It's clear that digital technology will play a key role in helping to deal with the COVID-19 pandemic, whether as a way of disseminating information, telecommuting, or of keeping people entertained during lockdowns. Less welcome is the use of advanced surveillance and tracking techniques to monitor the movements of people to see if they are obeying quarantine restrictions. Another obvious way to apply technology is to manage the key resources being used to tackle it. That's what the UK's National Health Service (NHS) is doing:
The NHS is preparing to unveil a "data platform" which tracks the movement of critical staff and materials, giving ministers the first ever comprehensive view of the entire health system, Sky News can reveal.
Items tracked include the capacity of emergency departments; the number of calls to the NHS helpline; and the number and location of beds, ventilators and NHS staff. It is clearly crucially important to have a clear, real-time picture of all of these in order to manage this fast-moving disease as effectively as possible. The problem with this major new database and its associated dashboard is that the digital side of things is being handled by Palantir, which has become synonymous with high-tech government surveillance in both the US and further afield. Its move into analyzing health data is potentially concerning given the highly-personal nature of the information it will be handling. It is also likely to be the first of many such moves, rather than just a one-off.NHSX, the NHS "innovation unit" managing the project, is well-aware of Palantir's reputation and the worries its participation will engender. It is taking steps to head those off:
Despite the speed at which it has been forced to work, NHSX says it has taken full account of both data protection legislation and privacy concerns.The system removes identifiers such as names and addresses in order to keep the data as anonymous as possible. NHSX has also committed to closing the data agreements and removing or destroying the data once the pandemic abates.Although sensitive personal health data is used to inform the dashboard, it is stored by Public Health England, and only provided to Palantir in an aggregated form
We must not blindly accept the mantra of "desperate times call for desperate measures," but instead forge solutions that can survive a return to normalcy and not fundamentally alter our societal values. Any exceptional measures must be clearly justified by the facts and conditions of the moment but, also, in enacting them, build in mechanisms for rolling them back after the crisis and soberly evaluating the extent to which they were necessary and how we can do better next time. This is an emergency -- perhaps the defining one of our age. In acting decisively to defeat this pandemic, we must do so in a way that we will recognize ourselves when it's done.
Those are noble sentiments. Let's hope the reality matches them.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.
Everyone has rights, even the people who often disrespect the rights of others. But those rights can only be violated in certain, specific ways and the two cops, who sued over alleged rights violations, didn't actually have their rights violated.Officers Denis Lawlor and Daniel Varallo once worked for the Metropolitan Water Reclamation District (MWRD) in Chicago. They were fired after some of their candid comments about their work ethic and coworkers were inadvertently publicly broadcast on a Illinois State Police channel. These comments were recorded and turned over to the officers' employer, which correctly decided these two officers should find somewhere else to work. (via FourthAmendment.com)Lawlor and Varallo arrived at work and set about doing what they apparently normally did: nothing. This isn't an assumption. It's what they admitted to during the conversation they thought they were having privately. However, the officers' expectation of privacy isn't the same as the Fourth Amendment's expectation of privacy, even if they were safely (or so they thought) ensconced in a "break room with a lock in a secluded area… during the sparsely manned night shift."But first comes the First. The fired cops claimed they were retaliated against unlawfully for their protected speech. The court doesn't think much of this argument, especially since the plaintiffs did all they could to avoid discussing the content of the speech they claimed was protected. From the decision [PDF]:
[T]he evidence before the Court suggests that the speech was not a matter of public concern. Plaintiffs characterize their statements as “street vernacular and non-politically correct language.” But Plaintiffs avoid pleading the actual contents of their conversation or any specific statements that prompted the adverse employment action. Some of the specific statements that prompted Plaintiffs’ termination, however, were contained in the Decision of the MWRD Civil Service Board setting out the reasons for Plaintiff Lawlor’s termination.The Civil Service Board noted that Plaintiff Lawlor:• “informed [Varallo] how to drink alcohol” while on duty,• explained how he slept on duty by saying “I just set the alarm on my phone (inaudible) for every F***ing hour and fifty-eight. So I call in at fifty-nine, go right back to f***in’ sleep. After you call in at five o’clock, set that motherf***er for six o’clock, you know so you get up to come and do your f’**ing trunk checks,”• referred to Martin Luther King Day by saying “White guys should call it James Earl Ray Day,”• Saying of African American co-workers that “It was the n***er laborers that f***in’, that f***ed us,”• and, in referring a specific African American co-worker, saying “So that stupid Alabama hill n***er is going to think I’m the one that’s trying to bring in relief people who cut down my overtime?”
Yes, this speech is protected. But it's not without consequences. The issue here is retaliation and only certain speech is protected under this element of the First Amendment. The stuff said here just doesn't cut it.
Plaintiffs cite no authority—and the Court is not aware of any—establishing that admissions of drinking and sleeping on the job, or using racial slurs towards co-workers, meet the first requirement for stating a First Amendment retaliation claim.
As for the Fourth Amendment claims, they're no better. The court says the arguments raised by the plaintiffs are ridiculous, not reasonable.
The question before the Court is whether society is prepared to recognize as reasonable an on-duty police officer’s expectation of privacy in a room used to sleep and consume alcohol on the job without his supervisors’ knowledge. Common sense says the answer is “no,” and Plaintiffs cite no authority to the contrary.
The room that supposedly held the officers' expectations of privacy was actually accessible by other MWRD officers seeking to while away the workday not doing any work.
Plaintiffs do not allege that this “break room” was given to them by the MWRD for their “exclusive use” or that no one else had access to the room (rather than that it was unlikely anyone else would access the room). In fact, it was a secret room hidden from MWRD supervisors, and Plaintiff Lawlor named several other employees who had access to the area.
The court reiterates its point about reasonableness and the Fourth Amendment.
[E]ven if Plaintiffs had subjective expectations of privacy in their beer-drinking and nap-taking hideout, society does not appear ready to recognize them as objectively reasonable.
So, what have these officers (hopefully) learned? Several things. First, protected speech can be protected and still have negative consequences. The Fourth Amendment doesn't cover "private" conversations that are inadvertently publicly broadcast. And, if you insist on suing the manufacturer of the handsets that supposedly malfunctioned -- resulting in your termination -- you might get hit with sanctions.
Unsurprisingly, Motorola suggests that Plaintiffs violated Federal Rule of Civil Procedure 11(b) and seems to be considering a motion for sanctions under Rule 11(c)(2).
Cops have rights. But their rights work like they work for us. They don't get extra First or Fourth Amendment rights just because. They already have extra rights, like qualified immunity -- something that compounds the defeat suffered here as the court also grants qualified immunity to the State Police and the MWRD for their actions in this case. Maybe if these officers spent more time working and less time drinking, sleeping, and making racist statements about their coworkers, they'd still be employed.
We've written a few times about the White House's unconstitutional retaliation against journalists it did not like, such as Jim Acosta and Brian Karem. PEN America, a key group fighting for free speech rights for journalists and writers, has now been allowed to proceed in its lawsuit against the President over his campaign of retaliation against journalists. PEN America had sued back in 2018, asking for declaratory and injunctive relief (basically the court telling the Trump White House to knock it off) against a variety of forms of retaliation he had done or threatened against the press.Specifically, PEN America had raised five actions that Trump had done or threatened to do in retaliation against the press: barring access to White House briefings, revoking (or threatening to revoke) security clearances of ex-government employees for commentary made to news organizations, threats to revoke broadcast licenses, raising postage rates to attack Amazon in response to Washington Post coverage, and interfering with the AT&T/Time Warner merger over anger about CNN's coverage.The DOJ had argued in response that PEN America had no standing, since Trump had not targeted PEN America. PEN America's response was that Trump had targeted PEN America members, including various news orgs and their employees, such as Jim Acosta. Indeed, when the filing was first made, we pointed out that the "standing" question would be a big hurdle. However, in a bit of a surprise, the court has said that PEN America has enough standing to proceed... at least on two of the issues at play:
Plaintiff has constitutional standing to pursue First Amendment claims against Defendant's practice of (i) selectively barring access to the White House press corps, including by revoking or threatening to revoke press credentials, due to hostility to the reporters' speech (the Press Corps Claim), and (ii) revoking or threatening to revoke the security clearances of former government officials whose commentary he dislikes (the Security Clearance Claim). As explained below, Plaintiff does not have standing to challenge Defendant's alleged threats to revoke broadcast licenses, the executive order on postal rates, the directive to challenge the AT&T-Time Warner merger or regulatory threats against internet companies.
When PEN America first filed the case, we noted that the standing issue for those direct actions against companies would be a tough one, as it should be the media companies themselves who would have to file suit, rather than PEN America, and that seemed to be where the judge came down as well:
Plaintiff does not have associational standing for the other allegations -- Defendant's revocation of security clearances, threats to revoke broadcast licenses, the postal rates executive order or the challenge to the AT&T-Time Warner merger and regulatory threats to internet companies -- because the Complaint does not identify any PEN America member who has standing to bring these claims. The only member named period is Mr. Acosta. But Mr. Acosta does not have a sufficient personal stake in these allegations to confer standing.
Basically, just because some of your unnamed members might sorta be impacted indirectly by these threats, that's not enough for standing:
Mr. Acosta is many steps removed from each of the challenged actions, and any purported injury to him is far too speculative.... Defendant's remarks about revoking broadcast licenses are Twitter vitriol, posed as questions (Collusion? At what point is it appropriate to challenge their License?), and refer vaguely to the Networks, not to CNN where Mr. Acosta works. The injury to Mr. Acosta due to the AT&T-Time Warner antitrust lawsuit is similarly speculative, because the lawsuit targets only CNN's parent. Likewise, the postal rates executive order, security clearance revocations and regulatory threats to Google and social media companies have no direct bearing on Mr. Acosta.
However, the surprising bit is that standing was granted regarding the direct issues regarding the White House press corp and former White House staffers who might lose their security clearance in a fit of anger by the President (this was done against former CIA Director John Brennan).Here, the court says there's enough to let the case move forward on these points, mainly because it can name an actual person who was impacted directly by these issues:
The Complaint alleges that Mr. Acosta and the press corps have suffered an objective harm [and] a threat of a specific future harm,... and that Mr. Acosta's resulting speech and receipt-of-information injuries are concrete, actual and particularized. Defendant has made an example of Mr. Acosta, by stripping his press credentials after he asked Defendant critical questions about the Administration, barring Mr. Acosta from the venue necessary to perform his job and directing the Press Secretary to warn other reporters that they would face similar consequences as Mr. Acosta.... The allegations furthermore suggest that Defendant punished Mr. Acosta publicly in order to chill his speech and the press corps'. In demonstrating that Defendant would in fact punish reporters who spoke critically, Defendant made his threats of future punishment more credible, and consequently, effective. The speech injuries are furthermore particular to Mr. Acosta. As a member of the press corps, and as a reporter specially targeted by Defendant, Mr. Acosta is uniquely vulnerable to Defendant's threats. He also has a unique interest in hearing the questions and discussion of his press corps colleagues with Defendant, which facilitate Mr. Acosta's own reporting.The allegations also establish a causal connection between the injuries and the challenged conduct. It is plain that the injuries trace to Defendant's actions. A favorable ruling furthermore will likely redress the practice. The Complaint explicitly pleads, quoting from the Press Secretary's e-mail, that Defendant and his staff are ready to heed a court decision on proper rules of conduct for governing the White House press corps.
For what it's worth, the DOJ tried to wipe away the Acosta point by arguing that since it gave him back his press credentials, there was no issue, but the court points out (in a footnote) why that's not true at all, because the real issue is the chilling effect. And that's still around.
Defendant argues, to the contrary, that Mr. Acosta has no injury-in-fact because his press credentials were restored in November 2018. But this argument misunderstands the nature of the asserted injuries. Although loss of credentials may be injurious, Plaintiff has alleged instead that speech [itself] has been adversely affected, i.e. the injury of an ongoing chilling of speech and corollary ongoing interference with receipt of information.
As for the security clearance claim, the court also says that there's enough evidence to suggest a specific kind of injury for which it has standing. Part of the reason here, is that PEN America's advocacy role often relies on getting information from former government officials -- so a chill on them would harm PEN America directly.
With respect to the Security Clearance Claim, Plaintiff has a receipt-of-information injury because Defendant's actions plausibly chilled the speech of the six government officials named in the Complaint. After four of these officials spoke critically about Defendant in the media, the Press Secretary announced that Defendant was considering revoking the six officials' security clearances, expressly citing their media commentary. Defendant ultimately revoked the security clearance of one official, an allegedly unprecedented action by a President. The officials are otherwise frequent and willing speakers in the media. The Complaint has plausibly alleged therefore that Defendant's retaliation and threats of further retaliation against these officials have objectively chilled the volume or quality of their media speech. Plaintiff's right to receive the speech has in turn been impaired........ Plaintiff is an organization that, among other things, engages in advocacy for freedom of the press, monitors the government's impact on the press, and publishes research and analysis on these issues. Plaintiff's sources of information include these former government officials, who provide unique and expert insight on the Administration. Loss of these official's speech is therefore not a generalized grievance and affects Plaintiff's operations directly.... Thisinjury is indisputably traceable to Defendant's actions. The allegations that Defendant and his staff will be responsive to court orders suggest that a favorable ruling would deter Defendant from retaliating or threatening to retaliate against the officials' speech.
Separately, there's standing on behalf of PEN America's members who rely on those former government officials as well.
Similarly, Plaintiff has organizational standing as to the Press Corps Claim. Defendant's actions have plausibly chilled the White House press corps' speech, the questions they ask Defendant and the reporting they consequently are able to publish. The chilling impedes Plaintiff's right to receive information. Since PEN America monitors how government interacts with press, and its own members are in the White House press corps, Plaintiff has a particular interest in receiving and monitoring this speech.
I still wonder how useful this overall case is -- and think it would have been stronger if those who were the direct targets of Trump's statements had sued on their own behalf. But, keeping the Trump administration from threatening retaliation so freely would certainly be a win for the 1st Amendment.
When I write about this new lawsuit, filed on behalf of "retired MMA fighter" Nick Catone, against Facebook for removing his account over his anti-vaccine posts, you may expect that it was filed pro se. However, somewhat shockingly, there's an actual lawyer, James Mermigis, who filed this dumpster fire of an awful complaint. Mermigis does not appear to have any experience in internet law, and boy does it show. His various profiles online list his experience in divorce law, real estate law, and personal injury law. His own Twitter feed is basically all just wacky anti-vax nonsense, and, late last year, he was quoted as representing people trying to block a NY law removing a religious exemption for vaccines. We've gone over this many times before, but spewing junk science and angry rants that are literally putting tons of people in danger is no way to go through life, and it's certainly no way to file a lawsuit. Especially not in the midst of a pandemic where a vaccine sure would be nice.But, alas.The filing is bad, and Catone and Mermigis should feel bad about it. It will be quickly dismissed under CDA 230, even though (hilariously) it claims that Facebook's moderation of Catone's account "violates" CDA 230 (which is not a thing, as you cannot "violate" CDA 230). This lawsuit is like a collection of misunderstood tropes about internet law. It starts with this:
As the United States Supreme Court noted in Packingham v. North Carolina.... Facebook is part of the "vast democratic forum of the Internet." Packingham extended the concept of a quintessential public forum from parks and physical spaces to cyberspace.
Packingham is kind of the go to citation from bad lawyers trying to argue that having your content moderated on Facebook violates the 1st Amendment. It's been tried many, many times, and it has always failed because Packingham does not say what these people want it to say. Packingham said that the state cannot pass a law that kicks people off of the internet. It says nothing about private social media companies removing idiots spewing misinformation from their own sites.Indeed, an even more recent Supreme Court ruling, in Manhattan Community Access v. Halleck, not only shoots down the idea that content moderation on private social media websites is subject to the 1st Amendment, it spells it out in big flashing letters that it's a bad idea to even try to make that argument because private companies are not the state. Packingham only applies to the state.But that's not going to stop Mermigis. He goes on for a while about how big Facebook is, then rewrites history to suggest Facebook really only started doing content moderation after people were upset about... Cambridge Analytica and the 2016 election? Of course, the Cambridge Analytica issue wasn't a content moderation issue, so much as a privacy and data sharing issue, but hey, someone's trying to make a case out of very, very little. I'll just include this paragraph and point out that Facebook's community standards and content policy team dates back many, many, many years before 2016:
To assuage an angry public and ultimately to protect its own financial interests, Facebook announced plans to create and enforce so-called "community standards" for content published on its site. These standards are directed toward speech that Facebook regards as inimical to a "safe environment."
So, again, that's not when or why Facebook put in place community standards. Also, the final sentence of this paragraph basically admits that Facebook's moderation efforts are in good faith, which makes this an even easier CDA 230 dismissal than most.Even more hilarious, the complaint whines that Facebook's community standards are too vague. But, uh, yeah. That's the point. When you have multiple billions of people posting content on your site, the rules need to be vague, because every day there are millions of "edge" cases that need to be looked at and have decisions made on whether or not the content is appropriate. That's why CDA 230 lets sites decide for themselves how to moderate. The complaint is literally making the case for why it should be thrown out on 230 grounds.
Among the content that Facebook finds "objectionable" is bullying and harassment. Facebook does not provide a definition for what bullying or harassment is. However it does provide a broad definition that may cover almost anything: "Bullying and harassment happen in many places and come in many different forms, from making threats to releasing personally identifiable information, to sending threatening messages, and making unwanted malicious contact." [....]The standards is hopelessly vague. As Facebook itself notes "[c]ontext and intent matter, and we allow people to share and reshare posts if its clear that something was shared in order to condemn or draw attention to bullying and harassment."Facebook reserves the right to remove the "offensive" posts without notifying the user or giving the user an opportunity to clarify or edit his post. Moreover, Facebook reserves the right either temporarily or permanently to disable an account for violation of its "community standards" policy.
Uh, yeah. It reserves that right. And it has every right to, and if you don't like it, don't use Facebook. But not only did Catone use Facebook, it appears that he tried to build a local gym business based entirely on Facebook. There is a bit of a tragic backstory here, in that Catone lost an infant son, and seems to believe that vaccines had something to do with it, and thus sometimes posts typical anti-vax content. That's what appears to have lead to the suspension of his account -- especially since Facebook has ramped up its removals of anti-vax nonsense in the last few months.The problem here is that Catone (1) seemed to rely solely on Facebook for building up business for his new gym, and (2) mixed that account with posting his anti-vax screeds. So now he's blaming the fact that he was (reasonably, and well within Facebook's rights) banned from the site for trouble getting business going to his gym.
Plaintiff, Nick Catone MMA & Fitness, has used Facebook as the main way to grow and advertise the fitness center. In 2019, Plaintiff spent $15,564.17 in advertising. Plaintiff is currently spending $1800-2000 per month advertising with Facebook.Plaintiff purchased a 32,000 square foot building for his fitness center in 2018 and Facebook has been a huge part of his financial growth. Plaintiff needs Facebook to showcase his fitness center.
Uh, yeah, that's not how any of this works. I need Facebook to give me a pony, but the pony just ain't showing up. Unless Catone signed some sort of contract with Facebook in which Facebook promised to "showcase" his fitness center, he has no rights to speak of here. Catone, it appears, made the poor business decision to exclusively focus on using Facebook to build his business. Incredibly, it appears that Catone failed to set up an alternative means of running his business, relying entirely on Facebook, according to the lawsuit:
As a direct and proximate result of the acts and omissions of the Defendants, Plaintiff can no longer operate his business. Plaintiff cannot check messages, reply to posts or access his business page. The censorship threatens his livelihood as he invests $30,000 per month to run his business and has no access to run his business as he runs it through Facebook....If Facebook does not immediately reinstate Plaintiff's account and access to this account, Plaintiff stands to lose an unconscionable amount of money and may lose his business that he has invested millions of dollars in.
Nick, I think I see the root of your problem, and it ain't Facebook. If you set up your entire business there, didn't set up your own website or email or alternative way to get in touch with you... that seems to be indicative of your own bad business decisions. And you don't get to sue others over those. That's not how any of this works.Also fun is the way in which Catone's posts that got his account in trouble are described:
Like many of his fellow citizens, the Plaintiff, Nick Catone is a thinker who, regardless of whether he is right or wrong, loves to share his thoughts and hear the thoughts of others. He regularly posts on Facebook about his deceased infant son and the vaccines that contributed to the death of his son, seeking to engage in debate the community of friends whose respect he has gained.The Plaintiff, Nick Catone, used Facebook for open discussion regarding the safety and effectiveness of vaccines. Plaintiff felt that should be and [sic] open discussion to debating the merits of this serious public question.
Nick may think that, but that doesn't mean Facebook needs to host it.Also, Nick, Mark Zuckerberg didn't personally decide to censor your to "deflect attention" from Facebook scandals, even if your lawsuit claims that's what's going on:
Upon information and belief, Mr. Zuckerberg harbors political ambitions beyond his role as principal of Facebook. His decision to categorically censor the speech of concerned citizens including that of Nick Catone is intentional and is inspired by ill-will, malice, and a desire to deflect attention from himself and Facebook's practice of surreptitiously mining data for profit from consumers who believe they are receiving a free service devoted primarily to their welfare.
I'm sitting here trying to figure out the galaxy brain explanation for how "censoring" "thinkers" as part of an apparently malicious campaign, deflects attention from totally unrelated Facebook scandals or somehow helps his apparent political ambitions. I guess I'm not a "thinker" because I just don't see it.Anyway, claims. We've got 'em. They're not good, but they exist. According to the lawsuit it violates Section 230 of the CDA if you moderate:
The Communications Decency Act provides immunity from civil liability for materials published on interactive computer service sites. The provision of immunity was intended to avoid "content-based" chilling of freedom of speech in the "new and burgeoning Internet medium." Section 230 was enacted, in part, to preserve the robust nature of speech on the Internet. These principles were clear articulated in Zeran v. America Online....
Yeah, Mermigis, you gotta keep reading beyond that, because the way in which CDA 230 protects free speech online is by not allowing you to sue them for their moderation choices, because such dumb lawsuits would chill the ability to host any content online. I mean, dammit, you're a lawyer, at least read part (c)(2) of CDA 230 where it outright explains that you can't sue an internet company over its moderation choices -- which you admitted earlier were clearly in good faith.The next bit is just nonsense. I know there are other lawsuits out there (mostly those stupidly claiming "bias" in takedowns) but they all fail and this one will too, because this is not the law. It's the opposite of what the law says and no court has ever come close to this interpretation in dozens upon dozens of cases involving CDA 230.
Facebook enjoys immunity from suit under Section 230 of the CDA as a Congressionally mandated means of ensuring free and robust speech on the Internet. The privileged status necessary entails a corresponding responsibility to achieve the very goal for which Congress granted immunity: to wit, the preservation of free speech on a quintessential public forum.
No. That's not what the law says, not what it intended, not what it means, and no court has ever interpreted it that way because the law actually explicitly states the reverse -- that in order to support family friendly spaces on the internet, platforms face no liability for the moderation choices they make -- including booting off people spewing pseudo-science hogwash that puts people in harms way.
Facebook's enjoyment of immunity from civil liability for the material it transmits on the Internet transforms its editorial decision-making process into management of a constructive public trust.
The manner and means by which the defendants have banned the Plaintiff from engaging in free speech on Facebook are a violation of the CDA and constitute a willful and wanton violation of the terms of the constructive public trust.
That's gibberish. It is not what the law says. And, again, dude, CDA 230 is an immunity provision. You can't "violate" it.From there, we get into more gibberish: claiming that Facebook moderation violates the 1st Amendment. Again, this argument has been rejected numerous times, and many of those times the argument was made more competently than it was made here (and it's never been made competently, since it's legally nonsense). Facebook is a private company. It's not the government. Its actions around moderation literally cannot violate the 1st Amendment. To try to get around this, the complaint actually tries to argue that the CDA turns Facebook into a state actor. I only wish I were kidding.
The CDA's grant of immunity is integral to the government's purpose of promoting freedom of speech on the Internet. As such, the symbiosis between Facebook and the United States government transforms Facebook's action into state action under the doctrine enunciated in Burton v. Wilmington Parking Authority....
Uh, no. The Buron case is not even remotely analogous (that involved a government parking lot and a strip of retail stores that the government leased out to a coffee shop to help generate revenue to pay for the parking garage). That, uh, is nothing like a private company moderating its own space. And, honestly, we've got the Manhattan Cable case from literally last year that seems a hell of a lot more on point. Let's quote from the Supreme Court ruling from last summer:
when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine....The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.
To argue against that -- that the CDA by itself automatically turns any internet forum into a state actor -- is laughable beyond belief. It's not an argument a lawyer should be making.From there we get some silly add-on claims about "fraud," "implied warranty," "intentional and malicious interference" etc. These are the kind of toss-in extra claims one adds to try to add heft to an already weak complaint. They are not well argued and are barely comprehensible.And how can I leave out the damages request for in excess of $5 billion. Even that is argued in a weird, roundabout way. Rather than just asking for $5 billion like your average complaint, this one spends a bunch of paragraphs talking about totally unrelated things:
In April 2019, Facebook set aside a sum of $5 billion to use to pay an anticipated fine by the Federal Trade Commission involving systematic breaches of consumer privacy. Even so, the Defendants forecast significant profits.
Apparently Mermigis' research failed to find out that after setting aside that sum in April, the FTC went ahead and issued that fine against Facebook in July and Facebook paid up. Crack research there, buddy. Either way, what does that have to do with anything? Apparently, that now sets the floor for any damages for one Mr. Nick Catone:
Punitive damages in a sum sufficient to punish and deter Facebook for violating the First Amendment, the Communications Decency Act, for engaging in fraud, unfair or deceptive trade practices, intentional and malicious interference with prospective economic advantage and breaching the implied warranty of fair dealing. Because a sum of $5 billion appears to be insufficient to deter Facebook, the plaintiffs ask the jury for a sum significantly in excess of that amount.
Good luck, champ. Oh, and for what it's worth, I see that the punitive damages statement includes some for "unfair and deceptive trade practices" but as far as I can tell, they never actually claim that in the lawsuit -- which is a bold strategy. Anyway, this complaint should be a case study in how not to internet law. I assume the courts may be a bit slow to act, seeing as we're dealing with a pandemic, and not have time for a guy who wants to demand that private internet sites host his speech regarding evil vaccines, but this case will be dismissed in time. Perhaps by then we'll have a vaccine for COVID-19. That would be nice.
The COVID-19 pandemic sweeping the world, and in many cases shutting it down, has become so pervasive so as to even dominate the headlines here at Techdirt. To say the outbreak has altered our way of life would be a massive understatement. Social distancing, shutdown states, stuck in our homes, jobs reduced and gone; this whole thing has become a nightmare.And it impacts even areas of our life that we enjoy, but are less important than others, such as sports. Professional and college sports have basically taken an unwanted holiday, shutting down in an effort to partake in killing this virus off. It's been strange for fans like me, who wake up on Saturdays and have to find legit ways to watch sporting events that took place years and years ago as a substitute for live broadcasts. And if you think there aren't a great many people who are starved for live sporting content, you need only look to what is going on in the autoracing world, where it's basically all become eSports now.We'll start with Formula 1 Racing, which pivoted from its canceled live races into using video games as a substitute, using current and former drivers behind the virtual wheels.
Interestingly, because some drivers are pretty good behind a virtual wheel and others aren’t, the competition will “be configured in such a way to encourage competitive and entertaining racing,” which is a gentle way of leading into the fact rubbish drivers will be given advantages like “reduced vehicle damage, and optional anti-lock brakes and traction control for those less familiar with the game.”The races are going to be held on the same days as actual races were supposed to go down, which means the first one should be running any minute now (at time of posting), since the Bahrain Grand Prix was meant to be held today.
These races are being broadcast over the internet and a whole bunch of people are watching them. It's somewhat gratifying to see that real drivers driving virtual cars in a game realistic enough to get people to suspend the notion that they're watching video games somewhat has become a thing. All the more cool is how this is helping fans of the sport limp along through this epidemic while still being able to watch a version of the races and racers they love.But that pales in comparison to what NASCAR is about to pull off. Having created its own ad-hoc race using NASCAR video games and, again, real drivers, the whole thing was watched by enough people that the broadcast channels are going to pick it up and televise the next races.
The first eNASCAR iRacing Pro invitational Series event, held on Sunday, was—like Formula 1's move to video game competition—a chance for both drivers and fans to get some kind of racing fix in these weird and challenging times. In first place was three-time Daytona 500 winner Denny Hamlin, and nearly one million people watched it on Fox, so now a whole season of it, called FOX NASCAR iRACING, is going to take place.
And just to drive the point home that this is all about giving people a sense or simulacrum of their normal Sunday experience, Fox is bringing in the normal television commentators into the virtual "booth", including Jeff Gordon.To say that this whole episode the past several weeks has been surreal seems like it lacks punch. Still, it's been interesting to watch eSports fill the void for us, helping us try to pantomime normalcy in a world gone mad.
Federal judges continue to trip over themselves in their hurry to extend qualified immunity to law enforcement officers. No matter how egregious the violation -- and how simply wrong it appears to reasonable human beings -- cops can usually escape judgment by violating rights in new ways, ensuring there's no precedent that would make them aware they shouldn't do things like destroy someone's house after they've been given permission (and a key!) to enter.This decision [PDF] from the Fifth Circuit (and the Fifth Circuit can be the worst about protecting the government from citizens it has aggrieved, stinging dissents from Judge Willett notwithstanding) involves officers who shot a man holding a knife. Given that judges seem to believe any weapon real or perceived that "threatens" an officer makes ensuing homicides wholly justifiable, this refusal by the court to bless the actions of reasonably-scared cops is more surprising than it should be.The description of the events leading up to the shooting would seem to be laying groundwork for a QI-based dismissal:
In 2015, after a domestic dispute between Flores and his wife at Flores’s mother’s home, Flores’s mother called 9-1-1 for assistance. According to the 9-1-1 call transcript, Flores’s mother told the dispatcher that Flores beat up his wife and had “gone crazy”. Deputies Vasquez and Sanchez were dispatched to the residence in separate vehicles. While in route, dispatch advised Vasquez and Sanchez that Flores was upset, and that Flores wanted to commit “suicide by cop.” Vasquez was also informed that Flores had a knife.
The next paragraph, however, points to subverted expectations:
Twelve minutes elapsed between Vasquez’s arrival and the officers’ fatal shots at Flores. During those twelve minutes, the deputies had a number of encounters with Flores, and ultimately deescalated the situation. It was only after Flores was standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds that the officers looked at each other and then decided to shoot Flores. The officers each fired a shot, and Flores fell to the ground.
The Fifth Circuit says too many factual disputes remain unresolved. And one of the disputed facts is the officers' own testimony, which says something a cellphone camera recording of the incident does not: that officers were in danger of being attacked when they decided to shoot Flores as he stood motionless thirty feet away with his hands in the air.
Most significantly, the officers assert that “Deputies Vasquez and Sanchez were in imminent fear of death or serious bodily injury by the actions of Gilbert Flores at the time of the fatal shots.”
But the officers can't explain how they were in "imminent fear" when nothing about Flores' actions at the point he was shot indicated he was an imminent threat.
Flores had a knife, not a gun; was several feet away from the officers, the house, and the vehicle; had his hands in the air in a surrender position; and stood stationary in the officers’ line of sight. Under these facts taken in the light most favorable to Plaintiffs, we conclude that the district court correctly identified material factual disputes as to whether the officers violated Flores’s Fourth Amendment rights.
There is no automatic grant of qualified immunity because these officers should have known killing someone in a situation like this would be unlawful.
A reasonable officer would have understood that using deadly force on a man holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment.
With this rejection, there's probably a settlement on the horizon for the survivors of the shooting victim. The district court refused to dismiss the suit and the Fifth Circuit Appeals Court says the lower court's reasoning is sound and the right of citizens to not be killed by cops when they don't pose a threat is clearly established. Chalk up a win for the citizens, who, far too often, come out on the losing end when qualified immunity is in play.
For years and years and years, video games have suffered the brunt of blame for all manner of the world's ills. Real world violence? Video games. Mass shootings? Video games. Soccer team not performing well? Video games! Kids getting into hacking? Bruh, video games! Men not finding women attractive enough to keep the human race going? Video games did that, too!Which makes it kind of fun to now see media outlets suggesting, nay, pushing those impacted one way or the other by the coronavirus outbreak to go jump into those same dastardly video games.
Think of gaming as a personal stimulus plan for a nation of unexpected shut-ins: It’s not a long-term solution, it won’t work for everyone, and it won’t solve the underlying problems — but it can provide limited, temporary relief for some.Video games take many forms, but they are all essentially simulations. And when the real world is temporarily unavailable, a simulated version might be what we need.
Those of us who evangelize gaming, of course, have shouted this same line for years. Still, the point is only partially right. Yes, video games are something of a simulation... but typically a fantastical one. Which is the entire point, of course. During times of high stress, and being forced to be shut-ins by some invisible enemy that we may already have inside of us certainly qualifies, a little escapism through entertainment is nearly medicine. And certain games, frankly, are particularly well-suited to this situation.Stuck inside a small house or apartment because your state is in lockdown? Fire up that big screen TV and Skyrim and just walk the wilds for a while. Miss being able to get out into your big city and enjoy a little freedom? GTA will at least give you a simulation of that, albeit an over the top ridiculous one. Just need to turn your brain off for an hour because you lost your job and need to relax? I'll be damned if Stardew Valley won't set you at ease.
That makes games useful in another way. Some of us are shut in alone. But especially in cities, many are now effectively trapped inside modest apartments with family or roommates, and little private space. Games offer a form of personal escape, a way to simulate being elsewhere from the confines of your couch.And for those who are alone, games can also serve as social spaces, virtual fields of play for cooperative adventures or competitive contests. Many of today’s most popular games are online experiences that allow players to engage with friends as well as strangers, to forge digital versions of the same sort of bonds with teammates that can develop in the real world.
As the post notes, these are not long-term solutions, but they are therapy of a kind. All I'll say is that we should be damned glad our PCs and consoles aren't vengeful, or they'd refuse to help us in our time of need with all of the abuse we've heaped on them.
While it always raises alarm bells when the government is taking down websites, the Justice Department's announced enforcement action against a website claiming to sell "vaccine kits" for COVID-19 appears legit. At issue was some scammer who put up a website fraudulently claiming that the World Health Organization was "giving away vaccine kits" and you just had to give this just registered website $4.95 for "shipping" and you'd get one of these kits. The website, laughably, claimed:
You just need to add water, and the drugs and vaccines are ready to be administered. There are two parts to the kit: one holds pellets containing the chemical machinery that synthesises [sic] the end product, and the other holds pellets containing instructions that tell the drug which compound to create. Mix two parts together in a chosen combination, add water, and the treatment is ready.
The DOJ complaint suggests this was all just a scam to get credit cards and purchaser info for further identity scams with no actual product ever being sent.Again, while taking down websites always raises some 1st Amendment concerns, those don't seem to apply here. This was just blatant fraud, first claiming to be associated with the WHO, and second selling some snake oil vaccine or treatment that doesn't exist... oh, and on top of that, never actually having any product to sell, and likely using the credit card info for further scams. So, unlike some other law enforcement claims of prosecuting "false information" about COVID-19 and the response, this is a legitimate law enforcement action to stop outright fraud.Of course, given how many lies the President has been spewing about the COVID-19 response, it wouldn't surprise me to see him point people to similar websites via a tweet before this week is over. I mean, he's already pushing people to try snake oil treatments that are literally killing people.
Remember the EU's unitary patent plan? No surprise if you don't -- attempts to create a unitary patent system across the region have been dragging on for decades. Back in 2012, Techdirt noted that the European Parliament had finally approved the plan to set up a new Unified Patent Court (UPC) for the EU, but it still hasn't come to fruition. Recently, the scheme has been dealt two major blows that are likely to delay it further, even if they don't kill it off entirely.The first concerns the UK. It's one of the three nations that had to sign up to the UPC agreement for it to come into force. A big question was whether it could or would do so after brexit. The answer turns out to be "no". The second problem comes from Germany, where the country's constitutional court has ruled as follows:
The Act of Approval to the Agreement on a Unified Patent Court ("the Act of Approval") to confer sovereign powers on the Unified Patent Court is void. In its outcome, it amends the [German] Constitution in substantive terms, though it has not been approved by the Bundestag with the required two-thirds majority.
However, it's possible that can be solved by the Bundestag -- German's parliament -- holding another vote which does attain the two-thirds majority. There is likely to be pressure to do so because elsewhere the ruling by Germany's constitutional court (full translation from FFII.org) is helpful to supporters of the UPC, for reasons explained by The Register:
the German Constitutional Court effectively rejected the other arguments against the UPC's validity. In essence, they were: that because the UK is exiting the EU that the UPC is no longer valid because the UK was one of three compulsory signatories to it (the other two being France and Germany); and that the European Patent Office (EPO) is insufficiently independent because of "reforms" made by its former president Benoit Battistelli that concentrated power in his hands.
Importantly, the first point means the refusal of the UK to sign up is not regarded as an issue now that it has left the EU. As Florian Mueller writes on his blog: "there is widespread consensus that re-ratification (subsequently to renegotiation) is a question of when, not if." Although FFII.org agrees the patent industry will push hard to get the UPC implemented, it notes there are yet more bumps in that particular road:
the German Constitutional Court still have to decide soon over 4 other complaints, where complainants have raised the issue that the European Patent Office (EPO) cannot be brought to court for maladministration, in breach of the "rule of law" principle. If the court finds the EPO not in line with fundamental rights, this might have a bigger impact over the current system.
This point relates to the central role that will be played by the EPO in issuing the new unitary patents, valid across the EU. The EPO has long been a controversial institution: it is not part of the EU, its premises enjoy extraterritoriality, and its executives are granted diplomatic immunity that effectively places them outside the law. If allegations of maladministration cannot be brought to EU courts, that seems like a recipe for disaster. Irrespective of those particular questions, The Register article raises a more fundamental one: is it really worth bothering with a plan that was born decades ago? Both the unitary patent and UPC reflect a very different world from the one we now inhabit, which no longer regards more powerful patents as an obvious blessing.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.
For a few years now, US telecom mono/duopolies like Comcast and AT&T have been trying to claim that absolutely any government attempt to hold them accountable violates their First Amendment rights. When their lobbyists were pushing to kill FCC net neutrality rules (and FCC oversight of telecom in general), they repeatedly tried to claim the rules violated their right to free speech, despite the fact that as simple conduits they don't engage in "editorial" decisions, making the argument both flimsy and silly.That hasn't stopped them from aggressively abusing the 1A argument constantly to see if it sticks anyway. Verizon has argued it has a First Amendment right to hand your call data over to the government. Comcast has argued its First Amendment rights were violated when it was told to stop blocking competing channels' access to its cable lineup. Charter has tried to argue that requiring it adhere to local video franchise agreements (it signed) similarly violates its free speech rights. Inversely, the industry-friendly FCC has falsely claimed community-owned and operated broadband ISPs pose a dire threat to free speech.And as companies try to scuttle efforts to finally pass some kind of US privacy law for the internet era, this argument has popped up yet again. As you might recall, the telecom lobby convinced the GOP-held Senate to kill off some modest federal FCC privacy guidelines back in 2017. In response, much as we've seen with the net neutrality fight, numerous states have responded by trying to fill the void with an inconsistent platter of state-level privacy guidelines.After effectively creating this problem telecom lobbyists have whined endlessly about these state laws clinging once again to the argument that it somehow violates their First Amendment right to free speech. Hoan Ton-That, the CEO of Clearview AI, has similarly been trying to claim that his company has the First Amendment right to scrape user photos from social media platforms.Given the shaky nature of the US court system when it comes to ignoring hard logic and data (Exhibit A: both the T-Mobile Sprint and AT&T Time Warner merger approvals) it's not impossible that some courts will help prop up these shaky, self-serving arguments. But Colorado Law's Margot Kaminski and Scott Thompson at Slate have a good primer on how they probably won't:
"We are cautiously optimistic that courts won't fall for the simplistic arguments offered by companies trying to fend off new privacy laws, in part because the Supreme Court has recently expanded its understanding of privacy harms. Companies often ignore that the above cases do empower governments to enact privacy laws when they have an interest of the highest order in doing sothat is, when they can articulate significant privacy harms.Of late, the Supreme Court has recognized exactly the kinds of harms implicated by large-scale, ongoing surveillance enabled by technologies such as facial recognition, even when the surveillance is of public space. Such surveillance, the court acknowledged, reveals traditionally sensitive information such as your health (if you are recorded regularly visiting a doctor), your political affiliations (if you are tracked to a protest), your addictions (if you are tracked to an Alcoholics Anonymous meeting), and even your sexuality (if you are tracked to a gay bar). Additionally, surveillance over time reveals patterns in your behavior, sensitive inferences that you may not knowingly reveal at all."
Their central argument is that regulations aimed at protecting basic privacy rights are often necessary to safeguard First Amendment rights. As a result, efforts to scuttle state-level privacy efforts in states like Maine may not go all that well, given that ISPs ignore that privacy in one's communications is central to free expression and free association:
"There is a not insignificant chance that courts will consider most of the wave of new privacy laws (such as Maine's) to be regulation of bargains struck between consumers and companies, not regulations of speech....As we've each underscored in our research reconciling the right to privacy with the First Amendment, the two are often interdependent. Where privacy regulations advance First Amendment interests, they are on stronger legal ground against First Amendment challenges.
Keep in mind, the privacy, hacking, and security scandals we've seen to date -- even the extraordinarily dumb ones like Equifax or Cambridge Analytica -- are probably a faint echo of the privacy scandals to come. Especially if we continue down the same path of feckless regulators, flimsy antitrust enforcement and consumer protection, and a refusal to even embrace some very basic privacy and security guidelines for the internet era. As such, as even dumber scandals arise, the arguments cited above are likely to become more potent.
It's not often you see a court actually call a police officer a liar, but it happened in this case [PDF], via FourthAmendment.com. While investigating a murder, Puerto Rico PD Homicide Division Agent Pedro Medina-Negron performed a sweep of the house to ensure there were no more victims or dangerous perpetrators inside.While performing his sweep of the scene, Agent Medina claimed to have seen several things in plain view:
He described seeing raw rice on the floor, a gun magazine on top of the dresser, a large amount of cash in a gray bag on the floor, and bags of rubber bands, boxes of ziplock bags, and empty instant coffee packets on the bed. He also described finding a large quantity of rice in plain view in the kitchen trashcan. Agent Medina explained that rice and coffee are often used to conceal the smell of drugs and that the size of the coffee packets he observed—approximately one pound bags—matched his professional experience with the size of coffee bags used in drug trafficking. He also noted that, in his experience, ziplock bags, rubber bands, firearms, and cash are associated with drug trafficking. He confirmed with defendants that they did not have gun permits.
Building from his supposed "plain view" observations, Agent Medina called in a drug dog to perform a search of the room. It alerted on a suitcase in the closet and officers discovered two guns in the closet after moving clothing to get to the suitcase. Medina then applied for a search warrant to search the home and open the suitcase, establishing probable cause with all the stuff he claimed he saw in plain sight when he performed the sweep. Eight hours after his first "observations," Medina obtained a search warrant. This search turned up a large quantity of drugs and cash.The search was challenged by the defendants, who were pretty sure everything Medina claimed to have seen in plain sight wasn't actually out in the open. Utilizing the metadata from the ~600 photos the PD's forensic team took of the house during their murder investigation, the defendants exposed Agent Medina for the liar he is.This is only one of Medina's many lies, undercut by the forensic team's photos of the crime scene.
Although Agent Medina asserted in his sworn statement and evidentiary hearing testimony that he saw the grey bag of cash in plain view, he later testified to the opposite. He stated on crossexamination that he did not see the grey bag during his protective sweep. Rather, Agent Medina testified that the forensics officers alerted him to the bag while they were “working the room,” a phrase he clarified meant “searching.” According to a 4:54 p.m. photograph, officers found the bag on the bedroom floor, wedged between the wall and a large armchair and obscured by a floorlength curtain. The bag appears to be a small, nylon, reusable grocery tote. In a photograph taken at 5:29 p.m., the armchair had been pushed away from the wall, better revealing the gray bag, which was tied shut. Its contents were concealed. By 5:37 p.m., investigators had moved the gray bag onto a countertop and placed a yellow evidence tag next to it. The bag is still closed in that photo, but the photograph taken one minute later shows the bag open. Inside the bag is a roll of cash and what appears to be a brown paper bag containing a rectangular object. Agent Medina confirmed that he had to open the bag to ascertain its contents and he admitted that he opened the bag before obtaining a search warrant. Evidence on record shows that all cash had been seized, counted, displayed and a picture taken by 7:31 p.m.; hours prior to the request and issuance of the search warrant.
Photographs further proved Medina was lying about the gun magazine he claimed to have seen in plain sight, along with the coffee bags and rice he said he saw out in the open. Here's the court being a bit more polite about Medina's inability to tell the truth.
Agent Medina’s testimony about the items found in the locked bedroom is rather remarkable. He admitted he did not see the grey bag in his safety sweep and that its incriminating contents were also not in plain view. He testified that forensics found the bag around 4:54 p.m. while “searching” the locked room. And he affirmed that he opened the bag before obtaining the search warrant, so he could rely on its contents in support of his warrant application. He swore in the search warrant application that he observed a “large sum of money,” which is clearly refuted by the photographs and now by his testimony on crossexamination.
Every search performed by Puerto Rican law enforcement officers at the scene was tainted.
According to Agent Médina, the entire house was clear when he found the gun magazine on the dresser, coffee on the bed, and the grey bag of money behind the chair. The metadata on the photographs indicate that the government’s search occurred several hours after Agent Medina arrived on the scene, after the home was secured, took several hours, and was not limited to places where a person may be hiding, such as, e.g., inside a small reusable bag.[...]The government offers no other justification for the warrantless search of the bedroom and the Court finds none. The government’s rummaging in the locked bedroom, moving furniture, clothing, blankets, and draperies and opening cabinets and drawers, violated the defendants’ Fourth Amendment rights.
The court adds this rebuke to the Puerto Rican PD's assertions, as well as to any others who believe all Constitutional bets are off if the crime is severe enough:
The Supreme Court has definitively rejected this argument, holding that there is no “murder scene exception” to the Fourth Amendment.
After blasting the PD as a whole, the court focuses again on Agent Medina. This is one of the most thorough benchslappings I've read, one that says the court thinks Medina is a habitual liar who should not be allowed to wear a badge.
[T]he Court admonishes Agent Medina’s flagrant dishonesty before this Court and the court issuing the search warrant. Indeed, the Court considers his behavior sufficiently egregious to warrant a perjury and/or obstruction of justice investigation. The Court has no means to determine if this is the first time that Agent Medina lied to this Court. However, as it relates to this case, he blatantly lied to the state judiciary while submitting a sworn statement with firsthand information he clearly knew to be false. Secondly, he appeared in federal court and after taking an oath to testify truthfully, he once again testified falsely. Agent Medina’s behavior and testimony may be suggestive of a routinary practice as a law enforcement officer to lie under oath and mischaracterize evidence to serve his investigatory purposes. If so, Agent Medina’s disregard of constitutional rights and basic rules of criminal procedure and investigation, poses a threat to individual’s rights and to the community he purports to serve and needs to be addressed and investigated.
Everything Medina claimed to have seen with his own eyes out in the open is suppressed. So is everything else discovered during the warrantless searches of the house and the minimal amount of rummaging that occurred after the warrant finally showed up eight hours after Medina did. All the drugs. All the guns. Everything. And all because one officer, who was already on a murder scene, lied about his "plain view" discoveries to fraudulently obtain a warrant.
If you haven't heard of the Playstation 4 title Dreams, it's a fairly fascinating little game. The entire concept of the game revolves around creating. Art, music, game mechanics, and even entire new games are all able to be created within Dreams itself. As you might imagine, while players have spent much time creating brand new content within the platform, others have also reproduced existing video game content within it as well. This is a matter of tinkering, mostly, and reproducing known content just to see what the Dreams system can do.And, because it's video games, one of the most common reproductions in Dreams are models of Mario from Super Mario Bros. Nintendo, however, recently got Sony to remove one popular Mario character model from the game over copyright concerns.
One of the most popular and downloaded Mario character models in the PS4 game Dreams has been removed after Sony received a complaint from Nintendo.As reported by Eurogamer, a Dreams creator by the name of PieceofCraft, who made the popular Mario model, recently Tweeted the news that Sony had pulled their Mario from the game. When fans asked why, PieceofCraft explained that in an email they received from Sony, it mentioned that Nintendo had claimed a copyright strike on the model.
Now, Nintendo is within its rights to do this if it chooses. But why? If nothing else, it's something of a massive victory and worth some bragging rights for Nintendo to be able to say something like: nice game you have there Sony, but how come gamers just want to use it to play Nintendo characters? It seems unlikely that a fan-made character model of the most popular figure in all of video games in Dreams was somehow a major threat to Nintendo.But the company just can't seem to help itself. When it comes to being fun versus exerting control, Nintendo chooses control every time. Except with a game like Dreams, where the entire point is for everyone to make use of the collective content, attempts at control come off as inconsistent at best.
PieceofCraft and others aren’t sure what will happen to any current creations that feature the now removed model. It seems like, at least for the time being, popular Dream games like “Super Mario 64 HD” are still active and playable, even though they contain the now removed model.
So why is Nintendo doing this now? Some are speculating that it has to do with forthcoming plans for Dreams creators to be able to sell their work. Nintendo probably wouldn't want 3rd parties selling Mario character models. Still, that hasn't become a reality as of yet.So why is Nintendo doing this? Because it's Nintendo.
This is it: the last in our series of posts focusing on each winner from our public domain game jam, Gaming Like It's 1924! So far, we've featured Hot Water, Legends of Charlemagne, 192X, The Hounds Follow All Things Down, and You Are The Rats In The Walls, and now it's time to wrap things up with the winner of Best Analog Game and a game that, perhaps most out of all the entries, is completely suffused with a spirit of remixing and mining the public domain: The 24th Kandinsky by David Harris.This game was one of the first to draw our attention as the entries were coming in, just based on its premise: players are tasked with using visual elements from the 23 paintings that famed Russian abstract artist Wassily Kandinsky created in 1924 to create a brand new work — a "24th Kandinsky". This is a game about not just admiring art but digging into it and picking apart its components, and all that's required to play is a blank canvas, some paper and drawing implements, a pair of scissors, and some sticky tack or tape. On each of their turns, a player selects an element from one of Kandinsky's newly-public-domain works — choosing from all the geometric shapes, swooping curves, checkered grids, intersecting lines and other abstract forms that are the hallmark of his work — and draws a replica of it, which they then cut out and affix to the canvas wherever they choose. They can overlap and underlap other elements as the new work grows, and at the end of each round all players vote to determine who made the best contribution, leaving their element in place while the others from the round are removed. Turn by turn the work grows more elaborate, until time runs out or players agree to stop, at which point the player who won the most voting rounds gets to keep the completed work.
There is just so much to love about this idea and its execution. It manages to celebrate just about everything that we hope to highlight with these game jams: the value of new works entering the public domain, the incredible creative power of remixing and appropriation, the joy of artistic collaboration and spontaneous creativity, and the way games can be an ideal medium for all these things — for both game designers and players. Mechanically speaking, it does this with elegance: the rules are loose and simple, but carefully combine cooperative and competitive gameplay to achieve a balance of incentives that produces just the right mood for a game like this. It also serves as a foundation for people to create their own variants of the game: one can easily envision it being adapted to use different source material, more elaborate art supplies, and even modified rules to create different overall rhythms of play. And with every play session, a new piece of art is created, and that's a special thing for a game to achieve.You can download the rules and materials for The 24th Kandinsky on Itch, or check out the other submissions in our public domain game jam.And with that, we've reached the end of our game jam winner spotlight series! One more time, thanks to everyone who submitted a game or played the entries, and to our amazing panel of judges. We'll be back next year with a game jam for works from 1925, but until then, keep on mining that public domain!
With the Coronavirus grinding everything to a halt (except for stock market losses! [sobs in 401(k)]), it's understandable that public services would be affected as well. The unexpected shift to telecommuting means everything is going to slow down as public and private entities figure out how to still serve customers/citizens while still keeping the spread of the virus to a minimum.But none of that explains this completely incomprehensible response from the FBI, which appears to be using the virus as a way to become even more tight-fisted with its stash of FOIA-able files. "FOIA terrorist" Jason Leopold reports the FBI is seeking to serve the public in the worst way possible during this national health crisis.
A message posted on the FBI's Freedom of Information Act website Tuesday says:"Due to the emerging COVID-19 situation, the FBI is not accepting electronic Freedom of Information/Privacy Act requests or sending out electronic responses through the eFOIPA portal at this time. You may still submit a FOIPA request via standard mail. We apologize for this inconvenience and appreciate your understanding."
Left unexplained by the agency is how sending out snail mail -- which could conceivably carry a bit of COVID with it -- is preferable to email requests, which can only infect others if they insist on opening sketchy attachments.This is also against the law, unless the administration decides it's going to suspend FOIA law until the it's declared safe to act sane again. The regulations governing FOIA responses say all federal agencies must have the capability to "receive requests electronically" either via email or their FOIA portals. It appears the FBI has simply chosen to ignore its online portal and its capability to receive emailed requests.Even if lower staffing levels might result in slower responses, the agency's virus response shouldn't be to switch off the online portal and direct everyone to another government service that itself might be negatively affected by the virus in the near future.But there's more to it than this inexplicable explanation for shutting down the internet-friendly side of its FOIA services. Those bothering to send snail mail shouldn't expect responses, either.
Katie Townsend, the legal director for the Reporters Committee for the Freedom of the Press, told BuzzFeed News that in a FOIA case she is litigating, an assistant US attorney filed court papers Tuesday saying the office that handles the FBI's FOIA requests is "closed at least until March 30, 2020 because of the current coronavirus outbreak."
This has been confirmed by other attorneys involved in FOIA litigation with the FBI. The regulation-dodging statement on the FBI's website doesn't inform requesters that the FBI won't be touching any requests for the rest of the month. The FBI -- through its lawyers -- insists this all very logical because FOIA response personnel can't work from home due to security issues. Even if so, encouraging people to climb into an FOIA time machine to take them back before the internet was a thing isn't helping anyone but an agency that would rather not answer FOIA requests at all.
The First Circuit Court of Appeals has confirmed what we've already assumed: the "community caretaking" function law enforcement performs is there to help it dodge the Constitution, not to ensure it actually takes care of the community. Citing Simpsons' episode BABF18*, Judge Selya (trigger warning: overwrought English) says nothing about the community caretaking function prevents officers from harming you. But it does not mean officers ever need to help you.*Judge Selya does not actually cite this, but let's just take a look at what these decisions actually mean:
The Supreme Court has made it clear -- repeatedly -- that officers are under no obligation to "serve and protect," with emphasis on the latter. You're on your own as a citizen when it comes to harm being inflicted on you. Cops are here to file reports and investigate the tragic aftermath of the harm inflicted on you. They are under no obligation to protect you against violence, even if you've repeatedly informed them someone means to do you harm.But cops suddenly become inspired and proactive members of the community when it comes to the community caretaking exception, which allows them to perform searches and seizures without a warrant. In the interest of protecting the community, cops will tow your car and perform a pretextual search. But they'll also go into your house and there's nothing in the Fourth Amendment that can prevent that, apparently.Selya opens the First Circuit's opinion [PDF] by painting a rosy picture of cops as local heroes who would never abuse rights to achieve their own ends.
There are widely varied circumstances, ranging from helping little children to cross busy streets to navigating the sometimes stormy seas of neighborhood disturbances, in which police officers demonstrate, over and over again, the importance of the roles that they play in preserving and protecting communities.
Selya's first egregious abuse of readable English starts on the next sentence, where he asserts without facts in evidence that this Norman Rockwell-esque picture he's painted is based on fact:
Given this reality, it is unsurprising that in Cady v. Dombrowski, 413 U.S. 433 (1973), the Supreme Court determined, in the motor vehicle context, that police officers performing community caretaking functions are entitled to a special measure of constitutional protection. See id. at 446-48 (holding that warrantless search of disabled vehicle's trunk to preserve public safety did not violate Fourth Amendment).
And with that, the court decides the exception that has swallowed the rule for cars is perfectly capable of swallowing homes.
We hold today — as a matter of first impression in this circuit — that this measure of protection extends to police officers performing community caretaking functions on private premises (including homes). Based on this holding and on our other conclusions, we affirm the district court's entry of summary judgment for the defendants in this highly charged case.
This case involves a domestic dispute that may or may not have involved a gun and threats. After this dispute had dissipated, the victim called the police the next morning, concerned that her husband might now be suicidal and was in possession of a (possibly unloaded) gun. The spouse made it clear she was worried about the harm he might do to himself and that she was not actually afraid he might come after her. It's unclear what was said about the magazine of ammo, which might not even have been on the suspect, who had left the house with an otherwise unloaded handgun.The cops got ahold of the man, who confirmed his wife's narrative: he had asked his wife to shoot him because he was "sick of the arguments." The cops decided this meant he was a threat to himself and others, and went looking for him.Using this information, the officers decided to start seizing weapons from the home, even though the husband had voluntarily checked into a local hospital.
At some point that morning, someone (the record is unclear as to whether the "someone" was Kim or the plaintiff) informed the officers that there was a second handgun on the premises. After the plaintiff departed by ambulance for the hospital, unaccompanied by any police officer, Sergeant Barth decided to seize these two firearms. A superior officer (Captain Henry) approved that decision by telephone. Accompanied by Kim, one or more of the officers entered the house and garage, seizing the two firearms, magazines for both guns, and ammunition. Kim directed the officers to each of the items seized. The parties dispute both whether Kim indicated that she wanted the guns removed and whether the officers secured her cooperation by telling her that her husband had consented to confiscation of the firearms. There is no dispute, though, that the officers understood that the firearms belonged to the plaintiff and that he objected to their seizure.
After he was cleared by the hospital, the man asked the cops to give him his guns back. They refused, holding onto them for two more months until his lawyer intervened. No criminal investigation was ever initiated. The man sued… and the First Circuit has told him there's nothing he can sue about.Since it's Selya writing the opinion, we're forced to sit through phrases like "asservational array" and "salmagundi of claims" before reaching the conclusion. And the conclusion is this: "We care a lot" as it applies to officers means cops can go into your house and take your guns even if it's an open question as to whether you pose a threat to anyone and have committed no crime they feel is worth investigating.The court even points out this search and seizure was anything but consensual:
It is uncontroverted that the defendant officers understood that the two handguns belonged to the plaintiff and that he objected to any confiscation of them. And in this venue, the defendants press no argument that they secured valid consent from the plaintiff's wife to seize the firearms.
So, here's what we, the people in the First Circuit, end up with:
We conclude that the officers could reasonably have believed, based on the facts known to them at the time, that leaving the guns in the plaintiff's home, accessible to him, posed a serious threat of immediate harm.
And, since no officer accompanied the "suspect" to the hospital for diagnosis/observation (even after officers made it clear they would do it for him if he didn't choose to do it himself), they were perhaps deliberately unaware of the man's current mental state and his threat level.
On this record, an objectively reasonable officer remaining at the residence after the plaintiff's departure could have perceived a real possibility that the plaintiff might refuse an evaluation and shortly return home in the same troubled mental state. Such uncertainty, we think, could have led a reasonable officer to continue to regard the danger of leaving firearms in the plaintiff's home as immediate and, accordingly, to err on the side of caution.
And so this most hallowed place -- the starting point for Fourth Amendment protections -- the home/castle is just another place officers can intrude upon without a warrant if they feel ways about stuff.
We need go no further. Police officers play an important role as community caretakers. As this case illustrates, they sometimes are confronted with peculiar circumstances — circumstances that present them with difficult choices. Here, the actions of the defendant officers, though not letter perfect, did not exceed the proper province of their community caretaking responsibilities. The able district court recognized as much and, for the reasons elucidated above, its judgment is affirmed.
While there were some justifiable concerns about the man, he voluntarily admitted himself to a hospital and the officers had several hours between the initial call and the follow-up (in which the wife expressed concern the man would harm himself rather than her) in which to develop some probable cause for a search and seizure. They proceeded without a warrant and consent, and held onto the man's property for two months without ever bringing criminal charges. The community caretaking exception has made a mockery of the Fourth Amendment -- especially when it comes to vehicles -- but this decision allows the exception to cross the threshold of homes in the circuit, giving officers ample opportunity to perform warrantless fishing expeditions as long as they can claim they were worried about something.
There's a growing list of things that the COVID-19 crisis has exposed as unnecessary nonsense. Broadband usage caps come first to mind, followed quickly by a lingering disdain for telecommuting by a long list of executives. But the outbreak is also shining a light on another dumb practice that has long been a point of contention: Hollywood movie release windows.For the better part of a decade now, we've highlighted Hollywood's often vicious opposition to disrupting the traditional delay between a film's theatrical debut, and its release on home video or streaming platforms. Companies like Netflix that have attempted to disrupt this system have traditionally been quickly demonized by the industry. AMC, Regal and Cinemark have all fought tooth and nail to preserve the (usually) 90 day restriction period between a film's theater release and its availability to home consumers, even if such restrictions no longer make much sense in the broadband era.Movie patrons, like most other sensible people, are now practicing social distancing in a bid to slow COVID-19's expansion and ease the looming strain on already maxed out US healthcare systems. In some locations (like here in Seattle), movie theaters are being told to close their doors entirely. In the process, Hollywood is having to suddenly and quickly rethink its longstanding dedication to a release window model that already made no sense in the modern world, and makes even less sense in the wake of a pandemic quarantine.Disney, for example, is now considering moving big releases more quickly to its Disney+ streaming video platform:
"A senior Disney executive, speaking on the condition of anonymity because he was not authorized to speak to a reporter, said that rerouting Mulan to the company's Disney Plus streaming service was not currently under discussion, in part because of piracy concerns. (Disney Plus is not yet available outside the United States.) Even so, Disney is clearly mindful of the power of its video platform. The company brought Frozen II to Disney Plus on Sunday three months earlier than planned. (The musical was released in theaters on Nov. 22.) Disney described that move as surprising families with some fun and joy during this challenging period."
"Comcast Corp.'s Universal Pictures said it is making its movies available to watch at home while they are still in theaters, a massive change from Hollywood's long-established business model that could upend the industry if other studios follow suit.The decision comes amid widespread closures of movie theaters as the global coronavirus pandemic spreads. Authorities in New York City and Los Angeles on Sunday ordered all movie theaters to close; exhibitors had previously said they would limit attendance in theaters to 50% of their capacity. China, the world's second-largest market, has kept tens of thousands of theaters closed since late January."
To be very clear, there will be significant financial hardship for everybody, including brick and mortar theaters, in the months to come. Everybody whose livelihood depends on brick and mortar establishments will need sympathy and every shred of assistance they can get. At the same time, it's still interesting to watch COVID-19 so quickly dissolve resistance to artificial constructs whose usefulness expired decades ago, but have been propped up by flimsy arguments for just as long. And had the industry been less stubbornly resistant to adaptation and change, this particular shift likely wouldn't be quite as painful now.
Right-to-repair laws are still a work in progress, mainly due to industry opposition. The wants and needs of millions of device/vehicle owners don't amount to a hill of beans in this world full of interloping industry leaders, as noted DIY repairman/nightclub owner Rick Blaine once sourly noted.Allowing people to actually own the things they've purchased seems like a foreign concept to US tech leaders, even though that was the status quo long before goods went digital and the DMCA was enacted. Why should people be at the mercy of those whose profits depend on walled gardens, closed loops, and well-funded lawyers issuing cease-and-desist orders at the drop of a proprietary screwdriver? Well, as someone else sourly noted, those with the gold make the rules.While we struggle through with some piecemeal replacements for our assumed rights of ownership here in the US, it appears the European Union is going to get serious about handing customers back their purloined rights. As the New York Times reports, a right-to-repair is up for discussion -- not so much because of the impact on customers, but because of the impact on the environment.
The “right to repair,” part of a wide-ranging policy package known as the Green Deal that was introduced this month, is the latest example of the European Union’s ambitions to promote more sustainable economic growth and to prevent waste. It extends standards brought in last year that put “right to repair” obligations on the manufacturers of some large appliances.“The linear growth model of ‘take-make-use-discard’ has reached its limits,” Virginijus Sinkevicius, the union’s environment commissioner, told reporters in Brussels as he presented the “Circular Economy Action Plan,” which includes the “right to repair” initiative.“We want to make sure that products placed on E.U. market are designed to last longer, to be easier to repair and upgrade, easier to recycle and easier to reuse,” he added.
Obviously, providing people with a right-to-repair (and the information to make those repairs) will help curb the amount of dangerous chemicals and minerals being dumped into the ecosystem. Planned obsolescence has been the status quo for years, with repair prices and restrictions making it far easier to replace items than repair them. This has added up to serious environmental damage. It has also added to problems around the world where rare minerals are mined under the direction of governments who use their profits to finance war, rape, and numerous other atrocities.But it will also give people back something they've historically enjoyed: the ability to tinker with and repair their purchased products without being locked out by proprietary tools and methods that are shared with only certain gatekeepers to ensure steady purchases of new products and the speedy destruction of anything slightly out-of-date.Here's how the EU's proposal [PDF] puts it [all emphasis in the original]:
Empowering consumers and providing them with cost-saving opportunities is a key building block of the sustainable product policy framework. To enhance the participation of consumers in the circular economy, the Commission will propose a revision of EU consumer law to ensure that consumers receive trustworthy and relevant information on products at the point of sale, including on their lifespan and on the availability of repair services, spare parts and repair manuals. The Commission will also consider further strengthening consumer protection against green washing and premature obsolescence, setting minimum requirements for sustainability labels/logos and for information tools.In addition, the Commission will work towards establishing a new ‘right to repair’ and consider new horizontal material rights for consumers for instance as regards availability of spare parts or access to repair and, in the case of ICT and electronics, to upgrading services. Regarding the role that guarantees can play in providing more circular products, the Commission will explore possible changes also in the context of the review of Directive 2019/771.
This would be a step up from the EU's aggressive recycling requirements, which demands companies selling electronics recycle at least 65% of the total weight of goods sold (i.e., recycling 65 tons for every 100 tons of goods put on sale). As it stands now, zero companies have met that requirement, which has been in place since 2012.This would hand power back to consumers. It won't make it easier for companies to hit recycling targets, but it may alter the market for new goods, making it more financially feasible for device makers to slow the rollout of new products and extend the life of those already on the market.If enacted, it will drastically change the way electronics manufacturers do business in Europe. It may see some drop out of the market completely. But expect a lot of opposition from the companies affected as this legislative proposal moves forward. If there's one thing companies like Apple and Microsoft can agree on, it's that customers shouldn't be allowed to cut them out of the repair/modification/replacement chain.
As we've been discussing for a while, India's government has blacked out internet access in Kashmir since around August, setting records for one of the longest government-mandated internet blackouts in history. India's Prime Minister Narendra Modi has tried to argue that the blackout is a necessary security precaution in the face of growing unrest in the region stemming from its loss of autonomy earlier this year. Granted, like most government internet censorship efforts, the move has a lot more to do with cowardice and fear of an informed public than any genuine concern about public welfare.Despite the Indian Supreme Court declaring such restrictions illegal last January, the problem persists. And as a pandemic threatens the planet, these restrictions are making it hard for the residents of Kashmir to access essential medical information on COVID-19:
Kashmir is still struggling with 2G internet Speed amid #COVID19 threat. Fascist regieme is not restoring high speed internet in such crisis time when people need free flowing information regarding the epidemic. 8 million lives has been put on risk.#Restore4GinKashmir— Aarif Shah (@aarifshaah) March 17, 2020
Worse, the government, just this week, actually expanded the existing restrictions until March 26, insisting they were necessary to "prevent misuse of social media applications" in the wake of "recent terror activities":
One local tells Buzzfeed the ham-fisted, counterproductive restrictions have made it difficult if not impossible for locals to access information on the rapid spread of COVID-19:
"I can't open even basic websites that provide information and advice about the pandemic, Nayeem Rather, a freelance writer based in Srinagar, the largest city in the state of Jammu and Kashmir, told BuzzFeed News. Most people in Kashmir don't really have any information about the coronavirus or what is going on in the world right now. It's a crisis."Mir Moien, a medical student from Kupwara, a small town in northern Kashmir, said that the most he's able to do right now is a Google search to find out information about the pandemic. But I can't actually click on any search results to read more, Moien said. On WhatsApp, the Facebook-owned instant messaging app that most Indians use to communicate, most information about the pandemic comes through charts and videos that are impossible to download over the slowed-down 4G networks, according to Moien. It's a catastrophe, he said.
Some authorities have been uploading video alerts to Twitter, but because of the restrictions, most locals can't see them. As a result they're being forced to get all of their information from local news outlets that seem largely interested in artificially inflating the accomplishments of regional politicians. In turn, rumors and dis/misinformation are spreading quickly via Whatsapp and word of mouth, with no ability for citizens to research and confirm the claims. As a result, the local population there doesn't understand the scope of the pandemic threat, and many lack access to information that could protect the region from harm.Governments that engage in such heavy-handed internet censorship and filtering may feel like they're in control, but this is yet another example of how such ham-fisted restrictions actively undermine society as a whole.
Techdirt writes about freedom of information matters often enough. Sadly, many of the stories are about governments and other official bodies refusing to comply with local Freedom of Information Act (FOIA) laws for various reasons, and using a variety of tricks. In other words, rights to FOI may exist in theory, but the practice falls woefully short. That makes the following story from the UK a welcome exception.It concerns Nicola Young, a local government employee in the English market town of Whitchurch, in Shropshire. Part of her job as town clerk was to handle FOIA requests for the local council. One such request asked for a copy of the audio recording of a council meeting. Apparently the person requesting the file believed that the written minutes of the meeting had been fabricated, and wanted to check them against the recording. However, the reply came back that the file had already been deleted, as was required by the official council policy.Undeterred, the person requesting the file sent a complaint to the UK's main Information Commissioner's Office (ICO), which carried out an investigation. The ICO discovered that the town clerk had not only claimed that the audio file had already been deleted when it actually existed, but that she personally deleted it a few days after the FOI request was made. Quite why is not clear, but as a result:
On Wednesday 11 March, Young, of Shrewsbury Street, Whitchurch, Shropshire, was convicted at Crewe Magistrates after pleading guilty to blocking records with the intention of preventing disclosure and was fined 400 [about $490], ordered to pay costs of 1,493 [$1,835] and a victim surcharge 40 [$50].
There has been some absolutely ridiculous sniping between the Chinese government and the US government over "blame" for Covid-19. For idiotic reasons, President Trump and his sycophantic followers started referring to Covid-19 as "The Chinese Virus," a racist term that hints at putting blame on Chinese people for the virus or even implying that those of Chinese ancestry are more risky than others. The administration also stupidly limited the number of Chinese staffers allowed at the US bureaus of Chinese news organizations, partly in response to China expelling three Wall Street Journal reporters over a headline it didn't like.The Chinese government responded in an even more idiotic manner, trying to blame Americans for the disease.
China's state media have been equally involved in spreading skepticism of the virus's origin. Official Communist Party publication Xinhua has published several articles questioning COVID-19's provenance, and the state-run Global Times wrote, As the U.S. COVID-19 situation becomes increasingly obscure, the Chinese public shares the suspicion raised by Zhao Lijian that the U.S. might be the source of the virus and that the U.S. is subject [to] questioning and is obliged to explain [its role to] the world.
And the latest move is that China has now expelled American journalists working for the three big US newspapers: The NY Times, The Washington Post and The Wall Street Journal. No matter what you think of the journalism done by any of these news organizations, and no matter what you think of the way either the US or Chinese governments have been handling the crisis, this is very, very bad.We're at a point right now where it is more important than ever that there be open information and open communication about what is happening around the globe regarding Covid-19, and making sure that everyone has as accurate information as possible. Expelling journalists from either China or the US is extraordinarily short sighted and dangerous at this moment. The Chinese and American governments should set aside their petty spats for now. They can always pick it up back later when the world is not in so much peril (though, frankly, we'd be a lot better off if we stopped with all the pettiness between countries).
Just another reminder the Drug Enforcement Agency doesn't care all that much about drugs and/or enforcement. If there's money to be made, the DEA is all in. If it can score easy wins by engaging in entrapment, it will. But the drugs will flow and the damage will be done. And the DEA will be there to hoover up the cash… even when the cash has nothing to do with drugs.The DEA stole another person's life savings back in 2015. A raid of house predicated on the theory Miladis Salgado's husband was involved in drug dealing ended with the DEA walking off with $15,000 Salgado had saved for her daughter's quinceanera. This was money Salgado had saved while working at a duty-free shop in the Miami airport, along with gifts from friends and relatives.And it all was gone after the DEA raided her house. The good news is Salgado eventually got her money back. But it took time and it took a lawyer. In the end, the DEA admitted it had no evidence tying her husband to drug trafficking.
It would take two years for Salgado to recover her money from the DEA, which did not arrest her husband because agents discovered he had not been selling drugs after all. The lead DEA agent admitted in a court deposition that there was no evidence supporting the allegation.
If you sue (which means being able to pay a lawyer), sometimes (and only sometimes) you can get your money back. But that's not the end of the story. The DEA handed the money back to Salgado before a judge could rule on the merits of the case. The agency did this to ensure it didn't have to compensate Salgado for fighting to get her money back.
Before a critical ruling in the civil forfeiture dispute with Salgado, Justice Department lawyers on their own decided to return her money. But at the same time, they argued that Salgado had not really won because a judge granted the feds the right to refile their civil case in the future — even though they probably had no intention of doing so. As a result, the government argued it did not have to pay her attorney’s fees, which she said amounted to $5,000.
Unfortunately, the judge agreed with the government's arguments. It was clear the government had no intention of trying again at the state level. It had only given the money back to avoid a ruling against it that would have made it liable under CAFRA for her legal fees. The court somehow came to the conclusion that the last-minute release (after more than two years of litigation) of the seized money wasn't a bad faith maneuver by the DEA to dodge paying more than it had taken in.Salgado's case is now in front of the Supreme Court, which is expected to rule on her appeal in April. Hopefully, the court will align itself with citizens who've had money taken from them under the pretense that it's been illegally obtained -- all without a single criminal charge being brought against them. A North Carolina federal court wouldn't let the IRS duck fees in a forfeiture case where the government dropped the case after the victim fought back. Neither should the Supreme Court. Allowing government agencies to use the costs of litigation to deter people from recovering property the government admits (via dismissal, etc.) did not come from illegal sources makes it that much easier for the government to stay in the legalized theft business.
Honestly, I wasn't sure how to begin this story or how to fit all the insanity into the title. It's a story involving patents, patent trolling, Covid-19, Theranos, and even the company that brought us all WeWork: SoftBank. Oh, and also Irell & Manella, the same law firm that once claimed it could represent a monkey in a copyright infringement dispute. You see, Irell & Manella has now filed one of the most utterly bullshit patent infringement lawsuits you'll ever see. They are representing "Labrador Diagnostics LLC" a patent troll which does not seem to exist other than to file this lawsuit, and which claims to hold the rights to two patents (US Patents 8,283,155 and 10,533,994) which, you'll note, were originally granted to Elizabeth Holmes and Theranos -- the firm that shut down in scandal over medical testing equipment that appears to have been oversold and never actually worked. Holmes is still facing federal charges of wire fraud over the whole Theranos debacle.However, back in 2018, the remains of Theranos sold its patents to Fortress Investment Group. Fortress Investment Group is a SoftBank-funded massive patent troll. You may remember the name from the time last fall when Apple and Intel sued the firm, laying out how Fortress is a sort of uber-patent troll, gathering up a bunch of patents and then shaking down basically everyone. Lovely, right?So, this SoftBank-owned patent troll, Fortress, bought up Theranos patents, and then set up this shell company, "Labrador Diagnostics," which decided that right in the midst of the Covid-19 pandemic it was going to sue one of the companies making Covid-19 tests, saying that its test violates those Theranos patents, and literally demanding that the court bar the firm from making those Covid-19 tests.A bit more background here: the company they're suing, BioFire, recently launched three Covid-19 tests built off of the company's FilmArray technology. And that's what "Labrador" (read: SoftBank) is now suing over. From the lawsuit:
The Accused Products embody at least claim 1 of the '155 Patent, literally or underthe doctrine of equivalents, as set forth below. The further descriptions below, which are based onpublicly available information, are preliminary examples and are non-limiting. On information andbelief, the FilmArray 2.0, FilmArray EZ, and FilmArray Torch devices operate, together with theFilmArray pouches and software, similarly as pertinent to the non-limiting examples set forthbelow. On information and belief, the FilmArray EZ operates in substantially the same manner asthe FilmArray 2.0, and as such is not separately addressed below. For the purposes of infringement,Plaintiff Labrador's non-limiting examples relating to the FilmArray 2.0 are equally applicable tothe FilmArray EZ, albeit with use of at least the RP EZ Panel designed for use with the FilmArrayEZ. See BioFire Diagnostics Website, https://www.biofiredx.com/products/the-filmarraypanels/filmarray-respiratory-panel-ez/.
So, let's summarize: The firm that basically created the mess that is WeWork by dumping billions of dollars into the company, also owns a patent troll that bought up the patents from the sham medical testing firm Theranos, and is now using those patents to sue one of the few diagnostics companies that is actually making a Covid-19 test... in the middle of a pandemic. And, demanding the use of those tests be blocked:
That Defendants be enjoined from infringing the Asserted Patents, or if theirinfringement is not enjoined, that Defendants be ordered to pay ongoing royalties toLabrador for any post-judgment infringement of the Asserted Patents;
Honestly, I'm used to all sorts of awfulness, but this one piles awfulness upon awfulness, and takes it to a level of pure evil. The lawyers filing this lawsuit on behalf of "Labrador" should remember what they've done -- filing a bullshit patent trolling lawsuit, on behalf of a shell company for a notorious giant patent troll, using patents from a sham company, and using them to try to block the use of Covid-19 diagnostic tests in the middle of a pandemic. I wonder how they sleep at night. For the record, there are two law firms behind this filing. Irell & Manella is the big one, and they list out 7 different lawyers on this complaint: Morgan Chu, Alan Heinrich, Keith Orso, Adina Stohl, Dennis Courtney, Brian Weissenberg and Chaplin Carmichael. Their local firm is Farnan LLP, and the lawyers there are Brian and Michael Farnan. Morgan Chu is the big shot at Irell and runs its litigation group. He should take on much of the responsibility for this awful, awful lawsuit. Farnan LLP was formed by a former federal district court judge, Joseph Farnan, and I'll just note that 4 out of its 6 attorneys, including the two on this case have the same last name.I understand the need for zealous representation of a client in court, but this seems even more despicable than your every day patent trolling, and people should associate these lawyers names with the truly despicable behavior on display here. Similarly, it should be a reminder of why its a good thing that the Supreme Court decided a decade and a half ago that injunctions are often inappropriate in patent cases. I know that there's an effort underway to have Congress change the law to overrule the Supreme Court decision on that point, but imagine how that would play out in this scenario, in which necessary diagnostic testing might get blocked due to some patent troll with deep pockets.
Clearview's claims that its controversial facial recognition program is only for use by law enforcement agencies continues to be exposed as a lie. Documents obtained by BuzzFeed showed the company has sold its tech to a variety of private companies, including major retailers like Kohl's and Walmart.It's also expanding its reach across the globe, pitching its products to dozens of countries, including those known mostly for their human rights violations. Even when it limits itself to law enforcement agencies, it still can't help lying -- exaggerating its success and assistance in criminal investigations.Before Clearview became a plaything for government agencies and private corporations, it was a toy for the rich and powerful. Kashmir Hill -- who broke the first story about Clearview's problematic image-scraping operation -- has a followup in the New York Times detailing the company's unpleasant origin story.
One Tuesday night in October 2018, John Catsimatidis, the billionaire owner of the Gristedes grocery store chain, was having dinner at Cipriani, an upscale Italian restaurant in Manhattan’s SoHo neighborhood, when his daughter, Andrea, walked in. She was on a date with a man Mr. Catsimatidis didn’t recognize. After the couple sat down at another table, Mr. Catsimatidis asked a waiter to go over and take a photo.Mr. Catsimatidis then uploaded the picture to a facial recognition app, Clearview AI, on his phone. The start-up behind the app has a database of billions of photos, scraped from sites such as Facebook, Twitter and LinkedIn. Within seconds, Mr. Catsimatidis was viewing a collection of photos of the mystery man, along with the web addresses where they appeared: His daughter’s date was a venture capitalist from San Francisco.“I wanted to make sure he wasn’t a charlatan,” said Mr. Catsimatidis, who then texted the man’s bio to his daughter.
That's just one anecdote. There are others. Investors approached by Clearview, like venture capitalist Hal Lambert, explored the power of Clearview's app in pretty irresponsible ways. Lambert allowed his school-aged daughters access to the app. And it appears actor/investor Ashton Kutcher was given access to the app. He described an app that sounds exactly like Clearview when he appeared on the YouTube series "Hot Ones" last September.
“I have an app in my phone in my pocket right now. It’s like a beta app,” Mr. Kutcher said. “It’s a facial recognition app. I can hold it up to anybody’s face here and, like, find exactly who you are, what internet accounts you’re on, what they look like. It’s terrifying.”
It is terrifying. And far more people have had access to it than Clearview has admitted. Plenty of potential investors were given access to the app. It's not clear how many still have access, but it appears their use of the app went unmonitored/uncontrolled by Clearview. Understandably, investors want to know if the thing they're looking to invest in works, but Clearview did nothing to ensure this access was limited or used responsibly. That same attitude has carried over to its pitches to law enforcement, which encourages cops to use friends and family members as guinea pigs for tech it claims should only be used for legitimate law enforcement efforts.Power and responsibility are supposed to go hand-in-hand. There's none of that happening here. Clearview compiled a database by scraping images from hundreds of websites and is now selling this access to pretty much anyone willing to buy it.
We're nearing the end of our series about the winners of our public domain game jam, Gaming Like It's 1924. So far we've looked at Hot Water, Legends of Charlemagne, 192X, and The Hounds Follow All Things Down, and this week the feature is the winner of Best Digital Game: You Are The Rats In The Walls by Alex Blechman.This not just a returning win for Alex, but a second in the digital game category, following last year's win with Stopping By Woods On A Snowy Evening To Steal Treasure. While Stopping By Woods was a Twine-based remix of a Robert Frost poem, Rats brings things into the graphical realm with RPG Maker and takes on one of the more notable 1924 works to enter the public domain this year: H. P. Lovecraft's short story The Rats In The Walls. And both games have one thing in common: a sense of humor that pervades the writing and design. Rats takes the famous story — in which a man returns to his family's ancestral estate and discovers horrible secrets that drive him mad, made manifest in the form of scurrying rats that torment him — and gives the player the role of the titular vermin via a simple game mechanic: nipping at the character's heels to drive him towards various locations on the small but detailed map. Alongside this, it embraces a simple and highly effective comedy premise: combining the elaborate, heavily-wrought prose that Lovecraft is famous for with modern, casual, highly self-aware language. The result is consistently funny, with a few great surprise jokes and an absurd overall tone that just works.
As you can see, Rats also makes great use of RPG Maker assets to build a fitting and eye-catching (if unpolished) setting for the game, which was the first thing that made it a contender for the Best Digital Game category, but what really sealed the deal in that regard was the aforementioned game mechanic of driving the character around by controlling the rats that chase him. It's nothing mindblowing, and it can be (intentionally) frustrating, but it adds an element of gameplay and leverages the digital medium to make Rats something slightly more than just a simple story dressed up with sprite graphics (and also undoubtedly required some scripting to go beyond RPG Maker's basic capabilities). The mechanic also successfully makes the basic level of choice in the story (which just amounts to determining what order things unfold in) feel more integrated with the game. All this combines with the excellent writing to create a short experience that keeps players closely engaged from start to finish.You can play You Are The Rats In The Walls in your browser on Itch, or check out the other submissions in our public domain game jam. And come back next week for the final winner spotlight!
Back in January, Sonos took some well earned heat for a new product "recycle mode" that effectively bricked older smart speakers the company was no longer interested in supporting. They're now backtracking from the effort after significant backlash.It began last October, when Sonos announced a new "Trade up" upgrade program that let you trade in older Sonos hardware for a 30% discount on new speakers. But the program included a bizarre caveat: to get the discount, users need to put their old hardware into "recycle mode," which effectively bricks the product preventing it from being used again. According to Sonos, once you apply online you'll get the discount immediately, but the speaker system you're trading in goes into a 21 day countdown mode before it's inevitably made useless:
"Recycle Mode is a state your device enters 21 days after recycling confirmation in the Sonos app. In Recycle Mode, all data is erased and the device is permanently deactivated so you can safely and securely dispose of it. Once a device is in Recycle Mode, it cannot be reactivated."
Everybody including environmental and "right to repair" activists, professional home stereo installers, and ordinary consumers quickly complained about the decision, arguing that it effectively crippled expensive hardware that still worked. The fact that repurposing the hardware (or selling it to somebody else) never entered Sonos' executives brains suggested the program -- which is heavily hyped as being "environmentally friendly" -- wasn't particularly well thought out.After months of complaints however it seems like Sonos has seen the error of its ways, and has seemingly removed the entire option from the company's app:
"In recent days, however, Sonos quietly removed the recycle mode option from its app, replacing it with a prompt to call customer service. Additionally, the company now says it's working on posting a new trade-in flow to its website, which will remove recycle mode from the process."
Sonos still won't be supporting these older, expensive products, but at least they'll still work moving forward. Users can also still get the discount, but users simply have to register the serial number of their existing speaker. And while Sonos' about face is a very good thing, it's just another in a long line of examples of how, in the modern era, you no longer actually own the things you buy.
On September 11, 2015, Picard was protesting near a police DUI checkpoint in West Hartford. One of the defendants, John Barone, approached him under the pretext of public complaints and confiscated Picard’s camera and lawfully carried pistol. Unbeknownst to the troopers, the camera was recording when Barone brought it to where co-defendants Patrick Torneo and John Jacobi were talking.
That's just part of what happened before the recording the officers weren't aware of captured them colluding to make up crimes to charge Michael Picard with.There's more detail in the opinion [PDF] the court handed down last fall, which gave the State Police notice its officers were unlikely to escape Picard's lawsuit. One officer knocked Picard's video camera to the ground. When he picked it up to continue recording the officers, one of them did something really stupid.
While defendants discussed plaintiff, plaintiff picked up his video camera off the ground and aimed it at the three defendants.Barone then walked back to plaintiff. He grabbed plaintiff’s video camera and told him, “It’s illegal to take my picture.” Defendants have admitted that Barone “told plaintiff that it was illegal to take his picture without permission to do so;” and that Barone “secured” plaintiff’s camera.
Once they had it in their possession, the cops ignored the camera. This is important because they later argued they seized it because they thought it might be a gun. If they really thought the camera posed a threat to them, you'd think they would have examined the camera. But they didn't.If they had examined the camera, they might have noticed it was still recording. This is what the camera caught as it laid on top of the officers' vehicle.
Torneo spoke by phone to Lieutenant Allan to determine whether plaintiff had any “grudges;” asked why plaintiff was challenging them at the DUI spot checks; and discussed plaintiff’s past demonstrations.Defendants Torneo and Barone verified that plaintiff’s pistol permit was valid, that his gun was not stolen, and that there were no warrants for his arrest.On the video camera recording, Barone can be heard stating, “punch a number on this or do what? Gotta cover our ass.” Torneo can be heard saying, “Let’s give him something,” and “then we claim in backup that we had multiple people stop and complain … but they didn’t want to stay and give a statement.”
Here's the recording Picard's camera made -- one that captures officers colluding to create bogus criminal charges against a citizen.Picard was charged with two criminal infractions. Both were dropped by the prosecutor. More importantly, the court refused to extend qualified immunity to these officers on Picard's Fourth Amendment violation allegations. It also refused QI on Picard's First Amendment retaliation claim. With three officers facing a jury trial, the State Police has decided to buy its way out of this using taxpayer money.This incident shows why recording police officers isn't just important, it's necessary. While it may be difficult to record officers' discussions once they're back in their vehicle, having a recording device visible and present may deter cops from fabricating charges just because they don't like the legal activity you're engaged in. Officers are usually pretty careful to ensure their own illegal activity goes unrecorded, but it's tough for them to control devices operated by citizens.
A year ago, the DOJ subpoenaed Chelsea Manning to appear before a grand jury and provide testimony as it was building its case against Julian Assange, who was subsequently indicted on a very questionable basis. Manning refused to comply with the subpoena, and was put in jail for contempt of court. Many people -- even some supporters of Manning -- seemed split on this move, noting that complying with a lawful subpoena, especially regarding a situation where all information had been previously provided and in which the target is already indicted, is different than being asked to cough up private info. But, given the context of Manning's earlier incarceration and commutation, the whole effort seemed somewhat vindictive.As reporter Dell Cameron pointed out, the DOJ already has all the details of Manning's conversations with Assange. It's difficult to see what more it needed to get from her. And yet, she sat in jail. And considering her history with possible suicide attempts, it seemed (tragically) that being confined again could be incredibly damaging to her. Indeed, yesterday it was reported that she attempted suicide once again.Incredibly, just a day later, the court has ordered her released from jail, noting that her appearance "is no longer needed."
Upon consideration of the Court's May 16, 2019 Order, the Motion, and the Court's March 12, 2020 Order discharging Grand Jury 19-3, the Court finds that Ms. Manning's appearance before the Grand Jury is no longer needed, in light of which her detention no longer serves any coercive purpose. The Court further finds that enforcement of the accrued, conditional fines would not be punitive but rather necessary to the coercive purpose of the Court's civil contempt order.
The fact that the grand jury has been disbanded without her testimony -- and given Dell's point earlier about the DOJ already having all the details -- it makes you really question why this whole thing was necessary in the first place, because the answer sure seems to be that it wasn't. And yet, she spent months in jail, and still now faces basically a quarter of a million in fines that the court says is just dandy. What a sham.
Video streaming is a key part of today's Internet world. According to research from Sandvine, it represents 60.6% of total downstream volume worldwide. The centrality of video to the Internet experience makes video codecs one of the hottest technologies. The most popular format today is H.264, used by 91% of video developers. But H.264 is getting long in the tooth -- its history goes back two decades. An upgrade is long overdue. There's a successor, H.265, also known as High Efficiency Video Coding, or HEVC. However, the use of H.265 has been held back by patent licensing issues. As Wikipedia explains in painful detail, there are two main patent pools demanding payment from companies that use HEVC in their devices. For one of the pools, the patent list is 164 pages long. Partly in response to this licensing mess, and HEVC's high per-device cost, the Alliance for Open Media was formed in September 2015:
Seven leading Internet companies today announced formation of the Alliance for Open Media -- an open-source project that will develop next-generation media formats, codecs and technologies in the public interest. The Alliance's founding members are Amazon, Cisco, Google, Intel Corporation, Microsoft, Mozilla and Netflix.
In contrast to the proprietary and expensive H.265, the new video standard, called AOMedia Video 1 (AV1), is open source and royalty-free. Those features, and the backing of many of the top Internet companies, would seem to make it an obvious choice for manufacturers to build into their devices, leading to better-quality video streaming for end users at no extra cost.Life is never that simple. Back in March last year, Sisvel announced a "patent licensing program" for AV1. Sisvel is an Italian company that began as a manufacturer of white goods, particularly refrigerators, and has morphed into a group that "identifies, evaluates and maximizes the value of IP assets for its partners around the world". The AOMedia group wrote in response:
AOMedia is aware of the recent third-party announcement attempting to launch a joint patent licensing program for AV1. AOMedia was founded to leave behind the very environment that the announcement endorses -- one whose high patent royalty requirements and licensing uncertainty limit the potential of free and open online video technology. By settling patent licensing terms up front with the royalty-free AOMedia Patent License 1.0, AOMedia is confident that AV1 overcomes these challenges to help usher in the next generation of video-oriented experiences.
But refrigerator companies don't give up that easily. Sisvel has just announced that more companies have added patents to its pool. There are currently 1,050 patents that Sisvel says must be licensed, but in due course it expects that number will rise to around 2,000. The fact that people can claim that there are 2,000 separate patents involved in a video encoding format is an indication of how far the patenting madness has gone. The sheer number claimed for a single technology is an indication of how trivial most of them must be -- and thus by definition undeserving of monopoly protection.According to an article on c|net, Sisvel is "willing to pursue companies that don't pay its AV1 licensing fees". This probably means we are in for another few years of utterly pointless legal battles over who "owns" certain ideas. That's bound to cast a chill over this whole area, and to negate some of the benefits that would otherwise flow from an open source, royalty-free video standard. Companies will waste money paying lawyers, and end users will miss out on exciting applications of the technology. And all "because patents".Follow me @glynmoody on Twitter, Diaspora, or Mastodon.
Roughly a year and a half ago, we discussed a proposed amendment to Japanese copyright law that would seek to criminalize copyright infringement. The general consensus is that the chief impetus for this new addition to Japanese copyright law centered on the manga industry, which is a multi-billion dollar industry, despite that particular media being pirated alongside all other media. Whereas Japan's copyright laws were generally in line with American laws, specifically in that copyright infringement is treated as a civil matter, this new law changed that up to make it a criminal offense. The problem with that, as many people pointed out, is that Japan's constitution is quite clear that anything akin to censorship cannot be done except for the following circumstance:
“An act unavoidably performed to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable only when the harmc produced by such act does not exceed the harm to be averted."
For years and year, copyright infringement didn't meet that threshold. Now, suddenly, the Japanese government says it does. The idea of Japan eroding its own constitution as a favor to the manga industry is almost too insane to believe, except that it happened.There were other complaints about the proposed law, including the proposed draconian punishments that would have been handed out. The Japanese government claims to have addressed those concerns in a now approved draft of the legislation.
The draft legislation criminalizes the downloading of unlicensed manga, magazines and academic publications from the Internet. The penalties will be brought into line for those already in place for music and movies with a maximum two-year prison sentence and/or a fine of two million yen (US$19,118). The most severe penalties will be reserved for egregious and repeat offenders.In a step back from earlier proposals, Internet users will be allowed to download some image-based and academic content for limited private use in order not to stifle the flow of information and education, provided that activity does not impact copyright holders. Where the precise boundaries lie is currently unclear, however.
As we stated in our initial post, this is going to be a complete mess. For starters, criminal codes that represent massive culture-shifts to an entire country that can be described as "unclear" seem to be almost perfectly constructed to produce chaos. One can expect the courts to be suddenly full of such cases, with defendants that will have no idea why they are in court, why they were arrested, and why they might face jail time. And that's if this law isn't immediately challenged in Japanese courts on constitutional grounds, since the changes made to the drafted law still don't address the prohibition on censorship.On top of that, some of the targets of this legislation aren't actually direct infringers.
One aspect that is perfectly clear is the outlawing of so-called “leech” sites. These platforms, known in the West as linking or indexing sites, do not carry any copyrighted content themselves but provide hyperlinks to infringing material hosted elsewhere.Operating such a service in Japan will become punishable by up to five years in prison and/or a fine of five million yen (US$47,780). The latest estimates suggest that there may be up 200 of these “leech” sites in the country, a figure the government is hoping to reduce.
It seems fairly insane to punish sites that merely link to other content with five figure fines and five year prison sentences.But then it seems that insanity is all that's on the menu for this change in the law. Vaguely-worded, manga-protecting criminalization of copyright infringement that violates the constitution is a series of words I never thought I'd write, but c'est la vie.
Anyone who's read Techdirt for any length of time knows that I've spent years fighting for better anti-SLAPP laws at both the state and federal level. You may remember my public talk about the importance of anti-SLAPP's using the lawsuit against myself as an example, though my fighting for better anti-SLAPP laws dates back way before that event. Or, if you want a more humorous take on SLAPP lawsuits and the need for anti-SLAPP laws, you can check out John Oliver's clever take on the issue:In short, SLAPP lawsuits are "Strategic Lawsuits Against Public Participation." These are lawsuits -- generally defamation lawsuits -- that target someone's speech, not because the lawsuits have any chance of succeeding, but just because the filer knows that the lawsuit itself is a huge hassle, in terms of time, money, and attention, for those on the receiving end. What a good anti-SLAPP law does is threefold:
It shifts the burden quickly to the plaintiff to prove they have a viable case. This is important. Legitimate cases are not stopped by anti-SLAPP laws.
It makes it easier for the court to then dismiss frivolous SLAPP suits quickly, hopefully reducing the hassle aspect of such lawsuits.
It awards attorneys' fees to the defendant, hopefully reducing the cost of facing such a lawsuits, and providing stronger incentives against potential filers of SLAPP suits.
Unfortunately, only a little more than half of all states have an anti-SLAPP law, and there is no federal anti-SLAPP law. Also, multiple circuits have decided that state anti-SLAPP laws should not be used in federal court (multiple circuits have gone the other way as well). Even among states that do have anti-SLAPP laws, they can vary widely from state to state in terms of what they cover, how they work, and how effective they are.To sum it up: the state of anti-SLAPP laws is a mess, and it's allowing powerful people to create real chilling effects and tie up critics and commentators with bogus, expensive, lawsuits.For years, now, the non-profit Public Participation Project has been fighting to get better state anti-SLAPP laws passed and to get a federal anti-SLAPP law in place. They also keep track of the details of what states have anti-SLAPP laws, what they cover, and how various litigation around anti-SLAPP laws has turned out.I've admired and relied on its work for years, and that's why I was delighted this week to agree to join the board of the Public Participation Project, and help the organization fight for better anti-SLAPP laws to protect everyone's right to free speech, and against abusive, censorious, litigation that makes a mockery of the 1st Amendment and freedom of expression.
Last month we were happy to report that both houses of the Virginia legislature had passed anti-SLAPP laws (partially in response to Rep. Devin Nunes' use of the state for a bunch of SLAPPy libel-tourism lawsuits. As we noted at the time, the two versions that passed through each part of the legislature were somewhat different, so they needed to be reconciled.Unfortunately, it appears they were unable to reconcile to the two bills. In response to a tweeted question from reporter Rob Pegoaro, Schuyler VanValkenburg, who had introduced the House version of the bill, admitted that they couldn't reconcile the two, and it would need to wait until next year:
It did not. We made a lot of progress at bridging the bill b/t House and Senate and I'm confident about getting something next year.— Schuyler VanValkenburg (@VVforDelegate) March 9, 2020
This is disappointing on many levels -- especially as we keep seeing so many of these cases being filed in Virginia. Having a good anti-SLAPP bill these days is important, and plenty of damage can be done in the meantime, even if a good bill will be coming next year. This is an unfortunate opportunity lost.
The Michigan State Police recently informed Twitter users that it's engaged in stealing money from drivers. I don't know what it expected from this announcement, but I'm sure spending a few days being ratioed wasn't what the agency had in mind.Here's the first part of the MSP's "Yes, we steal money" announcement:
Trooper from First District Headquarters conducted a traffic stop for following too close on I-75 in Monroe County on March 3rd. Further investigation resulted in locating and seizing approximately $40,000.00 in cash. The driver was a 33 year old male from out of state and was— MSP First District (@MSPFirstDist) March 4, 2020
If you can't see the tweet, it says:
Trooper from First District Headquarters conducted a traffic stop for following too close on I-75 in Monroe County on March 3rd. Further investigation resulted in locating and seizing approximately $40,000.00 in cash. The driver was a 33 year old male from out of state and was
Here's the kicker, picking up where the first tweet left off:
So, some alleged criminal, originally only suspected of "following too close" was pulled over, hassled into a search, and relieved of his $40,000 by state troopers. No arrest, but I guess the money was guilty of something.This statement, issued a day after the tweets, doesn't really clarify anything. What it does show is the MSP enaged in catch-and-release drug enforcement, where suspected criminals are free to go, but not any cash they happen to have on them.
Lt. Brian Oleksyk, MSP public information officer, said the traffic stop and seizure were related to a narcotics investigation.“We develop probable cause in order to seize money,” he said.
That's a blanket statement about ideals. That's not a statement specific to this "investigation," which began with a pretextual stop and ended in a windfall for the State Police.But the most instructive thing about this whole experience is the hundreds of replies calling the State Police thieves. It shows people are pretty sick of hearing cops brag about how they took money from people without actually arresting the supposed criminals who were carrying the cash. Agencies engaged in civil asset forfeiture do not have broad support from the public. If they actually believe they do, they're lying to themselves.Cash is still a legal way to pay all debts public and private. It says so right on the money. Traveling with cash does not make someone a criminal and the existence of cash isn't the same thing as actual probable cause. I doubt being ratioed on Twitter will make the MSP rethink its forfeiture programs. But it does make it clear many people see "forfeiture" and "theft" as synonymous.Then there's the question of whether the MSP can actually do this. Last year, a law was passed effectively banning forfeitures under $50,000 without a conviction.
Starting in 90 days, the laws will prohibit assets taken in suspected drug crimes from being forfeited unless the defendant is convicted or the value of the money and property is more than $50,000, excluding the value of contraband.
Prosecutors and cops made highly-questionable arguments against the new law, claiming having to prosecute drug dealers would result in fewer drug dealers being prosecuted. Unless there's a loophole the MSP is planning to use (like the federal option), this set of tweets was the State Police announcing to everyone the agency was planning to break the law. Not a good look.
The ongoing fight between Nintendo and RomUniverse continues! While most of the targets of Nintendo's ire in its war on ROM sites folded to the company fairly quickly, RomUniverse's Matthew Storman boldly chose to fight in court. That led to Nintendo suing the site for copyright infringement. Storman attempted to crowdsource his legal defense, failed at that, and has been fighting this battle without legal representation. That likely explains the site's lame argument that somehow first sale doctrine makes the Nintendo ROMs on its site non-infringing, as though owners of game cartridges could copy the content to the site and resell or give them away there. The court saw through Storman's argument and allowed the trial to move forward.Which brings us to the present, in which Storman has not only responded to the lawsuit by claiming, again, that first sale doctrine protects him, but has now added a claim that he had no idea infringing files were on the site at all, and has demanded that Nintendo pay him for false claims of infringement. This reply was supposed to be due to the court in January, but the judge delayed that due date... so that Storman could attend a Federal Pro Se Clinic, where he got advice on how to represent himself.
After the brief delay, Storman filed his answer to the complaint at the California federal court. Still without an attorney, he maintains his innocence and denies all allegations of piracy and infringement.The site operator states that he is unaware of any infringing content that was uploaded to the website. And if there is any, these uploads may be legally protected by the first sale doctrine.
This is not going to work. Claiming ignorance as to the infringing material is fairly laughable. The first sale doctrine argument is a likely loser as well. And the fact that RomUniverse sold memberships in order to get around download limits makes it so as Storman was profiting off of the infringing material. That Nintendo didn't request takedowns of infringing ROMs, giving Storman a chance to comply and stay on the right side of the law, is annoying, but it doesn't suddenly make his other legal arguments any more valid.Storman goes on to claim, perhaps not entirely without merit, that RomUniverse is actually good for Nintendo.
In an attempt to turn the tables, Storman argues that Nintendo profited from his site. RomUniverse.com and the associated NDSUniverse.com, serve as free advertising vehicles for the gaming company which generated profit from it, for which the site owner never received a penny.“Copies on the Website originally from Nintendo when seen by users is a positive advertising asset to Nintendo. It is part of an implied contract with Nintendo over the last 10 years. This advertising asset can be calculated and measured by Nintendo in cooperation with Defendant,” Storman adds.
It's an argument we've made ourselves and it probably has some legs. The problem here is that there is no implied contract and Nintendo is well within its rights to sue for copyright infringement, even if that infringement has benefits for Nintendo.The real bonkers part of this, however, is Storman's counterclaim for damages from Nintendo.
Instead of compensating Nintendo, Storman wants the gaming company to pay up instead. He demands $150,000 per copyrighted work for the false allegations of infringement, as well as $2,000,000 for each false counterfeiting claim.On top of that, Storman also wants Nintendo to “permanently approve all copying, distributing, selling, performing, displaying, playing, or otherwise using any copy of an [Nintendo] copyrighted work, or any derivative thereof.”
I don't even know where to begin. Storman's play isn't going to work. Whatever lessons he learned in the Pro Forma classes, his actions aren't a good advertisement for those classes. RomUniverse, whatever its benefits to Nintendo, pretty clearly was a purveyor of infringing material. The site made money off of it. Nintendo, whatever you think of the company, is well within its rights here.It'd be best if Storman would realize he's digging his hole deeper and cut his losses.
Earlier this year, we wrote about the bogus "cybercrimes" charges brought against Glenn Greenwald in Brazil for his reporting on government corruption. As has been noted, a court and law enforcement had already said that Greenwald did not break any laws in his reporting, and had followed ethical journalistic guidelines. And yet, he was still charged with a crime for reporting on leaked documents, with prosecutors claiming that Greenwald's suggestions to the whistleblower on how not to get caught constituted a "clear role in facilitating the commission of a crime." This was clearly a charade, as the Bolsonairo government in Brazil seemed mostly to just want to intimidate Greenwald and the press away from reporting on what now appears to be an extremely corrupt government.A few weeks after the charges were announced, a court again said that it was clear that Greenwald broke no laws and refused to allow the case to go forward. However, as the Freedom of the Press Foundation has now announced, prosecutors have chosen to appeal that ruling and to continue to go after Greenwald.
In a troubling development for press freedom, Brazilian authorities have appealed a federal judge's ruling that rejected criminal charges against Intercept Brasil founding editor Glenn Greenwald. The charges stem from that outlet's investigative series documenting corruption involving high ranking prosecutors and Sergio Moro, the Justice Minister in President Jair Bolsonaro's right-wing administration.
Again, whether you agree with Glenn or not, this is a blatant attack on a free press, and an obvious attempt at creating a chilling effect around necessary reporting on government malfeasance. It's shameful that the Brazilian government is doing this, and it's important for everyone to be aware of what's happening down there and how they're seeking to scare off reporters from investigating corruption.
Over the past three weeks, we've featured Hot Water, Legends of Charlemagne, and 192X in our series about the winners of our public domain game jam, Gaming Like It's 1924. This week, we're focusing on the winner of the Best Adaptation award for the game that best embodied the original 1924 work upon which it was based: The Hounds Follow All Things Down by J. Walton.J. Walton is one of our returning winners, having taken the award for Best Deep Cut last year with Not A Fish, and this year's entry feels in many ways like an evolution of the ideas and mechanics introduced in that game: they both break a work apart into component pieces, and let players discover its hidden meaning (and generate new meanings) by finding connections in a play-space that grows outwards like a puzzle or a map. But The Hounds Follow All Things Down situates this play within its world in an ingenious and beautiful way. It's based on the 1924 novel The King Of Elfland's Daughter by Lord Dunsany — a highly-influential early work in the fantasy genre that wasn't fully recognized as such until decades after its release — which presents readers with the fantastical and majestic world of Elfland and its inhabitants. The game imagines an epic and ancient poem within this world, which has been passed down for generations in countless incarnations, and tasks the players with performing their version of this poem to an audience of elves that is always hungry for new variations.This premise speaks directly to the themes of changing culture and the public domain that directly inspired the game jam, and also to the spirit of fantasy and legend that suffuses the novel. Gameplay takes the form of a series of scenes, performed by the players and generated by drawing prompt cards and placing them in a grid where they form connections with each other. By the end the group will have composed and performed a version of this fictional poem that is entirely unique, yet intimately connected with every other version that comes out of the game and with Dunsany's world of Elfland.
One of the most interesting aspects of the game is how the prompt cards were developed: by playing around with the text of the book and a predictive algorithm. The designer's notes describe the process in detail:
The text excerpts were generated using a fairly strange process. Aswith some earlier experiments, I used Jamie Brew's pt-voicebox,which is available for free download on GitHub. This program hasthe interesting tendency to get caught in loops. For example, ifyou give it the text of The King of Elfland's Daughter and ask it tocontinually pick the 6th most likely word to appear next, you getthis as output:
he knew the speed was in all other side the old songs ofcame down sitting elfland the flood the border was not thetwo wide stole and a wind loitered summer days the borderbut all as forest in that valley land the trolls had they let usfrom the trolls with they went by since one evening standinggrey with her back from that bewildering black which she gotleft her and away from a pigeonloft but alveric in him andback a few days things in a he house amongst our earthlythings waned the hounds saw him far this time had drivenfor all were content they went by since one evening standinggrey with her back from that bewildering black which
After a while, it simply starts repeating the passage in italics. And asimilar thing happens any time you tell pt-voicebox to pick wordswith a fixed ranking of likelihood (the 13th most likely word, etc.),as well as when you give it a regular pattern of picks (the 2nd, 3rd,4th, 2nd, 3rd, 4th, etc.). The only way to avoid these loops is topick words in a random pattern, either intentionally selecting onesthat sound interestingwhich is how it's designed to be usedorpicking words randomly (always choosing the 1d6th most likely).I became fascinated by this tendency of the program, so I generateda bunch of text loops from The King of Elfland's Daughter andthen lightly edited the looped text to create the poem exceptsused in the game.
All regular readers here will need is to see a headline that includes both the word "trademark" and the NFL to get their eyes rolling. The NFL is notorious in its jealous protection of its intellectual property. In fact, the league goes much further than your everyday trademark bully, chiefly by pretending it has trademark rights that it absolutely does not have. This usually rears its head in the run up to the Super Bowl.But the other game of pretend the NFL likes to play is one in which it pretends to not know that Fair Use exists. That can be seen most recently in the league going after a seller or parody NY Jets gear on his Shopify site, getting the whole store taken down by asserting trademark infringement.
One of the NFL’s latest victims is Zach Berger, a New Yorker who sells merchandise for frustrated New York Jets fans through a website called Same Old Jets Store. Most of Berger’s products feature a parody version of the Jets’ logo, modified to say “SAME OLD JETS”—a phrase that’s been used for decades to criticize the team’s performance and express fans’ sense of inevitable disappointment. His other products include “MAKE THE JETS GREAT AGAIN” hats and clothing that says “SELL THE TEAM” in a font similar to one used on Jets merchandise.
The NFL got in touch with Shopify and claimed that every single product on the site violated its trademark rights. The notice that was sent was essentially boilerplate material, asserting claims that the league and teams own all rights to all trademarks for those teams. In addition, the league claimed that the general public would be confused into thinking that the NFL or the Jets were the ones that were selling this gear.Think about that for a moment. The NFL asserted that a store selling merchandise that makes fun of one of its teams would be confused with officially licensed gear. As the EFF link notes, one of the phrases on this merchandise is "SELL THE TEAM." And the NFL says the public is going to think that's an officially licensed product. These items are clear parody and fall under the realm of Fair Use.But there's a reason that trademark bullying works and it's because platforms like Shopify always, always, always err on the side of the rightsholder.
Disappointingly, Shopify responded to the infringement complaint by taking down Berger’s listings, without questioning the NFL’s absurd claims or giving Berger a chance to respond. Even worse, when Berger contacted Shopify and explained why the NFL’s complaint was baseless, Shopify simply stated that it had forwarded Berger’s message to the NFL and would not restore the listings “until this matter is resolved between the parties.” More than a week later, the NFL has yet to respond—which isn’t surprising, since Shopify already did exactly what the NFL wanted.
And so Berger's legit store remains down, all because the NFL would rather play pretend and be a trademark bully than withstand the slightest bit of criticism.
Two consecutive administrations have engaged in wars on whistleblowers. President Obama used the Espionage Act to punish more whistleblowers and leakers than all other previous administrations combined. President Trump promised to "drain the swamp" and reverse all the damage he believes Obama had done to this nation. Apparently that doesn't include ejecting yes men from prominent government positions or scaling back Obama's anti-whistleblower activities.Now that it's clear Bill Barr's DOJ is just an Oval Office lapdog, Senator Ron Wyden and Representative Ro Khanna are trying to do something to protect journalists who receive and report on leaked documents and other whistleblower activity.The Espionage Act Reform Act [PDF] would strengthen protections for journalists and whistleblowers, shielding them from vindictive prosecutions for engaging in acts protected by the First Amendment and (supposedly) by the federal government itself.A FAQ [PDF] released with the bill makes it clear the new law would not prevent legitimate deployment of the Espionage Act to prosecute government employees who hand government secrets to those not authorized to receive them, as well as foreign spies and other agents of foreign powers.What it would do is keep journalists from being prosecuted under the law and make it easier for whistleblowers to bring their concerns up through the proper channels. Here's what the bill does:
Protects journalists who solicit, obtain, or publish government secrets from prosecution. Ensures that each member of Congress is equally able to receive classified information, including from whistleblowers. Currently, the law criminalizes the disclosure of classified information related to signals intelligence to any member of Congress, unless it is in response to a “lawful demand” from a committee. This puts members in the minority party and those not chairing any committee at a significant disadvantage. Ensures that federal courts, inspector generals, the FCC, Federal Trade Commission, and Privacy & Civil Liberties Oversight Board can conduct oversight into privacy abuses. Ensures that cybersecurity experts who discover classified government backdoors in encryption algorithms and communications apps used by the public can publish their research without the risk of criminal penalties. It is up to governments to hide their surveillance backdoors; academic researchers and other experts should not face legal risks for discovering them.
This will prevent this administration (and the ones that follow it) from targeting whistleblowers and journalists -- something the Trump administration has been openly doing. It will also open up the official channels, making it easier for whistleblowers to take their concerns to Congress, rather than forcing them to navigate a complicated maze of deterrents with the omnipresent threat of prosecution hanging over their heads.The protections for security researchers is also a welcome addition. Researchers often become the subject of legal threats and criminal charges just for doing the important work of ensuring data and systems that should be secured are actually secure.Of course, this bill is being sent into hostile territory. The administration certainly doesn't want to see whistleblowers and journalists protected, and neither do far too many legislators. But if it does become law, it will reset the status quo -- turning the Espionage Act back into the law it was always supposed to be: something to wield against foreign spies and federal employees seeking to do harm to the nation, rather than those who actually wanted to make America better by reporting on wrongdoing.
This Chooseco and Netflix trademark dispute story gets more and more interesting. To catch you up, Netflix produced the Black Mirror iteration entitled Netflix which both was, and was marketed as, a "choose your own adventure" production, similar to the CYOA books from our youth. There was also some dialogue within the production itself that referenced "choose your own adventure." For this, Chooseco, which has a trademark on the phrase, sued Netflix. Netflix tried to get the case tossed on First Amendment grounds, failed, and has since counterclaimed to have Chooseco's trademark cancelled entirely.To highlight how stupid this all is, let's review some press from Netflix's latest iteration of its excellent Carmen Sandiego show, which includes post titles like Kotaku's Carmen Sandiego Is Getting Back To Its Gaming Roots With Netflix's Next Choose Your Own Adventure-Style Special.
Carmen Sandiego: To Steal or Not To Steal is a new special set in the continuity of Netflix’s animated reboot of the beloved adventure series, and sees Carmen forced into pairing up with her former sneaky tutors in the art of thievery at VILE Academy on a new string of heists. Why is Carmen working with her former frenemies? Because they’ve captured her friends Ivy and Zack, and are threatening to brainwash them into VILE’s latest operatives if she doesn’t team-up.Judging by the trailer, this isn’t going to be a Black Mirror: Bandersnatch level of mutability and player choice, which is fine, considering this is more aimed at kids and families (you also may note Netflix is definitely not attaching the Choose Your Own Adventure name to this one).
That's true. Netflix is absolutely not using anything remotely close to the CYOA moniker to promote this thing. Why? Well, almost certainly because of the nonsense lawsuit its wrapped up in with Chooseco. However, you will notice that the press is quite happy to describe Netflix's new production by the genre moniker that makes the most sense: choose your own adventure.This highlights the entire problem with Chooseco's lawsuit, as well as the reasoning behind Netflix seeking to cancel the trademark entirely. "Choose your own adventure" is either generic or descriptive, or perhaps some combination of both. What is isn't, to be sure, is somehow descriptive or distinctive of Chooseco products in particular.And, yet, Chooseco's lawsuit rolls on.
In late January, we had an analysis of an absolutely dreadful bill proposed by Senators Lindsey Graham and Richard Blumenthal -- both with a long history of attacking the internet -- called the EARN IT Act. The crux of the bill was that, in the name of "protecting the children," the bill would drastically change Section 230 of the Communications Decency Act, making companies liable for "recklessly" failing to magically stop "child sexual abuse material" -- opening them up to civil lawsuits for any such failures. Even worse, it would enable the Attorney General -- who has made it quite clear that he hates encryption -- to effectively force companies to build in security-destroying backdoors.On Thurdsay, the EARN IT Act (Eliminating Abusive and Rampant Neglect of Interactive Technologies Act) was officially introduced with two additional awful Senators: from the Republican side there's tech hating Josh Hawley, and on the Democratic side, there's encryption hating Dianne Feinstein.This version of the bill has a few changes from the draft version that made the rounds before, but in effect it is trying to accomplish the same basic things: forcing companies to backdoor encryption or lose Section 230 protections, while at the same time opening up platforms to a wide range of lawsuits (a la what we're seeing with FOSTA suits) from ambulance chasing tort lawyers trying to shake down internet platforms for money, while claiming to do so in the name of "protecting the children."Senator Ron Wyden, who authored Section 230 decades ago, had the most succinct explanation of why the EARN IT Act is bad on multiple levels:
After the federal government spent years ignoring the law and millions of reports of the most heinous crimes against children, William Barr, Lindsey Graham and Richard Blumenthal are offering a deeply flawed and counterproductive bill in response.This terrible legislation is a Trojan horse to give Attorney General Barr and Donald Trump the power to control online speech and require government access to every aspect of Americans' lives. It is a desperate attempt to distract from the Justice Department's failure to request the manpower, funding and resources to combat this scourge, despite clear direction from Congress more than a decade ago.While Section 230 does nothing to stop the federal government from prosecuting crimes, these senators claim that making it easier to sue websites is somehow going to stop pedophiles.This bill is a transparent and deeply cynical effort by a few well-connect corporations and the Trump administration to use child sexual abuse to their political advantage, the impact to free speech and the security and privacy of every single American be damned.
There are a number of key points on this, starting with the fact that Barr's DOJ has consistently failed to do what it's mandated by Congress to do in fighting against child sexual exploitation. Any news story that fails to mention this key point is failing you in not explaining the context. Barr is looking for someone to blame for his own failures, and he's picked on the politically convenient internet industry -- while simultaneously getting to undermine the encryption he hates.Another key point in the Wyden statement is that much of the EARN IT Act is dubious and cynical, but as Berin Szoka pointed out, this is likely to make stopping actual sexual exploitation that much more difficult:
Perversely, the EARN IT Act makes it easier to sue websites than people who actually create and disseminate CSAM, explained Szka. Facing potentially staggering civil liability means website providers will have no choice but to comply with the Commission's nominally voluntary 'best practices.'
In that same link, Berin highlights another Constitutional problem with the Act, which could make it much more difficult for law enforcement to track down those actually responsible for child porn -- a perverse end result, which is not unlike what we've already seen happen with sex trafficking in response to FOSTA, where police have been saying that the law has made it more difficult for them to investigate trafficking.This is a bad bill, put forth for cynical reasons, wrapped in a insincere "protect the children" blanket -- pushed for by a crew of companies who failed to innovate on the internet, and sponsored by Senators who have a long history of making it clear that they will beat up on civil liberties and innovation at any opportunity.
Unless you're somehow living in a cabin without electricity somewhere (in which case, how are you even reading this, bro?), you've heard all about the coronavirus. The virus is the subject of roughly all the news and at least half of our brainwaves these days, with an unfortunate amount of misinformation and spin floating around far too many governments and media. Some folks, such as social media groups used by law enforcement types, seem to think this is all a joke. Others, such as our very own United States Senate, seem to think an illness infecting and killing thousands is the perfect excuse to reauthorize surveillance powers by those same law enforcement types.China, meanwhile, isn't fucking around. While there is some analysis to do as to whether the country did enough in the early stages of the outbreak, not to mention whether it tried to downplay risks and silence dire warnings in a gamble to keep its economy going, there is no question that eventually it went full on heavy-handed to combat the virus. Since then, quarantines of metropolitan cities have been put in place, travel restrictions abound, and shutdowns of commercial and public services are the norm.But China's still gonna China, meaning the government is also banning a popular mobile game about infecting humanity with sicknesses after it surged in popularity in the country.
In a statement, Ndemic Creations said: "We have some very sad news to share with our China-based players. We've just been informed that Plague Inc. 'includes content that is illegal in China as determined by the Cyberspace Administration of China' and has been removed from the China App Store. This situation is completely out of our control."It's not clear to us if this removal is linked to the ongoing coronavirus outbreak that China is facing. However, Plague Inc.'s educational importance has been repeatedly recognised by organisations like the CDC [Centre for Disease Control and Prevention] and we are currently working with major global health organisations to determine how we can best support their efforts to contain and control Covid-19."
Let's be clear: this is absolutely about the coronavirus. Let's also be clear: this is China trying desperately to control the sentiments and minds of its population. I've played Plague Inc. It's great. It's also a game about inhabiting an anthropomorphic virus/bacteria/illness and developing or evolving that illness to literally kill all of humanity on literally all of the planet. That, to put it mildly, could strike the average person as somewhat morbid in the context of a world now dealing with coronavirus.On the other hand, the only reason China is taking this action is because Plague Inc. went wild in terms of popularity in China after the virus outbreak. China saw that as a problem and is trying to ban it to death. The reality, it seems, is that Plague Inc. actually makes it clear how hard it is for outbreaks to spread and can be therapeutic to those worried about pandemics.
It said that it was "devastated" for its Chinese players, adding that the game "encourages players to think and learn more about serious public health issues".Plague Inc. has become a huge hit since it was launched eight years ago. It now has 130 million players worldwide and soared in popularity in China amid the coronavirus outbreak, becoming the bestselling app in the country in January. Some players suggested they were downloading the game as a way to cope with fears surrounding the virus.
Games can be a lot of things to a lot of people. They can be therapy. They can be entertainment. They can be education.What they can't be, no matter the Chinese government's actions, is dangerous in the context of coronavirus.
Back at the end of 2018, a defunct Swedish app developer sued Facebook for the changes the company made to its app platform. As detailed by Cyrus Farivar (then at Ars Technica), it appeared that the lawsuit was somehow connected to the more high profile case filed by the developer of a sketchy bikini-spotting app, "Pikini," Six4Three. At issue was that after Facebook realized that various apps were abusing the access the Facebook platform gave them to suck up data (a la Cambridge Analytica), Facebook drastically scaled back the platform and changed overall directions. Six4Three is fighting to argue that somehow Facebook owed it to developers to keep its platform open.This other company, Styleform IT, seemed to jump on board with a lawsuit that had some striking similarities to the Six4Three suit -- including sharing some of the same lawyers. Either way, Farivar alerts us to the latest in the case, which is that Facebook has filed an anti-SLAPP claim against Styleform IT, arguing that its attempt to sue Facebook and Mark Zuckerberg over the company's moderation choices violate, first, Section 230 of the Communications Decency Act, which allows for Facebook to choose to moderate its platform however it wishes, and that the lawsuit itself is predicated on a 1st Amendment-violating effort to stifle Facebook's expressive decisions.
This case is an attack on Defendants' Facebook, Inc.'s and Mark Zuckerberg's free speech rightsand should be stricken pursuant to the anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16. Defendants bringthis motion because Plaintiff Styleform IT's claims in the First Amended Complaint (FAC) all turn onone constitutionally protected decision: Facebook's editorial decision to stop publishing certain usergeneratedcontent to third party app developers via the Facebook Platform.The fatal flaw is that Facebook, through its employees and executives including Mr. Zuckerberg,has a right to make editorial decisions as to what third-party content to publish through its Platform. TheFacebook Platform is a free service available to third-party app developers through which developers couldask Facebook users who downloaded their app for consent to access content the user shared or could viewon Facebook, including content shared with the user by their friends, which Facebook would then publishto developers (through APIs), consistent with the user's privacy settings. Defendants madeand need tobe free to continue to makedecisions about what third-party content Facebook publishes through thePlatform to protect users' privacy and experience on the Platform. These decisions fall squarely within theanti-SLAPP statute because they are based on Defendants' conduct in furtherance of their constitutionalright to free speech on issues of public concern. Specifically, the eight causes of action asserted againstDefendants challenge editorial decisions about the third-party content Defendants publish to third-partyapp developers through its Platform. In a digital world, this is precisely the sort of editorial decision thatcourts regularly protect under the anti-SLAPP statute.
The filing notes that the overall case was put on hold for nearly a year after Styleform IT's original lawyers (those associated with Six4Three) withdrew from the case. Late last year, the company finally obtained new lawyers and the case is back on. As the filing notes, the case seems to pretty clearly merit an anti-SLAPP filing, as its entire purpose is an attempt to force Facebook to change its editorial practices.
Defendants' decision to de-publish certain categories of content created by its users was an exerciseof editorial discretion taken in furtherance of its constitutional right to free speech, and each of Styleform'sclaims arises from that exercise of editorial discretion.Lawsuits that target a platform operator's editorial discretion in the maintenance of its forum areindisputably based on conduct in furtherance of free speech rights [on matters of public concern] and mustwithstand scrutiny under California's anti-SLAPP statute.
It seems pretty straightforward that Facebook is correct about this, and Styleform IT probably should lose on anti-SLAPP grounds (and Section 230 grounds, for that matter).However, given just how much general hatred there is of Facebook right now, and the knee-jerk reaction that many have to assume that Facebook must always be on the wrong side of any legal dispute -- I wonder if people will freak out about this particular filing. However, remember that the reason that Facebook made such significant changes to its platform was because of serious concerns with how the original platform could be used to reveal private info about Facebook users. The whole thing put Facebook in a no win situation. Closing that platform meant pissing off developers who relied on it. Leaving it open meant risking more privacy breaches. Given that situation, it seems pretty clear that Facebook's decision was the much more sensible one here, even if it upset a few developers (whose own apps seemed pretty limited in usefulness anyway).
This Google Stadia thing is starting to move into full on failure to launch territory. If you're unfamiliar with the Stadia product, it was pitched by Google as essentially the end of console gaming. Something like trying for "the Netflix of gaming" moniker, the idea is that Google would stream games for a monthly fee, freeing gamers from the need of having dedicated gaming hardware in their homes. The initial launch of the product was met with a public mostly uninterested in or skeptical of the service. Add to all of that the problems the platform had accepting new gamers, what looks like very real resolution issues with how games are delivered visually, and Stadia's problems getting gamers to "buy in" to the platform more recently, and it's all looking to be something of a disaster.It's not the most public problem Stadia has had thus far, but yet another issue is the empty shelves in Stadia's library of games. Right now, less than 30 games are on offer, which isn't exactly the sort of library that gets gamers to give up their consoles. What's worse, based on feedback gathered from game developers, Google doesn't appear to be terribly interested in enticing more publishers onto its platform.
As reported by Business Insider, many developers have explained that one of the biggest reasons indies have mostly stayed away from Stadia is the lack of financial incentive from Google. One executive at a publishing company described the amount of money that Google was offering to them as “so low” that it wasn’t even part of the conversation. Another indie dev described how most platform owners, like Microsoft and Epic, offer upfront incentives to entice developers and publishers to create or release games on their stores. But with Google Stadia the incentive was, in the words of that dev, “...kind of non-existent.”
For its part, Google is insisting it's going to increase its game library four-fold. For developers to come out and publicly discuss their reasons for not getting on board, however, and for those reasons to be the incentives for doing so, this really is starting to feel like one of those Google products that never achieves exit velocity. Everyone remembers Google Plus, for instance, where the company rolled out what was supposed to be a Facebook-killer, but never really backed that claim up with the attention a goal like that would deserve and require.Public comments like that are only going to compound the lack of incentives for publishers to be on Stadia and create even more trepidation for getting on Stadia. And if the games library never really takes off, neither will Stadia as a whole.
If this were a private business, it would have collapsed under the combined weight of its unhappy customers and its own incompetence. But it isn't. We realize you don't have a choice in your law enforcement provider and all that.The Orange County Sheriff's Department is a mess. It has been a mess for years. Some of its corruption was exposed five years ago, when an investigation by lawyers in a murder trial uncovered multiple occasions where the department had buried exculpatory information or refused to hand it over to defendants. This resulted in Orange County DA's office (including all of its 250 prosecutors) being kicked off the high-profile murder trial. The Sheriff's involvement was the strategic housing of jailhouse informants to illegally coax information out of defendants awaiting trial.The problems uncovered here were made worse when the Sheriff's Department shredded documents ahead of a DOJ investigation and then-Sheriff Sandra Hutchens claimed the omissions made by deputies during testimony were honest mistakes -- the unfortunate result of the officers supposedly not knowing what they could and could not discuss about the Department's informant database in open court.The same office "inadvertently" collected thousands of recordings containing privileged conversations between defendants and their lawyers. The department claimed a "software glitch" resulted in this windfall of rights violations.Evidence-handling continues to be a problem for this department. Last year, it managed to anger one of its best friends -- the Orange County DA's office -- by constantly booking in evidence in an untimely manner. The root cause? Very succinctly, the DA's office said the Sheriff's evidence-handling protocols had "no system of accountability."The audit of the department's extremely faulty booking process continues. And, as Elizabeth Weill-Greenberg reports for The Appeal, it's uncovering even more lax handling of criminal evidence.
Deputies booked evidence days, and sometimes weeks, after it was purportedly collected, according to an internal audit, which examined thousands of police reports filed between 2016 and 2018. Thirty percent of evidence was “booked out of policy,” according to a slide presentation describing the first audit’s findings. A second audit found that deputies had claimed to have collected evidence that was never booked.
Some deputies were far worse than others. One deputy in particular appeared to have set the curve the rest of the department was graded on.In one investigation, the department found that Sheriff's Deputy Bryce Simpson falsely claimed he booked evidence in 74 cases, according to a motion Sanders filed last month. In 56 of those cases, no evidence was booked at all, and in 18 only some of the evidence he reported was booked.Another young go-getter, Deputy Joseph Atkinson, claimed evidence had been booked in 26 cases where no evidence could be located. This included seven cases where Atkinson claimed to have booked drugs, leading one to wonder what actually happened to those drugs.And yet, as angry as the DA's office was with the Sheriff's Department late last year, nothing has been done to introduce any more accountability into a system that clearly has none. The department referred 17 deputies to the DA's office for criminal investigation. The DA's office has decided none of these public servants should be punished for abusing the public's trust.This isn't DA Todd Spitzer's fault. He defeated the former DA by running as a reformer. And while he has expressed his vast displeasure with the department's booking procedures, his office still decided none of the first 17 deputies referred to him for falsifying records should be criminally charged. That's not much of a reform and it's not going to change the culture that led to this situation. It's going to cost the DA a lot of criminal cases. Maybe once his office bleeds enough, he'll finally start taking this seriously.
Sportsball fans are the worst.That conclusion is immediately clear in this Sixth Circuit Court of Appeals First Amendment decision [PDF]. It opens with the court commenting on the lifelong antagonism present in Fans v. Refs, which is pretty much what this case is about.
Devoted sports fans are not known for their evenhandedness in judging referees. The sign of a true fan, it might even be said, is the hopelessness of attaining such equanimity. Veteran referee John Higgins surely was no stranger to this phenomenon before March 26, 2017. But what he experienced after that day’s game was extraordinary all the same.
John Higgins had the unfortunate duty of presiding over a close Kentucky Wildcats loss. After the game, he was criticized by the team's coach, who claimed the referee had pretty much single-handedly cost his team the game. The officiating was described as "putrid" by Matthew Jones on Kentucky Sports Radio. Jones also mentioned Coach Calipari had stated the team got "jobbed" by the officials, most prominently John Higgins.Die-hard sports fans are unreasonable human beings. The ones that provided the impetus for Higgins' lawsuit were some real fuckwits.
Soon after the game, fans discovered that Higgins owned a roofing business: Weatherguard Roofing. Its URL is www.rooferees.com, a portmanteau of “roof” and “referee.” A video posted by an anonymous user, titled “John Higgins[’] Sabotage of Kentucky,” depicted Higgins standing by a truck bearing the insignia of his business. In text at the bottom of the video, it suggested that viewers “[w]rite a review of him here[:] http://www.facebook.com/ rooferees.” Id. at 4.
This grabbing of pitchforks was not-so-mildly encouraged by Kentucky Sports Radio broadcasters, who claimed they didn't condone what was happening even as they pointed listeners and website readers to the ongoing destruction of Higgins' other livelihood by angry fans.
The day after the game, Jones devoted airtime to Higgins’ refereeing. He read one email from a listener who contemplated “leaving a bad review on John Higgins’ roofing Yelp page.” Jones responded that this would be a “bad thing to do” and would constitute “harassment.” Jones read another email from a listener who was “against trolling John Higgins” until he “saw the name of his roofing company.” Jones laughed that Higgins went with the name “rooferees.” Even so, he did not “think [the fans] should troll the guy.”That same day, Drew Franklin, a writer for Kentucky Sports Radio’s website, published a series of articles criticizing Higgins’ calls. He followed up the next morning with an article commenting that Higgins’ roofing business was “getting CRUSHED on its Facebook page.” He stated that he wouldn’t “link the page” because he disagreed with “attacking [Higgins’] side hustle.” He nevertheless posted a link to the video for those who could “stand to watch it.” More uncharitable posts followed. In one, he described it as a “busy day on KSR” of “contin[uing] the hatred of John Higgins.” In another, he commented that “Kentucky fans are really lighting up John Higgins’ roofing business,” while reproducing some of the fake and abusive reviews that fans posted.Franklin added that Kentucky Sports Radio “do[es] not condone the activity” occurring on Higgins’ pages. But at the same time, he and others reproduced at least a dozen comments posted there. One of those comments suggested Higgins’ roofing business “takes money under the table from the mafia in Vegas.” Another wondered if Higgins used “illegal labor, substandard materials, and shady accounting practices.” Yet another accused Higgins of “hit[ting] on [the commenter’s] 13[-]year[-]old son.”
Yep. Some real garbage people being egged on by other garbage people trying to claim the high ground while swimming around in the internet sewer. This was the end result.
The trolling campaign took a toll on Higgins’ business. It received over 3,000 phone calls in the two days after the game, with some numbers calling 40 or 50 times a day. The calls crashed the voicemail system and made it hard for customers to get through. Higgins received many false requests for service. Reputational harm followed. Weatherguard Roofing went from being the top-rated roofing business in Omaha, Nebraska (with 4.8 stars out of 5 on Google), to the worst-rated (with 1.2 stars out of 5) based on the 181 false reviews placed. (The North Carolina fans apparently did not respond by improving Higgins’ ratings.) Higgins closed his Facebook page to stem the bleeding. Threats also came to Higgins and his family. The business received over 800 threatening calls, and Higgins’ home phone received over 30 calls. At least a dozen provided the basis for a criminal investigation. When Higgins refereed a Final Four game that year, a bodyguard accompanied him.
Higgins sued Kentucky Sports Radio and its two commentators, alleging a number of things, including intentional infliction of emotional distress and tortious interference with his roofing business. His amended complaint added more allegations, including negligence, harassment, and engaging in harassing communications.Unfortunately for Higgins, the First Amendment protects the speech the sportscasters engaged in. Sports is a matter of public concern, right up there with politics. Limiting speech about refereeing would violate the First Amendment.
Public commentary about sports, some have said, is no less protected than commentary about “economics [or] politics.” Regan v. Time, Inc., 468 U.S. 641, 678 (1984) (Brennan, J., concurring in part and dissenting in part, joined by Marshall, J.). That sports coverage implicates public concerns is “amply demonstrated by the elaborate sports section in every daily newspaper published in this nation” and by the “numerous periodicals . . . exclusively devoted to sports.” Time, Inc. v. Johnson, 448 F.2d 378, 383 (4th Cir 1971).
That doesn't mean all the criticism is correct and even-handed. Far from it. But as biased and subjective as it is, it is still protected. The court throws a bit of shade at every fan who blames the refs for their team's loss.
Criticizing umpires serves other purposes, perhaps even healthy ones. It allows fans to suppress two unwelcome thoughts: that their team deserved to lose or that a lot of chance drives the fortunes of a team in a single-elimination tournament. How much better, after a dispiriting end-of-season loss, to be consoled by the thought that your team was robbed.
The court points out hating on the refs is a time-honored tradition, dating back to the phrase "Kill the Umpire!" in 1888's chart-topping Casey at the Bat. And General Douglas MacArthur once stated our boys fought and died to protect the "freedom to boo the umpire."As the court notes, this protected booing can get out of hand, as it did here. That doesn't mean the broadcasters are any less protected by the First Amendment. Even when they pull their waders up and hike into the raw sewage generated by toxic fans.
Just as commentators must be able to discuss the quality of the officiating, they must be free to comment on the fans’ reaction to the officiating. That means Kentucky Sports Radio could fairly discuss the game—and could freely criticize those who participated in it, including the referees, the coaches, the players, the fans, and for that matter the commentators. For Kentucky sportscasters, Higgins’ calls and the public’s reactions to them may have been the biggest story of the news cycle. Sure, some Kentucky fans likely tuned in to Kentucky Sports Radio’s coverage of Higgins solely for the schadenfreude. But even if its discussion served only that purpose, the discussion’s “inappropriate or controversial character” would not influence our analysis as to “whether it deals with a matter of public concern.”
Higgins argued that even if that commentary was protected, it was legally wrong for the commentators to bring up his roofing business. The court points out the broadcasters did not attack the business on their own. They only commented on fans' actions and statements. It also points out Higgins' ref work and his roofing business were not inseparable, as evidenced by Higgins' decision to name his business "Rooferees." This is a pretty pointed rebuttal of this argument:
[Higgins] cannot seek damages from pundits who called attention to the existence of a business that he promoted with his status as a referee before that became a liability.
The court further points out the malicious Kentucky fans began targeting Higgins' business before the radio station got involved. Even if the commentators arguably made things worse by reporting on the actions of these fans, that reporting is protected by the First Amendment. While the commentators did almost nothing to douse the flames of referee resentment, they did not unlawfully encourage unlawful behavior.
Kentucky Sports Radio did not advocate for Higgins’ harassment. Nor did its disavowal of the fans’ conduct smack of irony—usually. Yes, it did a poor job dissuading listeners from mischief. But a party cannot be sued for incitement merely because it failed to condemn the behavior of others with sufficient firmness or clarity.
The court has sympathy for Higgins. But it does not have a ruling in his favor. The First Amendment protects the broadcasters, who did not actually engage in the attacks on his business. Kentucky Sports Radio was the biggest target, but it is not the correct target for Higgins' allegations.
Perceived missteps in the public eye these days all too often unleash torrents of anonymous online hate. One can hardly blame the victim of such onslaughts for wanting redress. Or blame him for taking aim at the only members of the mob with faces: pundits like Jones and like Franklin who at times took too much glee in reporting on the misery of others. But a gulf lies between commenting on harassment and causing it. And in that respect, the First Amendment protects the rights of sports radio talk show hosts just as it protects the rights of presidents. Those who step into the public limelight, even temporarily, must face the hazard that sometimes comes with it.
There's no line that can be drawn that will give Higgins what he wants. That sucks but the other options are what? Exempting referees from criticism? Exempting referees with sideline businesses from criticism? None of those fly. If Higgins wants to make someone pay for the damage done to his business, he'll have to start tracking down some of the Kentucky fans who said something actionable. And there won't be many of those.As has been pointed out frequently, speech has consequences. Normally, this means someone saying stupid things should expect criticism for saying these things. But it also has consequences for those on the receiving end of things like this. Speech can damage people and their reputations without wandering out of the First Amendment's protections. But just because you can do something doesn't mean you should. These garbage fans should have limited themselves to directing their anger at the (subjectively) blown calls, not the man's outside business. But they're not smart people or wise people. They're spiteful people who are unable to exercise restraint. They're the kind of people that make other people say stupid stuff about regulating speech. Let's not encourage assholes. They're going to cost us our freedoms.
The National Crime Agency and Metropolitan Police are among a number of leading organisations across the UK that have registered users with controversial facial recognition technology firm Clearview AI, according to documents reviewed by BuzzFeed News.The technology also had users at a number of other police forces, private investment firms, the Ministry of Defence, and a charity founded by Harry Potter author J.K. Rowling, the data shows.
The Met Police already has its own facial recognition tech -- one that has consistently underperformed for years. According to a spokesperson, Clearview's proprietary database of 3 billion photos scraped from the web isn't being used in conjunction with the live tech already deployed by the agency. Other UK law enforcement agencies listed in the documents as having performed searches all stated they had used the software "on a trial basis" and are not currently using the tech to search for criminal suspects.The same comments were made by some private financial firms, which claimed it was demoed for them by Clearview, but they weren't currently using the software. A few refused to provide any comment at all, leaving that question open.The searches run by J.K. Rowling's charity also appear to have been part of a demo.
The charity told BuzzFeed News that a staff member had tried out the software once at an event and Clearview was not being used by Lumos in its work.A spokesperson for Lumos said: “A member of Lumos staff attended an anti-trafficking event last year to which a number of NGOs were invited as well as a representative from Clearview AI.“During the event the representative from Clearview AI demonstrated the software which we understand was being used in the US by law enforcement to tackle child exploitation.
Clearview AI, the secretive facial recognition company whose software has been used by more than 2,200 organizations around the world, created accounts for the offices of four members of Congress, including one whom President Donald Trump is nominating for director of national intelligence.Clearview data reviewed by BuzzFeed News includes an unused account for Texas Rep. John Ratcliffe, a Republican whose eventual nomination to DNI was announced by Trump on Friday via tweet. Trump has yet to formally send the nomination to the Senate.In Clearview documents viewed by BuzzFeed News, the entry for “Congressman John Ratcliffe Staff” indicates that that user had performed zero log-ins and zero searches, meaning that Clearview had created an account that was never used. A spokesperson for Ratcliffe told BuzzFeed News that Clearview staff had met with Ratcliffe’s staff.
In distributing its app for Apple devices, Clearview, which BuzzFeed News reported earlier this week has been used by more than 2,200 public and private entities including Immigration and Customs Enforcement (ICE), the FBI, Macy’s, Walmart, and the NBA, has been sidestepping the Apple App Store, encouraging those who want to use the software to download its app through a program reserved exclusively for developers. In response to an inquiry from BuzzFeed News, Apple investigated and suspended the developer account associated with Clearview, effectively preventing the iOS app from operating.
The company's CEO says it's working with Apple to get the app reinstated, claiming Clearview did not actually violate the rules since the app cannot be used without "proper authorization." But that doesn't explain why Clearview is demoing its "internal use application" to hundreds of potential customers and facilitating that access by setting up accounts for anyone who wants to try the app out. Apple's Enterprise Developer program forbids the distribution of internal apps to users outside of the developer's company.If Clearview stays ousted, it's going to hurt its plans for expansion. One of the selling points of Clearview's tech is that it's available in app form -- portable and usable by anyone who owns a smartphone. Linking the app to 3 billion face photos and other personal information scraped from the web makes it almost irresistible. Taking a sizable chunk of phone users out of the equation will slow the company's roll. But I imagine it will find a way to get some version of its app back into the store -- and into the hands of uncurated user base.
So far, we've featured Hot Water and Legends of Charlemagne in our series about the winners of our public domain game jam, Gaming Like It's 1924. This week, we're taking a look at the winner of the Best Remix award, for the best game that incorporated material from multiple different newly-copyright-free works: 192X by designer Chloe Spears.Several of the designers who entered this year's jam incorporated themes related to remixing and the public domain in their games, and 192X is a stand-out in this regard. It's a text-based interactive fiction built with the open-source tool Twine, and tells a story all about the way our popular culture is preserved, how it changes and gets parodied or reimagined, and how digital technology has impacted it — or, as Spears puts it in the game description, "about the art we leave behind for the future, and what we allow the future to do with it". Replete with references to the 1924 novel We by Yevgeny Zamyatin and George Gershwin's 1924 composition Rhapsody In Blue, story is funny, engaging, and creative: it sends you back in time to a fictionalized dawn of computing (from a future made dystopian by ironfisted cultural restrictions that are worryingly close to today's copyright reality), and then inside the Buster Keaton film Sherlock Jr. (a 1924 parody that serves as a springboard to even more contemplation of the public domain and specifically the great detective's role within it).
If the story in the game sounds unclear to you so far, that's because it's difficult to summarize for all the right reasons — it's quite short but contains a lot of carefully chosen elements, without anything that feels extraneous or arbitrary. Every reference and everything that happens ties back to the central theme of how we interact with art and culture, and the prose itself is snappy and entertaining. In other words: no more spoilers, just play it!Speaking of play: the actual gameplay involved is very minimal, with most of the interactivity just advancing the story down a linear path, with one traditional game mechanic temporarily employed more as an amusing nod than as an actual challenge. But the basic interactivity wasn't slapped on either, and meshes nicely with the overall design: the text prompts and careful timing combine with the use of color to effectively punctuate, organize, and enhance the story being told. The text-based game genre also enables the otherwise-rare second-person-perspective writing, addressing the reader as "you" throughout — and while it would only take a little bit of editing to make 192X work wonderfully as a short story, the writing is undoubtedly elevated by the game format.Finally, kudos to Chloe Spears for not just exploring the idea of the public domain and mining it for material, but for expanding it by releasing 192X with a CC0 Public Domain Dedication!You can play 192X in your browser on Itch, or check out the other submissions in our public domain game jam. And come back next week for the another winner spotlight!