 comments (3%)
  9. That Anonymous Coward: 17 comments (3%)
  10. Bamboo Harvester: 14 comments (2%)
As we've noted the past few years, it's definitely more difficult to get the "funny icon" than the insightful one, though that may just be a statement on the times we live in. Stephen retains his leadership spot as last year he topped this board as well -- but that also means that Stephen took a clean sweep of all three comment categories. Way to go, Stephen. The other standout on this list is Norahc, who had the highest percentage, by far, of comments deemed to be funny. Excellent job and do keep it up.And, with that, the 2019 books are closed and let's get moving on the 2020 comments. I'm sure there will be plenty to comment about.

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Take 2 Sues Fan Over Project To Finally Bring 'Red Dead 1' To The PC

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Take 2 Interactive, the famed game studio behind the Grand Theft Auto franchise, is no stranger to our pages. When we have posted about the company, however, it has typically been to highlight how many ridiculous lawsuits and threats it faces over IP from unlikely sources. There was the ongoing battle with Lindsay Lohan over GTA5. There was a strange cease and desist notice sent to the company by the infamous Pinkerton Agency over its accurate depiction in Red Dead Redemption. The point is that Take 2 has been on the receiving end of frustrating intellectual property challenges such that it really should have some perspective on better ways to handle things than to simply be as heavy-handed as possible.But apparently that's a lesson that hasn't stuck. Take 2 Interactive recently filed a lawsuit against Johnathan Wyckoff and several John Does over what appears to be a now-defunct project entitled Red Dead Redemption: Damned Enhancement Project. The goals of the project were somewhat simple. Fans of the series may already know that the original title was never released for the PC, only the PlayStation. The original game was also released several years ago, with now outdated graphics. Using the more recently released PC version of Red Dead 2, the project aimed to put the game map from the original game into its sequel and then update the graphics from the original game to produce a more polished version of the original. Worth noting here is that the gaming public has complained about the lack of a PC port of Red Dead 1 for years, with Take 2 offering no hint that it had any intention of meeting this demand.And yet they filed suit anyway.

In September, however, things started to go off the rails. Project lead ‘DemandDev’ took to GTAForums to reveal that development had been stopped. He didn’t directly state that Take-Two had put him under pressure but complained of being bullied by a corporation.“They done shady stuff getting my private info and contacted my family,” he wrote. “I’ve been contacting people to spread word. I’m not letting them them bully me and keep my mouth shut. I complied and stopped progress but hopefully I can sort out this.”Several months later, sorting it out will now have to be actioned through the courts. On December 26, Take-Two Interactive filed a lawsuit at a New York court against a Johnathan Wyckoff and John Does 1-10.
There are several layers of silliness in all of this. To start, if development has ceased as of the summer of 2019, what is the point of the lawsuit? Unless Take 2 has some kind of proof that this work has continued, this seems purely punitive in the most pernicious way possible. Add to that the fact that this development team is clearly made up of fans of Take 2's property and you have to wonder why threats and lawsuits are a better way to deal with this than reaching out to these fans and finding a way to at least bless their fan project if not bring them into the official fold and make use of their work entirely. We've made this point many times: copyright is not trademark. You can simply make a project official through cheap means without risk of losing your property rights.Finally, Take 2's suit nods at how this project would compete with a Red Dead PC port that Take 2 has had years to provide themselves, but for which it has never shown any interest.
Take-Two’s lawsuit details two matters. The first, the ‘RDRII Project’, aims to add the full RDR1 game map to RDR2. This, the company says, would not only “dramatically change the RDR2 experience but also reduce interest in purchasing a future release of RDR1 or a RDR1 add-on map for RDR2. The company doesn’t state it intends to release either, however.The second targets the ‘Red Dead Redemption: Damned Enhancement Project’ which Take-Two says would utilize game files from Grand Theft Auto V and RDR1 “to vastly improve the graphics and performance of the game” and enable players to play RDR1 on PC, where it isn’t officially available, “thereby destroying the market for an official, updated version from Take-Two, and creating competition for Take-Two’s PC-version of RDR2.”
To be clear, all of that is true... but then where the hell have you been, Take 2? The original Red Dead released just shy of a decade ago. I realize that development cycles can be long, but ten years for a PC port? If the company had intended on doing one to satisfy PC gamers, it would have been nice if it had been completed sometime in Barack Obama's first term. And when a fan project comes along to try and satisfy that desire, the company peels off a lawsuit?Again, Take 2 should know better, having been on the wrong side of IP bullying itself. This was an opportunity for the company to act cool and human, but it chose litigation instead.

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UL Pushes Security Standards For The Internet Of Broken Things

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If you hadn't noticed yet, the internet of things is a security and privacy shit show. Millions of poorly-secured internet-connected devices are now being sold annually, introducing massive new attack vectors and vulnerabilities into home and business networks nationwide. Thanks to IOT companies and evangelists that prioritize gee-whizzery and profits over privacy and security, your refrigerator can now leak your gmail credentials, your kids' Barbie doll can now be used as a surveillance tool, and your "smart" tea kettle can now open your wireless network to attack.Security analysts like Bruce Schneier have been warning for a while that the check is about to come due for this mammoth dumpster fire, potentially resulting in human fatalities at scale -- especially if these flaws are allowed to impact integral infrastructure systems. But Schneier has also done a good job noting how nobody in the production or consumer cycle has any incentive to take responsibility for what's happening:

"The market can't fix this because neither the buyer nor the seller cares. Think of all the CCTV cameras and DVRs used in the attack against Brian Krebs. The owners of those devices don't care. Their devices were cheap to buy, they still work, and they don't even know Brian. The sellers of those devices don't care: they're now selling newer and better models, and the original buyers only cared about price and features. There is no market solution because the insecurity is what economists call an externality: it's an effect of the purchasing decision that affects other people. Think of it kind of like invisible pollution."
Enter consumer groups and other independent operations, who are trying to finally step in with solutions. One is the open source standards system Consumer Reports has been pushing that would require that security and privacy issues be clearly highlighted in product reviews. Underwriters Laboratories (UL), the electronics safety organization, is also now joining the fray, proposing a five tier certification process to help consumers better avoid products and vendors who view privacy and security standards as an unnecessary afterthought:
"These days, when you look at products, they have been moving from an analog function to a digital function," said Andrew Jamieson, UL's director of security and technology. "From that context, the security of the software directly affects the safety of the product, so we have to really start thinking about that."There is no unified standard for connected gadgets, which means that the smart TV you buy could be a hacking concern waiting to get plugged in. Unless you researched all your connected gadgets yourself, there'd be no way of knowing without a standard."
The UL's white paper on the proposal is worth a read. Granted such a system isn't going to get a lot of help from industry, which won't want to a.) lose revenues because some informed consumer avoided their products, or b.) be forced to spend money to improve privacy and security standards on current and past products. Similarly, captured regulators and well-lobbied lawmakers aren't likely to want to upset apathetic corporations. Which brings us back full circle, waiting for security scandals of unprecedented scale that will finally prompt action in this indisputably broken space.

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Court (Barely) Allows Class Action Lawsuit Over Google's Location Tracking To Move Forward

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A 2018 lawsuit [PDF] against Google over location tracking survives, but only just. The lawsuit -- filed after a report showed Google was still collecting location data even after users shut off location services on Android phones -- alleges Google violated California laws and privacy protections by tracking users (including children) after it had been told not to.The lawsuit has been dismissed [PDF], but the court is giving the plaintiffs a chance to amend the lawsuit and suggesting there are issues the court alone can't decide. (via FourthAmendment.com)The plaintiffs allege they were led to believe Google would no longer collect and store location data when "Location History" was shut off. They cite Google's own support page, which (formerly) stated "With Location History off, the places you go are no longer stored." The court says this language could have misled users, no matter what Google's Privacy Policies and Terms of Services actually said about location data.

Drawing all inferences in favor of Plaintiffs, a reasonable user could believe that disabling Location History prevented Defendant from collecting and storing geolocation data. This conclusion is bolstered by the fact that many people were mislead by the effect of disabling Location History. See, e.g., Compl. ¶ 4. Moreover, the support page Defendant points the Court to was created after this litigation had already commenced. At the time Plaintiffs’ original complaints were filed, the page described Web & App Activity as merely a means to “[s]ave your search activity on apps and in browsers to make searches faster.” Id., Ex. 28. The page did not expressly state that geolocation data may be collected.
Google argues that users consent to sending location info to Google when using some of its services. That may be, but the court points out people agreeing to send some data to Google when using products like Google Maps is not the same thing as granting Google permission to store that data indefinitely. No good, says the court.
The Court thus rejects Defendant’s contention that by consenting to transitory use, Plaintiffs consented to geolocation collection. To the contrary, it is plausible that Plaintiffs gave a narrow consent to geolocation tracking, exclusive of data storage.
Either way, it's probably not going to be settled at this stage of litigation, which is already in its sixteenth month.
It is plausible that Plaintiffs only consented to transitory use tracking and revoked any consent to the storage of their geolocation history. It is also plausible that they did not revoke such consent. The Court cannot conclude either way—factual disputes remain. “This is an issue for the jury.” Opperman, 205 F. Supp.3d at 1073 (holding that the plaintiffs produced sufficient evidence showing they did not consent to the defendants’ actions). For these reasons, the Court holds Plaintiffs have plead sufficient facts to show they did not consent to the storage of their geolocation information
The court does dismiss the plaintiffs' CIPA (California Invasion of Privacy Act) claims. By conceding they gave Google permission to collect location data when using Maps or checking "showtimes for movies playing nearby," the litigants have undercut this claim.
Hence, Plaintiffs issue is not with Defendant tracking them during application use, rather their issue is with the storage of that data. See Opp. at 3–4 (“[I]n accepting the transitory use of location information for an immediate, discrete purpose, Plaintiffs in no way consented to indefinite storage of their daily locations and movements . . . .”). For this reason, Plaintiffs’ CIPA claim fails as a matter of law because CIPA, by its plain terms, is not concerned with data storage but focuses on unconsented data tracking, which is not at issue.
That claim is dismissed with prejudice as the court sees no way the plaintiffs can amend this particular claim to make it actionable.The California-based invasion of privacy claim fails as well, but not as badly. Invasion of privacy claims are Fourth Amendment-related, but the court sees nothing in Google's actions that could possibly be a Fourth Amendment issue, even with recent Supreme Court decisions expanding citizens' expectations of privacy.
Plaintiffs contend that Defendant’s surreptitious collection and storage of comprehensive and highly sensitive location data violates their information privacy rights. Opp. at 15. Even if the collection of granular and specific location data establishes an information privacy interest, Plaintiffs’ theory is undercut by the admission that Defendant only tracked and collected data during use of Google services. Accordingly, Defendant’s “profile” of a user is only as specific as their use of Google services. Carpenter v. United States and United States v. Jones do not undercut this conclusion.
What Google collected was far less than what the plaintiffs' cellphone providers collected, and yet, the lawsuit only alleges a violation by Google.
First, there was no claim that MetroPCS and Sprint, the phone companies holding the cell-site location information, violated the plaintiff’s right of privacy by having such robust geolocation records. Id. at 2212. The case thus does not stand for the proposition that geolocation collection violates the right of privacy.Second, the cell-site location information discussed in Carpenter was comprehensive—the cell-site location information provided cellular companies with a rough “map” of a customer’s fluid movements. Id. at 2211. Such comprehensive data collection is not at issue here; Plaintiffs’ geolocation information depends on how often they use Google’s services. Defendant’s collection of geolocation data is not automatic; it does not happen by the routine “pinging” of a cell-phone tower.[...]Here, unlike the continual GPS tracking in Jones, not all of Plaintiffs movements were being collected, only specific movements or locations. Such “bits and pieces” do not meet the standard of privacy established in Carpenter or Jones.
This allegation is being allowed to move forward, though. But it probably won't live on for long if the plaintiffs can't find something more specific to allege than a theoretical "mosaic" of the plaintiffs' movements, which possibly included visits to "sensitive or confidential locations."It's not that Google is in the right if it misled phone users into thinking they weren't being tracked when they were being tracked. It's also not right just because cellphone service providers track location almost continuously. But if the claim is that Google collected users' location data when users utilized services they knew would send that data to Google, then the lawsuit should fail.

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Announcing The Public Domain Game Jam: Gaming Like It's 1924!

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Gaming Like It's 1924: The Newly Public Domain Game JamHappy New Years, everyone. Last year, for the very first time in two decades, the US actually allowed some works to enter the public domain. This represented the end of an era in which copyright maximalist lobbyists had been able to regularly extend copyright terms each year to prevent any new works from entering the public domain. However, the backlash to such practices had become so vocal, and the evidence for why such term extensions were necessary had become so non-existent, that they didn't even make any serious attempt to extend them again, leading works from 1923 to actually enter the public domain. Well, now it's 2020, and works from 1924 have entered the public domain.Last year to celebrate, we held our very first public domain game jam, asking people to create both analog and digital games utilizing newly public domain works. It was a great success with over 30 entries, including some really amazing winners.This year, we're doing it again, with the Gaming Like It's 1924 public domain game jam. The rules are basically the same as last year. For the entire month of January, you can submit your digital or analog games (specific rules are at the link) based on some of the newly public domain works from 1924. If you're looking for ideas on what works are there, Duke's Center for the Study of the Public Domain has an excellent list and LifeHacker has called out some highlights as well.Once again, we're offering up prizes (with even more choices this year) in a variety of categories: best analog game, best digital game, best adaptation of a 1924 work, best remixing of multiple sources, best "deep cut," and best visuals. We also have a wonderful and diverse judging panel, that is a mix of gaming and copyright experts (and a few who qualify as both!).You certainly don't need to follow the path of those who won last year, but if you want, you should check out last year's winners (and all the other submissions as well) to get some ideas. The contest is open for the entire month of January, with judging in early February. We hope you'll consider entering and help demonstrate the value of a robust public domain, and the ability to build on those earlier creative works.

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New Year's Message: Opportunities Come From Unexpected Places

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It's that time again. Ever since 2008, my final post of the year has been a reflection of some sort -- not necessarily on stories from the past year, but usually somewhat of an echo of what inspired me to write the original post in 2008. People had highlighted two seemingly contradictory things about me: that I was perpetually optimistic and happy about the state of innovation and future possibilities, but also that I seemed to focus so much attention and energy (some misleadingly have called it "anger") at efforts to impede, hold back, or simply block important and useful innovations. As I've said repeatedly, these two things are not in conflict. It is entirely possible to be optimistic about innovation, while frustrated at those who seek to prevent it, for whatever reasons. If you'd like to look over the stories from the past, they're all listed here:

In this past year, as the so-called "techlash" narrative has gotten even stronger, and the first major efforts to chip away at intermediary liability (FOSTA in the US and the EU Copyright Directive in the EU) have been successful, even more of the people whose views I appreciate and respect have turned from being optimistic about technology towards being pessimistic and have made some arguments about how innovation has maybe gone too far and needs to be reined in somehow. I believe that, with the benefit of hindsight, we will eventually recognize that this techlash narrative was overblown (and often pushed by those with other agendas) and we will once again recognize that innovation has the power to make everyone better off.Last year's message was about experimenting and trying different things -- as we did that year in releasing our first game. This past year, we continued to do that in releasing our first fiction anthology, the "Working Futures" collection of science fiction about the future of work. We also did some more gaming work, and you'll see some details of that very, very soon (so stay tuned). This year also represented the end of a headache for us that has allowed us to finally put more focus on some of these new projects we had been hoping to do.Indeed, I think the key lesson learned from this year has been that opportunities for amazing things to happen can come from unexpected places -- and it's important to continue to keep an eye out for those opportunities. After all, they're the easiest ones to miss and let slip by.For example, I completed my long "Protocols, Not Platforms" article for the Knight 1st Amendment Institute at Columbia University, which has partly inspired Jack Dorsey to have Twitter begin an experiment with protocols that I'm excited to follow closely. You can assume I'll be writing more on this topic as well, and following developments in this space. At the very least, as a friend told me after Dorsey's announcement, it showed how the power of writing out ideas can help influence changes in the world. I certainly hope that Techdirt can continue to do exactly that, and again bring about more powerful, useful innovations that make the world a better place for everyone.This year, we also successfully sued ICE over publicly claiming that it had seized over a million domains, and then saying it had no responsive records when we asked for a list of those domains. Eventually, ICE disclosed to us that its own press release was misleading and it didn't really seize them. Unfortunately, that didn't actually stop ICE from making similar claims this year...Techdirt's think tank arm, the Copia Institute, also got quite a bit done this year, including releasing two major reports -- the 2019 version of The Sky is Rising, all about the state of the entertainment industry, and Don't Shoot The Message Board, with a quantitative look at how stronger intermediary liability protections drive innovation. We've also continued to focus on small gatherings and roundtable events, bringing people to discuss various challenges and opportunities regarding innovation. We've got more planned for 2020 as well.As we head into 2020, we hope to continue to experiment, to try different things, and to seek out those exciting unexpected opportunities. Of course, we can't continue to do what we do -- whether it's keeping Techdirt going or experimenting with these other ideas -- without your support. We've put together a handy-dandy page on all the different ways to support us so you can just go check that out. I'd also recommend checking out our Working Futures collection of short science fiction as well, since that's new this year.Finally, the last point I make each and every year is that what has always made Techdirt worthwhile was the community of folks here. That is: it's you reading this right now. In an era where so many journalism operations are pushing people away and chasing the latest trends and "clicks," we've always felt it best to try to focus on building a better community. The discussions by all of you, whether directly on the site or elsewhere, continue to make what we produce better and better each year -- and we can see what kind of impact that can have on the world around us. So thank you, again, for making Techdirt a special place where we can share and discuss different ideas. As always, I look forward to find out what you have to say in 2020.

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Court Blocks Maine Attempt To Force Cable Providers To Sell Individual TV Channels

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For the better part of two decades, the cable industry has fought tooth and nail to prevent having to sell cable channels individually (a la carte). Historically, the cable industry's defense of this opposition is that letting consumers buy individual channels would do two things: kill off niche channels, and raise rates on consumers. Granted you're supposed to ignore that both things have been happening anyway. Despite streaming competition, cable rates continue to skyrocket, and cable operators themselves have been dumping less watched channels from their lineups anyway in a bid to shore up tightened margins.The streaming sector's impact on these issues remains a work in progress. And state or federal efforts to force cable providers to sell channels individually haven't gone particularly well.Case in point: back in September, Comcast sued the state of Maine for trying to force the company to sell users individual cable channels (LD 832). Comcast lawyers insisted that the new law violated the company's First Amendment rights, and told news outlets the law would "suppress competition and result in higher consumer prices and less program diversity." Historically, "this violates our company's First Amendment rights" is an argument telecom lawyers throw against the wall in every case in a bid to try and see if it sticks.In this case, it appears to be working. Comcast's argument was twofold: the law violated Comcast's editorial decision making right to require consumers to take bundles of programming, and violates the First Amendment's prohibition on speaker-based regulations -- since the law applies to incumbent cable providers but not other pay TV providers. It's that latter argument that appears to have swayed U.S. District Court Judge Nancy Torresen's decision to impose a preliminary injunction preventing the bill from taking effect. She appeared to be less swayed by Comcast's phony concern that such laws would raise cable TV prices:

"At this initial stage, I cannot conclude that the State has carried its burden of showing that [the law] will, in fact, be likely to reduce prices and increase affordable access to cable," she said. But she also said: "The evidentiary record is weak at this point, but the record does contain evidence that cable pricing has greatly exceeded the pace of inflation over many years. This may provide a separate special characteristic that would support differential treatment of cable operators. Because I ultimately conclude that the State has not met its burden of showing that it is likely to succeed under intermediate scrutiny, I do not need to decide this issue at this time."
At this point it's probably not worth trying to force cable's hand on this subject. In large part because growing competition in the pay TV space should ultimately do the heavy lifting here. Streaming competition is completely restructuring the pay TV landscape, resulting in traditional cable operators (especially those who refuse to compete on bundle flexibility or price) losing millions of pay TV subscribers each year. Even if this law fails, competition should ultimately pressure even Comcast to begin actually listening to consumers if the company wants to remain in the pay TV business.The real problem remains in broadband, where giants like Comcast have secured a growing monopoly thanks to US telcos that have lost interest in the fixed residential broadband market and refuse to upgrade their networks. As pay TV margins tighten from competition, giants like Comcast and Spectrum will simply raise the price of broadband, most prominently via bullshit usage caps and overage fees. And since we've effectively neutered most federal oversight of the barely competitive US broadband sector, it's a problem that's going to stick around for a while (no, 5G isn't a panacea).

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