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July 2020
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Disinformation Campaigns Are Murky Blends Of Truth, Lies And Sincere Beliefs: Lessons From The Pandemic

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The COVID-19 pandemic has spawned an infodemic, a vast and complicated mix of information, misinformation and disinformation.In this environment, false narratives - the virus was planned, that it originated as a bioweapon, that COVID-19 symptoms are caused by 5G wireless communications technology - have spread like wildfire across social media and other communication platforms. Some of these bogus narratives play a role in disinformation campaigns.The notion of disinformation often brings to mind easy-to-spot propaganda peddled by totalitarian states, but the reality is much more complex. Though disinformation does serve an agenda, it is often camouflaged in facts and advanced by innocent and often well-meaning individuals.As a researcher who studies how communications technologies are used during crises, I've found that this mix of information types makes it difficult for people, including those who build and run online platforms, to distinguish an organic rumor from an organized disinformation campaign. And this challenge is not getting any easier as efforts to understand and respond to COVID-19 get caught up in the political machinations of this year's presidential election.Rumors, misinformation and disinformationRumors are, and have always been, common during crisis events. Crises are often accompanied by uncertainty about the event and anxiety about its impacts and how people should respond. People naturally want to resolve that uncertainty and anxiety, and often attempt to do so through collective sensemaking. It's a process of coming together to gather information and theorize about the unfolding event. Rumors are a natural byproduct.Rumors aren't necessarily bad. But the same conditions that produce rumors also make people vulnerable to disinformation, which is more insidious. Unlike rumors and misinformation, which may or may not be intentional, disinformation is false or misleading information spread for a particular objective, often a political or financial aim.Disinformation has its roots in the practice of dezinformatsiya used by the Soviet Union's intelligence agencies to attempt to change how people understood and interpreted events in the world. It's useful to think of disinformation not as a single piece of information or even a single narrative, but as a campaign, a set of actions and narratives produced and spread to deceive for political purpose.Lawrence Martin-Bittman, a former Soviet intelligence officer who defected from what was then Czechoslovakia and later became a professor of disinformation, described how effective disinformation campaigns are often built around a true or plausible core. They exploit existing biases, divisions and inconsistencies in a targeted group or society. And they often employ unwitting agents to spread their content and advance their objectives.Regardless of the perpetrator, disinformation functions on multiple levels and scales. While a single disinformation campaign may have a specific objective - for instance, changing public opinion about a political candidate or policy - pervasive disinformation works at a more profound level to undermine democratic societies.The case of the 'Plandemic' videoDistinguishing between unintentional misinformation and intentional disinformation is a critical challenge. Intent is often hard to infer, especially in online spaces where the original source of information can be obscured. In addition, disinformation can be spread by people who believe it to be true. And unintentional misinformation can be strategically amplified as part of a disinformation campaign. Definitions and distinctions get messy, fast.Consider the case of the Plandemic video that blazed across social media platforms in May 2020. The video contained a range of false claims and conspiracy theories about COVID-19. Problematically, it advocated against wearing masks, claiming they would activate the virus, and laid the foundations for eventual refusal of a COVID-19 vaccine.Though many of these false narratives had emerged elsewhere online, the Plandemic video brought them together in a single, slickly produced 26-minute video. Before being removed by the platforms for containing harmful medical misinformation, the video propagated widely on Facebook and received millions of YouTube views.As it spread, it was actively promoted and amplified by public groups on Facebook and networked communities on Twitter associated with the anti-vaccine movement, the QAnon conspiracy theory community and pro-Trump political activism.But was this a case of misinformation or disinformation? The answer lies in understanding how - and inferring a little about why - the video went viral.The video's protagonist was Dr. Judy Mikovits, a discredited scientist who had previously advocated for several false theories in the medical domain - for example, claiming that vaccines cause autism. In the lead-up to the video's release, she was promoting a new book, which featured many of the narratives that appeared in the Plandemic video.One of those narratives was an accusation against Dr. Anthony Fauci, director of the National Institute for Allergy and Infectious Diseases. At the time, Fauci was a focus of criticism for promoting social distancing measures that some conservatives viewed as harmful to the economy. Public comments from Mikovits and her associates suggest that damaging Fauci's reputation was a specific goal of their campaign.In the weeks leading up to the release of the Plandemic video, a concerted effort to lift Mikovits' profile took shape across several social media platforms. A new Twitter account was started in her name, quickly accumulating thousands of followers. She appeared in interviews with hyperpartisan news outlets such as The Epoch Times and True Pundit. Back on Twitter, Mikovits greeted her new followers with the message: Soon, Dr Fauci, everyone will know who you 'really are'.This background suggests that Mikovits and her collaborators had several objectives beyond simply sharing her misinformed theories about COVID-19. These include financial, political and reputational motives. However, it is also possible that Mikovits is a sincere believer of the information that she was sharing, as were millions of people who shared and retweeted her content online.What's aheadIn the United States, as COVID-19 blurs into the presidential election, we're likely to continue to see disinformation campaigns employed for political, financial and reputational gain. Domestic activist groups will use these techniques to produce and spread false and misleading narratives about the disease - and about the election. Foreign agents will attempt to join the conversation, often by infiltrating existing groups and attempting to steer them towards their goals.[Deep knowledge, daily. Sign up for The Conversation's newsletter.]For example, there will likely be attempts to use the threat of COVID-19 to frighten people away from the polls. Along with those direct attacks on election integrity, there are likely to also be indirect effects - on people's perceptions of election integrity - from both sincere activists and agents of disinformation campaigns.Efforts to shape attitudes and policies around voting are already in motion. These include work to draw attention to voter suppression and attempts to frame mail-in voting as vulnerable to fraud. Some of this rhetoric stems from sincere criticism meant to inspire action to make the electoral systems stronger. Other narratives, for example unsupported claims of voter fraud, seem to serve the primary aim of undermining trust in those systems.History teaches that this blending of activism and active measures, of foreign and domestic actors, and of witting and unwitting agents, is nothing new. And certainly the difficulty of distinguishing between these is not made any easier in the connected era. But better understanding these intersections can help researchers, journalists, communications platform designers, policymakers and society at large develop strategies for mitigating the impacts of disinformation during this challenging moment.The ConversationKate Starbird, Associate Professor of Human Centered Design & Engineering, University of WashingtonThis article is republished from The Conversation under a Creative Commons license. Read the original article.

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posted at: 12:00am on 31-Jul-2020
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Two Breweries Fight Over The Right To Use A Geographic Name Due To Trademark

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If there is one thing that really needs to stop at the USPTO, it is the organization's continued approval for trademarks on terms that are basic geographic indicators. While this isn't just an American thing, far too often people are able to get trademark approvals for marks like area codes or the name of their home counties and towns. Given that the purpose of trademark law is to allow unique identifiers for the source of a good or service, marks like these are obvious perversions of the law.And yet it keeps happening. One recent example of this comes from Kentucky, where two Louisville breweries are in a fight over the use of the name of a neighborhood in that city, Butchertown.

Copper & Kings American Brandy Co. and Butchertown Brewing Inc. are engaged in an intellectual property dispute over the use of “Butchertown” in the forthcoming brewery’s name. Andy Cobb, owner of Butchertown Brewing, posted a GoFundMe campaign July 27, to raise $5,000 to go toward legal fees associated with establishing his right to use “Butchertown” in the name of his brewery.Copper & Kings sent a cease-and-desist letter to the brewery April 29 for the use of “Butchertown” in the business’ name, as records from the U.S. Patent and Trademark Office (USPTO), show Joe and Lesley Heron, founders of Copper & Kings, have held the trademark for “Butchertown” on beer, ale, lager, stout, porter and shandy products since 2013.
Butchertown, again, is a neighborhood in Louisville. Close to downtown, it's well known in the area. The very idea that someone could keep a brewery in Butchertown from naming itself Butchertown Brewing Inc. is downright silly. Trademark law was never meant to prevent a company from stating where it was from.Notably, while Copper & Kings is indeed headquartered in Butchertown as well, it's a massive brand that has expanded to more than half of the states in America.
As of July 2017, Copper & Kings' 31 markets include: Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, Washington, Washington D.C., West Virginia, Wisconsin.
Which, hey, good for them! Still, one wonders just for whom the term Butchertown in its brands serves as a better source identifier, Copper & Kings, or the would be Butchertown Brewing Inc.?Either way, this is all very silly. The USPTO should not be granting trademarks on geographic terms. And if the name of a damn neighborhood in Louisville, Kentucky isn't a geographic term, I don't know what would be.

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posted at: 12:00am on 31-Jul-2020
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Moderation Of Racist Content Leads To Removal Of Non-Racist Pages & Posts (2020)

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Summary: Social media platforms are constantly seeking to remove racist, bigoted, or hateful content. Unfortunately, these efforts can cause unintended collateral damage to users who share surface similarities to hate groups, even though many of these users take a firmly anti-racist stance.A recent attempt by Facebook to remove hundreds of pages associated with bigoted groups resulted in the unintended deactivation of accounts belonging to historically anti-racist groups and public figures.The unintentional removal of non-racist pages occurred shortly after Facebook engaged in a large-scale deletion of accounts linked to white supremacists, as reported by OneZero:

Hundreds of anti-racist skinheads are reporting that Facebook has purged their accounts for allegedly violating its community standards. This week, members of ska, reggae, and SHARP (Skinheads Against Racial Prejudice) communities that oppose white supremacy are accusing the platform of wrongfully targeting them. Many believe that Facebook has mistakenly conflated their subculture with neo-Nazi groups because of the term skinhead.
The suspensions occurred days after Facebook removed 200 accounts connected to white supremacist groups and as Mark Zuckerberg continues to be scrutinized for his selective moderation of hate speech.Dozens of Facebook users from around the world reported having their accounts locked or their pages disabled due to their association with the "skinhead" subculture. This subculture dates back to the 1960s and predates the racist/fascist tendencies now commonly associated with that term.
Facebook's policies have long forbidden the posting of racist or hateful content. Its ban on "hate speech" encompasses the white supremacist groups it targeted during its purge of these accounts. The removals of accounts not linked to racism -- but linked to the term "skinhead' -- were accidental, presumably triggered by a term now commonly associated with hate groups.Questions to consider:
  • How should a site handle the removal of racist groups and content?
  • Should a site use terms commonly associated with hate groups to search for content/accounts to remove?
  • If certain terms are used to target accounts, should moderators be made aware of alternate uses that may not relate to hateful activity?
  • Should moderators be asked to consider the context surrounding targeted terms when seeking to remove pages or content?
  • Should Facebook provide users whose accounts are disabled with more information as to why this has happened? (Multiple users reported receiving nothing more than a blanket statement about pages/accounts "not following Community Standards.")
  • If context or more information is provided, should Facebook allow users to remove the content (or challenge the moderation decision) prior to disabling their accounts or pages?
Resolution: Facebook's response was nearly immediate. Facebook apologized to users shortly after OneZero reported the apparently-erroneous deletion of non-racist pages. Guy Rosen (VP- Integrity at Facebook) also apologized for the deletion on Twitter to the author of the OneZero post, saying the company had removed these pages in error during its mass deletion of white supremacists pages/accounts and said the company is looking into the error.

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posted at: 12:00am on 30-Jul-2020
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Stone Brewing Is Very Upset That People Don't Like Its Trademark Bullying

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It was just days ago that we were discussing Stone Brewing's new campaign to jealously protect all uses of the word "stone" on alcohol branding. The one time advocate brewer claiming to stand up for craft brewing against "Big Beer" has since devolved into a corporate gorilla smashing up the USPTO to get trademarks cancelled and firing off cease and desist notices to small breweries. All this, mind you, as it also wages war on a second front with MillerCoors over Keystone's rebranding as simply "Stone". In that suit, MillerCoors complained that lots of breweries use the word "stone", which appears to have set Stone Brewing off on its bout of aggression.When Sawstone Brewing pushed back on a C&D and failed to work out an agreement with Stone Brewing, the latter initiated an attempt to cancel the former's trademark. Sawstone complained publicly. And now Stone Brewing is busy complaining that the public is being mean to it as a result.

Stone Brewing published a lengthy statement on its website Monday night regarding its trademark dispute with Sawstone Brewing Co. in Morehead, Ky., saying that Stone has become the “subject of a vicious online harassment and smear campaign.”In a newly published statement, Greg Koch, the CEO of Stone Brewing, acknowledged the company’s multiple trademark disputes, noting that “this kind of thing is just part of owning a brand name and a company identity,” but he claimed that Sawstone’s version of events is not how the situation unfolded.
We'll get into that last bit in a second, but its worth pointing out that Koch's claim that this is all somehow necessary due to owning a brand name is demonstrably false. MillerCoors itself argued against this, admittedly disingenuously. After all, while I think I'd argue that turning Keystone to Stone probably is too close to Stone Brewing so as to cause confusion, MillerCoors' claim that lots of other breweries have used the word "stone" within their brands for a long, long time is absolutely true. And if Stone Brewing not only survived, but thrived, with all those other uses in existence, it negates completely the claim that Stone Brewing had no choice but to act as it has. Were that true, Stone Brewing wouldn't be the behemoth it now is.Now, on to Koch's claim that Sawstone Brewing's description of events wasn't accurate... it's all in the petty details. Essentially, Koch claims that this all started when Sawstone Brewing attempted to trademark its name and that Stone Brewing tried to amicably work out a settlement of the trademark issues over the course of a few months. In addition, Sawstone missed a couple of deadlines for which it had promised settlement proposals. And... that's it.All of which completely misses the point. Stone Brewing didn't have to take this action at all. And while the reported claims of online stalking and threats sent to Stone Brewing are reprehensible if true, a public backlash to bullying behavior by a brewer that was supposed to be standing up to these types of corporate actions is perfectly valid. If Stone Brewing doesn't like that version of the backlash, it can cease playing the bully. Unfortunately...
As for the trademark dispute, Koch said that Stone will not back down and that the decision will ultimately lie with the USPTO.
Well, then enjoy the continued backlash, you Arrogant Bastards.

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posted at: 12:00am on 30-Jul-2020
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ProPublica Releases NYPD Discipline Records Its Union Thought It Had Talked A Court Into Keeping Secret

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Forty-five years after a law was passed in New York allowing public agencies to withhold employees' disciplinary records from the public, it was finally taken off the books by the state's legislature. The law -- known by its statute number "50-a" -- hadn't really been an obstacle to the limited transparency begrudgingly extended by the NYPD until the department suddenly decided it was no longer interested in sharing information about disciplined officers with journalists.The decision to start following the letter of the law occurred in 2016. Four years later, the state legislature erased it, making these records accessible again. The Police Benevolent Association (PBA) -- one of two NYPD unions -- sued to block the release of records created by the city's Civilian Complaint Review Board (CCRB). The PBA secured a temporary restraining order earlier this month, blocking the release of these records. The federal judge also forbade the ACLU from releasing documents it had already obtained until the PBA's appeal has been addressed.Here's the strange thing: the New York branch of the ACLU isn't a party to this suit. The PBA sued the city and mayor over the records. The ACLU is going to fight the bizarre order from Judge Katherine Polk Failla. But ProPublica also has a copy of these records. And it's not going to bother with speaking to Judge Failla. After all, it's not a party to this lawsuit either. The temporary restraining order the PBA obtained is permanently worthless.

Today, we are making this information public and, with it, providing an unprecedented picture of civilians’ complaints of abuse by NYPD officers as well as the limits of the current system that is supposed to hold officers accountable. We’ve published a database that lets you search the police complaints so you can see the information for yourself. Data experts can also download the data.
The database doesn't include everything obtained from the CCRB. It only includes information on officers who've had at least one substantiated allegation against them. Even so, the data set includes 4,000 officers, more than 10% of the NYPD's workforce.There are more caveats as well, but they don't make the NYPD look any better. The data set is further limited by the CCRB's reach, which has been deliberately limited by the NYPD itself.
Investigators are often not able to reach conclusions on cases, in significant part because they must rely on the NYPD to hand over evidence, such as footage from body-worn cameras. Often, the department doesn’t do so, despite a legal duty to cooperate with CCRB investigations.
On top of that, the term "exonerate" is used very loosely by the CCRB. In some cases, the CCRB was able to substantiate claims of abuse but found that the abusive acts were actually permitted by the NYPD's lax guidelines on force deployment.Even with all the limitations, it's still possible to detect patterns of abusive behavior by certain officers. As ProPublica notes, more than 300 officers have at least five substantiated allegations. A small group of officers are apparently angling for union leadership positions.
Thirty-four officers have had 40 or more allegations against them.
This release by ProPublica is a major step towards the transparency the NYPD has spent years fighting. It provides some insight into the NYPD's disciplinary issues. While the records may only cover a small percentage of the total force, the high number of substantiated allegations against a number of still-employed officers makes it clear it takes an incredible amount of abuse before one of New York's finest finds themselves out of a job. As ProPublica notes, you're more likely to end up out of a job if you expose an officer's record of abuse. Compare the fate of the leaker to that of the uniformed killer of Eric Garner:
The city investigator who revealed the existence of the officer’s record was forced to resign in 2017; the officer himself wasn’t fired until 2019.
The best part of this is that the records are now public and there isn't anything the PBA -- or the NYPD officers it represents -- can do about it. This release was probably inevitable, what with the repeal of 50-a. But rather than having to sit through rounds and rounds of motions and appeals, the public has access to records the NYPD would have never released on its own.

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posted at: 12:00am on 29-Jul-2020
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Viacom's Copyright Bots Take Down 'Star Trek' Comic-con Panel Because These Bots Suck Out Loud

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We've argued for a long, long time that these automated copyright takedown bots that far too many media companies utilize are both broken and illuminate just how broken copyright takedown policies for streaming sites have become. The output of this broken system is shown when these bots take down totally legitimate content or when grifters abuse the system to try to take some measure of income away from small third-party streamers. But attempts at machine-based copyright enforcement are truly at their most satisfying when content companies employing these bots commit unintentional copyright seppuku.This happens way more than you might think, but the latest version of this is Viacom briefly nuking its own Star Trek Comic-Con panel when the copyright borg misfired.

The panel included the cast and producers of Discovery doing a read-through of the first act of the season 2 finale, "Such Sweet Sorrow, Part 2." The "enhanced" read-through included sound effects, effects shots, and storyboard images meant to bolster the actors as they delivered lines from their living rooms and home offices.Even if the presentation didn't look like a real episode of Discovery to the home viewer, it apparently sounded close enough: after the Star Trek Universe virtual panel began viewers began to lose access to the stream. In place of the video, YouTube displayed a content ID warning reading: "Video unavailable: This video contains content from CBS CID, who has blocked it on copyright grounds.
While it's fun to laugh at the notoriously protective CBS for killing off its own stream, the reality is that even these instances are immensely frustrating. The fact is that instances like this should serve as an indication to CBS that something is very wrong with how it's operating when its attempts at copyright protection result in its own promotional material getting taken down, however briefly.But the introspection never comes, changes are never made, and instead CBS goes on its merry way likely shitting out mistaken copyright enforcement at plenty of others. I'd say that it at least gives me items to write about, but I don't want to. The fact is that the system is broken, everyone knows it's broken, and we have yet to even begin doing anything about it.In fact, these automagic filtering systems are in such wide use that this same stream has to be unblocked by more parties as well.
Unfortunately, it seems an array of media companies are each going to have to rush to correct the error in turn: two hours later, io9 reporter Beth Elderkin tweeted that a Cartoon Network panel livestream was pulled offline due to a copyright claim from Turner, Cartoon Network's parent company.
Again...broken. Beyond repair. And yet we're not going to even try to fix it, because something something protecting the artists.

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posted at: 12:00am on 28-Jul-2020
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Appeals Court Bashes Predictive Policing And The Judge Who Argued People In High Crime Areas Want Fewer Rights

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A very interesting decision [PDF] has been handed down by the Fourth Circuit Court of Appeals. It not only addresses what constitutes exigent circumstances, but also attacks predictive policing as nothing more than a tool law enforcement uses to enforce a racist status quo.The decision is long. It has four(!) concurrences and two dissents. Three of the concurrences attack the dissent written by Judge J. Harvie Wilkinson, who believes not giving the government what it asked for blunts officers' ability to police high-crime areas.Here's the Appeals Court's final ruling, which details the events leading to this challenge, as well as its outcome.

This appeal presents the question of whether the Fourth Amendment’s exigent circumstances doctrine justified the suspicionless seizure of Defendant-Appellee Billy Curry, Jr. The police seized Curry after responding to several gunshots that were fired in or near an apartment complex less than a minute earlier. When the police arrived, they encountered five to eight men—including Curry—calmly and separately walking in a public area behind the complex, away from the general vicinity of where the officers believed the shots originated; several other people, likely visitors or residents, standing around closer to the apartments; and another man walking toward the rear of the officers’ patrol car, who appeared to be favoring one of his arms.The district court held that exigent circumstances did not justify the suspicionless, investigatory stop of Curry, and so it granted his motion to suppress a firearm and other evidence based on the unreasonableness of the seizure that led to its discovery. We agree with the district court’s conclusion. To hold otherwise would create a sweeping exception to Terry v. Ohio, 392 U.S. 1 (1968).
The government first argued this was a permissible Terry stop supported by reasonable suspicion Curry had something to do with the fired shots officers were notified about. It abandoned that argument during its appeal, admitting the officers had no articulable suspicion. Instead, it relied on the exigent circumstances exception to the Fourth Amendment. In essence, the government argued officers can stop and search anyone in an area they believe a crime has occurred. Not so, says the Fourth Circuit.
The exigent circumstances doctrine typically involves emergencies justifying a warrantless search of a home, not an investigatory stop of a person, and the few cases that have applied the doctrine in the investigatory seizure context are materially distinguishable. In those cases, the government isolated a discrete area or group of people and engaged in minimally intrusive suspicionless searches in an effort to search for a suspect implicated in a known crime in the immediate aftermath of that crime. Requiring such suspicionless seizures to be narrowly targeted based on specific information of a known crime and a controlled geographic area ensures that the exigency exception does not swallow Terry whole. Because these limiting principles were wholly absent from Curry’s stop, we hold that the stop was not justified by exigent circumstances and thus was not reasonable under the Fourth Amendment.
Judge Wilkinson's dissent starts out promising enough:
We face again in this day of sad and unhappy truths the divide between what are already two Americas.
But then devolves into pro-law enforcement, anti-Fourth Amendment rhetoric:
In one America, where citizens possess the means to hire private security or move to safer neighborhoods, the impact of judicial barriers to effective law enforcement may be minimal. In another America, though, people have no choice but to endure the unintended consequences of our missteps, as crime moves to fill the vacuum left by the progressive disablement of the law’s protections. These repercussions, moreover, serve as reminders of the fact that only a segment of this country, the least fortunate among us, ends up shouldering the weightier burden when our branch of government oversteps its proper role.
Wilkinson's argument is this: to properly police areas where crime is common, the government must be allowed to "overstep its proper role." And this side of the "two Americas" should just be willing to exchange part of their rights for greater law enforcement efficiency. This tradeoff begins with predictive policing, which relies on biased input to make biased decisions about where police should focus their proactive efforts. This means entire neighborhoods and everyone in them are treated like criminals until they can prove otherwise to the police officer accosting them. Wilkinson thinks this is a good thing and says the limitation on exigent circumstances applied here undercuts law enforcement's ability to treat hundreds of people like criminals. Predictive policing put these officers near the scene of the shooting, allowing them to respond within seconds. That they responded unconstitutionally doesn't appear to bother Judge Wilkinson.
It is hard to see how this innovation [predictive policing] can continue under the majority’s conception of the Fourth Amendment. Indeed, the sole practical takeaway from the majority opinion is that police officers on the scene of an unfolding emergency must sit and wait for identifying information, rather than use discretion and judgment to get control of a possibly deadly event, lest the prevention of a homicide violate the Constitution. This injunction entirely saps predictive policing of its potency, and effectively forecloses the tradeoff— faster responses for fuller information—that innumerable cities have opted for in making their streets safer. This is a mistake.
The ends justifies the means, according to this judge. Wilkinson seems to believe many US citizens would welcome the chance to be proactively viewed as criminals. But the Fourth Amendment stands in the way of this privilege.
Is predictive policing the answer? Is it presumptively too injurious to individual rights in affected areas? Richmond has not been spared the mix of peaceful protests and violent outbreaks evidenced throughout the nation, and I hardly know what might begin to heal this divide. I know only that communities deserve the chance to give predictive policing a try.
Wilkinson suggests the Fourth Amendment can be altered at the state and local level to allow officers more leeway to serve the public by violating the rights.
The Fourth Amendment—and the “reasonableness” standard at the heart of it—is hardly inconsistent with our federalism. States and localities, many of them majority-minority, can choose within “reason” what law enforcement strategies work for them. Their latitude is not infinite, but latitude there is.
This bizarre blessing of Constitutional rights violations by Judge Wilkinson is greeted by three stinging concurrences that spend most of their runtime attacking his dissent. The first is written by Chief Judge Roger Gregory, a Black man (Wilkinson is white), and it is merciless.
When I read the first line of Judge Wilkinson’s dissent I was heartened by the thought: well, at least he acknowledges that there are “two Americas.” But this glint of enlightenment was to serve as a “soap box” for his charge against the majority’s decision. It is understandable that such a pseudo-sociological platform was necessary as his assertions are bereft of any jurisprudential reasoning. More to the point, his recognition of a divided America is merely a preamble to the fallacy-laden exegesis of “predictive policing” that follows. Through his opinion, my colleague contributes to the volumes of work gifted by others who felt obliged to bear their burden to save minority or disadvantaged communities from themselves.
Judge Gregory says subtracting Constitutional protections and adding more cops isn't going to make communities like these feel any more safe.
[W]e know that many of our fellow citizens already feel insecure regardless of their location. In a society where some are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles, it is still within their own communities—even those deemed “dispossessed” or “disadvantaged”—that they feel the most secure. Permitting unconstitutional governmental intrusions into these communities in the name of protecting them presents a false dichotomy. My colleague insists on a Hobson’s choice for these communities: decide between their constitutional rights against unwarranted searches and seizures or forgo governmental protection that is readily afforded to other communities.
He then points out that the predictive policing Judge Wilkinson lauds -- the software that put officers on the scene of a potential shooting within seconds -- didn't do anything to improve the quality of the police work.
From this perspective, the video of the present incident mimics the aggressive, discourteous, and ineffective policing that concern many. As the officers approached the scene seconds after gunshots rang out, the members of this community, including Curry, pointed them in the direction in which the perpetrator was likely to be found. Because, as Judge Diaz notes in his concurrence, it would have been difficult for the officers “to determine whether any firearm (which, of course, are generally lawful to possess) seized in the effort to identify the suspect was the source of the gunfire,” one would think that the officers’ best hope for finding the shooter was to accept the guidance offered by community members. That, of course, was not the case here. The officers ignored the assistance and the shooter got away. Like most citizens, it is likely that residents of the Creighton Court community do not want police officers to be tough on crime, or weak on crime—they want them to be smart on crime.
The immolation of Wilkinson's dissent continues in the second concurrence -- one that also questions what the judge was thinking when he decided people in high-crime areas should be treated as second-class citizens when crime is being investigated.
While Judge Wilkinson agrees “that the phrase ‘high-crime area’ cannot serve as a facile excuse for indiscriminate interventions,” I am puzzled that in the next sentence, he advocates doing just that by stating, “neither can skepticism toward the preventive potential of predictive policing in violent crime locales allow us to deny its benefits ab initio to communities that might welcome them.” Wilkinson Dis. Op. at 67. Justifying predictive policing on the policy basis that neighborhoods—whether termed “violent crime locales” or “high-crime areas”—“might welcome [it]” still results in the citizens of those communities being accorded fewer constitutional protections than citizens of other communities, as the police accept Judge Wilkinson’s proposed tradeoff: “faster responses for fuller information.” Id. Such an outcome fails as a matter of law. We may not treat citizens as second-class simply because they live in areas that my good colleague calls “violent crime locales.”
The second concurrence reminds Judge Wilkinson of the court's place in the grand scheme of things. It's supposed to be a check against government overreach, not an enabler of Constitutional violations.
[O]ur analysis must stay rooted in constitutional principles, rather than turn on naked policy judgments derived from our perception of the beneficial effects of novel police techniques
It also states something overlooked entirely in the second dissent: there are more Amendments in play here than just the Fourth.
People of course have a right to own firearms. And sometimes firearms are discharged near others, whether deliberately or accidentally. If anybody in the vicinity of gunfire can be stopped without reference to any of the Fourth Amendment’s protections, it follows that those protections apply with lesser force to those who own guns and discharge them—and to those who are merely within earshot. And unless we wish to limit such a diminution in constitutional safeguards to those in high crime areas—which we cannot, and should not, do—Judge Richardson’s reasoning would apply with equal force to both economically disadvantaged public housing communities like Creighton Court and wealthy suburban gated complexes.
The fourth concurrence -- written by Judge Thacker and Judge Keenan -- is equally as harsh in its assessment of Wilkinson's attempt to stretch exigent circumstances to cover the search of anyone in the general location of a suspected criminal act.
I am compelled to write this separate concurring opinion only in response to the dissenting opinion authored by Judge Wilkinson, who writes today with a smooth pen and a tin ear. Judge Wilkinson’s dissenting opinion accuses the majority members of our court of all but dismantling the rule of law and of “overstep[ping our] proper role.” Wilkinson Dissenting Op., post at 63. I cannot sit silent in the face of Judge Wilkinson’s dissent. In my view, the use of predictive policing, which Judge Wilkinson endorses, is little more than racial profiling writ large.
Wilkinson's touting of predictive policing (and its apparent attendant reduction of civil liberties) is just as awful as the law enforcement miracle he believes at-risk communities are dying to have inflicted on them.
Over time, predictive policing has been shown to be, at best, of questionable effectiveness, and at worst, deeply flawed and infused with racial bias.[...]Technology cannot override human flaws. It stands to reason that any computer program or algorithm is only as good as the data that goes into it. In the computer science arena, this is known as “GIGO” (garbage in, garbage out); flawed data input produces nonsense output. In predictive policing, GIGO is a real concern because “hot spot policing,” which utilizes historical crime data to predict future crime hot spots, can be infected with years of racial bias. Because “historic crime data is biased through the practice of racialized enforcement of law, predictive policing will inherently reinforce and perpetrate this structural racism.”
Finally, there's an agreement of sorts:
I note that Judge Wilkinson and I agree on one point. “If change is to occur, part of the obligation must lie with police themselves, and the essential efforts they must daily make to earn the trust of their communities and prove themselves responsible stewards of their power.” [...] Thus, to achieve this result, we must never lose sight that it is individual police officers, not a computer program, who abuse their authority by violating the constitutional rights of citizens such as Billy Curry, based on the simple fact that they committed the offense of “walking while black.” No fact in this case ever suggested Billy Curry’s involvement in the commission of the crime under investigation. And the majority’s enforcement of his constitutional rights is the shield that will protect him and others from the bleak future imagined by Judge Wilkinson.
How a discussion of an unconstitutional stop and frisk turned into a spirited defense of one of the worst law enforcement tech developments of the last half-century is something only Judge Wilkinson can fully comprehend. As for most of the rest of the Appeals Court judges, the willingness to cast aside rights in exchange for law enforcement efficiency is truly -- and horrifically -- inexplicable. Some judges may secretly desire a more police-state-ish existence… at least for some American citizens. Fortunately, the rest of the court isn't having it. The Fourth Amendment lives.

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posted at: 12:00am on 28-Jul-2020
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This Week In Techdirt History: July 19th - 25th

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Five Years AgoThis week in 2015, MPAA emails revealed a plan for an anti-google smear campaign run through the Today Show and the Wall Street Journal, Sony/Soundcloud pulled out the copyright takedown hammer over entries in an official remix contest, a UK court ruling flip-flopped on CD ripping for personal use, and we joined IMDb and Reddit in getting hit by a bogus DMCA takedown from a German film distributor — though this wasn't the dumbest takedown of the week, with a company representing Universal Pictures managing to accidentally DMCA the localhost IP address. Meanwhile the UK police admitted to investigating journalists for covering the Snowden leaks, the New York Times falsely claimed ISIS was using encryption and couriers because of Snowden, and a judge ordered the CIA to pay the hefty legal fees of a FOIA requester.Ten Years AgoThis week in 2010, the US Copyright Group was moving to phase two of its lawsuit shakedown plan, human rights groups were speaking out about the huge problems with the USTR's "special 301" process, and America's IP czar was pointing fingers at China. A Dutch court upheld the ruling that The Pirate Bay must block Dutch users while the Pirate Party in Sweden was launching its own "Pirate ISP", a Canadian court let Perfect 10's latest case against Google move forward, and the BSA was using totally made up stats to try to change copyright laws in South Africa. Meanwhile, we wrote about how weak anti-SLAPP laws don't help anyone, while the Senate in the US passed the SPEECH Act to shut down libel tourism.Fifteen Years AgoThis week in 2005, the Associated Press was blatantly misrepresenting BitTorrent, while News Corp was buying in to sketchy adware. We wrote about how the recording industry believes what it wants to believe, and asked why public schools should be doing copyright dirty work for entertainment companies. A silly but unsurprising backlash emerged against mobile phones due to their possible use by terrorists, while rumors were brewing about the iPod Video, even though most people still weren't sold on mobile video as a concept. And voters in Louisiana saw through telco threats and FUD, and voted for a muni fiber network.

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posted at: 12:00am on 26-Jul-2020
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NY Post's Journalistic Malpractice: Misleading Reporting On Nick Sandmann's Washington Post Settlement

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Earlier this year, we wrote about the bizarre reporting on the confidential settlement between CNN and Nick Sandmann, the high school student whose encounter in Washington DC became an internet sensations based initially on a short video that many suggested misrepresented the encounter and others argued did not misrepresent it at all. It was all a matter of perspective, though many people eventually came to the reasonable conclusion that there was a knee-jerk reaction in the initial coverage that was perhaps unfair to Sandmann. Indeed, many, many people admitted that they shouldn't have jumped to conclusions so quickly without knowing the full story.Of course, what's funny is how many of Sandmann's supporters are now jumping to opposite conclusions without knowing the full story of settlements.Sometime after the whole kerfuffle around Sandmann, he filed highly questionable defamation lawsuits against the Washington Post, CNN, and NBC. CNN settled in early January, but the details were confidential. A settlement could literally mean that no money exchanged hands, or possibly a tiny amount did. Or maybe a large amount did. Given the details of the case, it would be shocking if any significant amount of money exchanged hands, because CNN was going to win the case easily. But it's still expensive to go through that process, so it's often much easier to just pay up a little bit to make the case go away.The Washington Post case was initially thrown out as none of the statements were seen to be defamatory. A much narrower amended complaint reinstated the case, but was still unlikely to succeed. However, again, at some point it's going to be cheaper to settle, and now it appears that the Washington Post chose to settle -- again with the details kept confidential. Again, I'd be shocked if any significant amount of money changed hands, but no one knows for sure.What I can say for sure is that the reporting by the NY Post, by reporter Ebony Bowden, about the settlement comes about as close to journalistic malpractice as any article I've seen. The entire framing of the article suggests that the Washington Post agreed to pay Sandmann $250 million. The headline says "Washington Post settles $250M suit with Covington teen Nick Sandmann" implying that the only options were to fight the case or pay $250 million. That's not how any of this works. The text of the article is just as bad, other than a buried sentence saying that "it's unclear how much newspaper settled for." The rest of the article just keeps hitting on the giant numbers that he asked for which have nothing at all to do with whatever settlement was made.

The Washington Post on Friday agreed to settle a monster $250 million lawsuit filed by Covington Catholic High School student Nick Sandmann over its botched coverage of his 2019 encounter with a Native American elder.Sandmann declared the victory in a tweet on his 18th birthday. It's unclear how much the newspaper settled for.[....]It's the teen's second win in a whopping $800 million defamation battle against a number of news outlets including the Washington Post, CNN, ABC, CBS, The Guardian, The Hill and NBC.CNN agreed to settle with Sandmann in January this year as part of a separate $275 million claim.
All those huge numbers are the amount he asked for. But lawsuits always ask for a ton of money. They don't always get them. And there is no way that Sandmann got anywhere near those numbers in any settlement. Indeed, settlements can be for $0 dollars (ask me how I know). It's not even uncommon for plaintiffs who file for crazy amounts to settle for $0, if the details are kept confidential, just so they can claim a victory. I don't know if that happened here. If I had to guess, I'd guess that the Washington Post paid a nominal amount to get Nick and his lawyers to go away, at a cost significantly less than it would have taken to fight (and win) this lawsuit. Because that's how these things usually happen.But, thanks to the framing of the NY Post, tons of people on social media are immediately jumping to conclusions that Sandmann got many many millions.



Of course, the real irony here is that the NY Post and all of these people are doing the exact same thing that they accused the media of doing to Sandmann in the first place: making assumptions without knowing the full details of the context or what actually happened.

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posted at: 12:00am on 25-Jul-2020
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Content Moderation Case Study: Talking About Racism On Social Media (2019)

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Summary: With social media platforms taking a more aggressive stance regarding racist, abusive, and hateful language on their platforms, there are times when those efforts end up blocking conversations about race and racism itself. The likelihood of getting an account suspended or taken down has been referred to as Facebooking while Black.As covered in USA Today, the situations can become complicated quickly:

A post from poet Shawn William caught [Carolyn Wysinger's] eye. "On the day that Trayvon would've turned 24, Liam Neeson is going on national talk shows trying to convince the world that he is not a racist." While promoting a revenge movie, the Hollywood actor confessed that decades earlier, after a female friend told him she'd been raped by a black man she could not identify, he'd roamed the streets hunting for black men to harm.For Wysinger, an activist whose podcast The C-Dubb Show frequently explores anti-black racism, the troubling episode recalled the nation's dark history of lynching, when charges of sexual violence against a white woman were used to justify mob murders of black men."White men are so fragile," she fired off, sharing William's post with her friends, "and the mere presence of a black person challenges every single thing in them."
This post was quickly deleted by Facebook, claiming that it violated the site's hate speech policies. She was also warned that attempting to repost the content would lead to her being banned for 72 hours.Facebook's rules are that an attack on a protected characteristic -- such as race, gender, sexuality or religion -- violates its hate speech policies. In this case, the removal was because Wysinger's post was speech that targeted a group based on a protected characteristic (in this case white men) and thus it was flagged for deletion.Questions to consider:
  • How should a site handle sensitive conversations regarding discrimination?
  • If a policy defines protected characteristics, are all groups defined by one of those characteristics to be treated equally?
    • If so, is that in itself a form of disparate treatment for historically oppressed groups?
    • If not, does that risk accusations of bias?
  • Is there any way to take wider context into account during human or technological reviews?
  • Should the race/gender/sexuality/religion of the speaker be taken into account? What about the target of the speech?
  • Is there a way to determine if a comment is speaking up to power or speaking down from a position of power?
Resolution: In the case described above, Wysinger chose not to risk losing her Facebook access for any amount of time, and simply chose not to repost the statement about Liam Neeson. Facebook, for its part, has continued to adapt and adjust is policy. It streamlined its appeals process to try to deal with many of these kinds of cases, and has announced (after two years of planning and discussion) the first members of its Facebook Oversight Board, an independent body that will be tasked with reviewing particularly tricky content takedown cases on the platform.

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posted at: 12:00am on 25-Jul-2020
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Judge Benchslaps Richard Liebowitz Again Over His Request To Not Have To Tell Everyone About Previous Sanctions

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Judge Jesse Furman clearly is not interested in copyright troll Richard Liebowitz's games any more. As you may recall, Furman put together that massive benchslap of Liebowitz last month, detailing the many, many, many times Liebowitz failed to follow court orders, and plenty of examples of where he appeared to lie to the court. Furman also included an appendix with an astounding list of 40 examples in other cases where Liebowitz had been found to similarly fail to follow court orders and/or lie to the court. The ruling concluded with Liebowitz being sanctioned a bit over $100k, but also with requirements that he send the order to all of his clients and every other judge handling a Liebowitz case.Earlier this week, we wrote about Liebowitz (finally represented by other lawyers) trying to get those other sanctions removed (he paid the money, but doesn't want to have to tell others about this ruling). His lawyers took the bold strategy of saying that it would be unfair to Liebowitz's clients to have to inform them of what a terrible lawyer he is -- and tried to excuse all the sanctions and failed order following as a result of (1) inexperience and (2) a "unique" business model of filing way too many cases.Judge Furman is, shall we say, not impressed. He took all of two days to issue a 14 page order that is basically an encore presentation to the original benchslap. The first paragraph sets the tone:

On June 26, 2020, the Court issued a fifty-four page Opinion and Order familiarity with which is assumed imposing a range of monetary and non-monetary sanctions on the oft-sanctioned Plaintiff's counsel Richard Liebowitz and his firm, the Liebowitz Law Firm, PLLC.... The sanctions were based on three sets of detailed findings: first, that Mr. Liebowitz had violated at least six of the Court's Orders; second, that he repeatedly lied to the Court, including under oath at a hearing, about whether he had been granted permission by a mediator (the Mediator) for his client to participate in a mediation session by telephone; and third, that he had failed to reasonably investigate whether the photograph at issue (the Photograph) had been registered with the Copyright Office (it hadn't), both prior to filing suit and when put on notice about the issue during the litigation.... The Court found that the sanctions, several of which involve notifying other clients and courts about the Court's Opinion and Order, were reasonably necessary to deter repetition of the misconduct given Mr. Liebowitz's long and ignominious history. ... Mr. Liebowitz and his firm had thirty days to comply with several of the sanctions.... Two evenings ago that is, twenty-four days after the Court's decision and only four business days before the deadline they filed a motion (styled as an order to show cause) asking the Court to stay those sanctions pending appeal.
You may sense that Furman is not happy about all this. He notes that there are four factors in determining whether or not a court should issue a stay regarding such sanctions pending an appeal: "(1) whether the stay applicant has made a strong showing that he is likely tosucceed on the merits; (2) whether the applicant will be irreparably injured absenta stay; (3) whether issuance of the stay will substantially injure the other partiesinterested in the proceeding; and (4) where the public interest lies." He then notes: "the Court finds that the Movants do not come close to carrying their heavy burden."But Judge Furman is just getting warmed up:
The Court is tempted to leave things there and let its Opinion and Order, with its exhaustive findings and analysis, speak for itself. (Mr. Liebowitz's shenanigans have surely consumed enough of this Court's time and resources as it is.) But a few observations are in order, if only to aid the Circuit in the event that the Movants decide to now burden that court with having to decide on short notice whether a stay pending appeal is warranted.
Let's just say that if a judge says that about you in an order, the rest of the document is not going to go well for you. Judge Furman highlights, as we did, that any "harm" done to Liebowitz from having to share the sanctions order is not from the sanctions order, but from Liebowitz's own actions that resulted in the order:
For starters, the Movants' claims of irreparable harm ring hollow for several reasons. First, the Movants' principal claim is that the sanctions which require service of the Court's Opinion and Order on current and future clients and in current and future actions will result in severe and irreparable reputational and economic harm to their law practice.... But any harm to Movants' reputations resulting from the mere act of sharing the Court's Opinion and Order is caused not by the sanctions themselves, but by growing awareness of Mr. Liebowitz's own conduct and record, which are accurately recounted in the Court's Opinion and Order. Notably, the Movants attack none of the history recounted in the Court's Opinion and Order and few of the Court's factual findings, and, as discussed below, their attacks on those findings are entirely unpersuasive.
And then he points out that the sanctions could have been worse, and that the court was actually somewhat restrained in how it chose to issue sanctions:
Significantly, the Court did not bar or even inhibit the Movants from filing any new action though such sanctions have long been approved with respect to vexatious litigants.... Instead, its order merely requires the Movants to share information that is, the Opinion and Order with their clients and any courts in which they appear for a time, on the theory that they may be deterred from further misconduct by the knowledge that their clients and courts are likely to be more vigilant. Requiring a party to share truthful information here, that this Court made certain findings and, on the basis of those findings, imposed sanctions on the Movants does not constitute irreparable harm.
There's also a footnote crammed in there noting that Liebowitz was free to inform his clients that he disagreed with the court's findings and sanctions, or that he was planning to challenge them.
Second, to the extent that awareness of the Court's Opinion and Order will cause the Movants' reputational and economic harm, much of that harm has already occurred. As the old saying goes, the cat is out of the bag. The Court's Opinion and Order is a public document and, due in no small part to Mr. Liebowitz's well-deserved notoriety, it has already received fairly extensive publicity in the press and social media, particularly in the copyright world. Granting a stay would not undo any of that damage (which, needless to say, is ultimately attributable to Mr. Liebowitz's own deplorable conduct rather than to the Court's Opinion and Order itself). Put another way, the potential harm here is not irreparable; it is only marginal.
And here, there's a footnote citing much of the coverage about the original order (including our own post about it).Judge Furman also notes Liebowitz waiting until the clock was about to run out before filing this request:
Finally, a court must consider a plaintiff's delay in seeking relief when analyzing whether the plaintiff will suffer irreparable harm in the absence of relief.... That is because inexcusable delay in filing a motion to stay severely undermines the . . . argument that absent a stay irreparable harm would result. Hirschfeld v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir. 1993) (rebuking the Board of Elections for seeking a stay twenty-eight days after judgment was entered and only six days before election day). As noted, the Court gave the Movants thirty days in which to comply with the relevant sanctions or seek appropriate relief. Nevertheless, they waited until day twenty-four to seek a stay (at which point, no less, they proposed giving their adversary only three days in which to respond). Put simply, the Movants' delay, in itself, belies [their] conclusory assertions of irreparable harm and is enough to defeat [their] claim.
By this point, it appears that Furman is still only getting warmed up. Because then he digs in on whether or not Liebowitz showed a likelihood of success on the merits, and the Judge would give that question a big, giant, humongous: "Nah." Let's just say, again, that this is not the kind of language you want to see in any order regarding an issue you're a party to:
Their first attack is on the Court's factual findings about Mr. Liebowitz's lies with respect to the Mediator and his knowledge that the Photograph in question was not registered prior to filing the Complaint. But reading their motion papers, one wonders if they even read the Court's Opinion and Order. With respect to Mr. Liebowitz's lies regarding the Mediator, the Movants do little more than cherry pick a single email that they argue (unpersuasively) is more equivocal than the Court acknowledged.... In doing so, however, they all but ignore the fact that the Court's findings were based in large part on its credibility assessments, following a full-blown evidentiary hearing, of the Mediator's and Mr. Liebowitz's testimony.
Just a general suggestion should you ever be facing an angry judge: don't try to cherry pick statements out of context. It won't work. And a judge may come back with this:
Meanwhile, the Movants attack a straw man when they contend that the Court erred by finding that Mr. Liebowitz initiated this action knowing the Photograph was unregistered.... Put simply, that portion of the Court's sanctions decision was not based on a finding that Mr. Liebowitz knew when the complaint was filed that the Photograph had not yet been registered; indeed, the Court acknowledged that Mr. Liebowitz may not have personally known about the lack of registration at the time of filing.... Instead, the Court faulted Mr. Liebowitz and his firm for their inexcusable failure to conduct a reasonable investigation before and during the case.... Moreover, the Movants conspicuously focus solely on Mr. Liebowitz's knowledge when the Complaint was filed and say next to nothing about the Court's findings and analysis with respect to his or the firm's knowledge and conduct during the case. As the Court emphasized, however, whatever knowledge the Movants may have had before filing suit, they certainly knew or should have known about the untimely registration by November 2019, when defense counsel explicitly put them on notice of what turns out to have been a fatal defect in the Complaint.... At that point, if not before, the Movants had an obligation to investigate, yet they conducted no investigation whatsoever until ordered to do so months later by the Court.... To the contrary, Mr. Liebowitz affirmatively represented to the Court that the registration alleged in the Complaint was the correct one and resisted discovery on the issue.... Mr. Liebowitz did not admit, as the Movants do now, that he lacked independent knowledge of the registration, let alone acknowledge, as the Movants do now, that the allegation in the Complaint was false; had he done so, the Court and Defendant would have learned sooner that the case was fatally flawed from its inception.
How about the claims that the sanctions are "disproportionate." Again, that's not going to fly, especially when the cases they cited in support... say the opposite.
The Court is confident, however, that the record set forth in the Opinion and Order, taken as a whole, justifies the scope and severity of the chosen sanctions. Ironically, the cases that the Movants themselves cite make plain that the Court acted well within its authority in imposing the sanctions on a nationwide basis. See, e.g., Gallop v. Cheney, 667 F.3d 226, 230 (2d Cir. 2012) (requiring counsel to provide notice of sanctions imposed upon him in this case . . . to any federal court in the Circuit before which he appears or seeks to appear for a period of one year from the entry of [the] order); Enmon v. Prospect Capital Corp., 675 F.3d 138, 148 (2d Cir. 2012) (affirming the district court's sanctions order requiring a firm's lawyers to submit the order with any pro hac vice applications in the Southern District of New York).
There's also a fun footnote here:
In a footnote, the Movants suggest that the Court may have separately erred in sanctioning Mr. Liebowitz and [his firm] for their conduct before other courts. .... Putting aside the fact that a party may not raise an argument in a footnote, that argument is frivolous. The Court did not rely on the Movants' [v]iolations of orders in other litigation as the basis of its decision to impose sanctions..... Instead, it took stock of Mr. Liebowitz's long and ignominious history in evaluating what sanctions were necessary to deter further misconduct... The Court is not aware of, and the Movants do not cite, any authority for the extreme proposition that a court should blind itself to an attorney's history of misconduct in crafting appropriate sanctions.
And then there's the kicker. Judge Furman basically says, "dude, I let you off pretty easy, all things considered, and you come back with this?!?"
Indeed, if anything, the Movants' own cases suggest that the Court did not go as far as it could have, given that the sanctions are limited in time and do not limit their ability to file new cases, but merely require disclosure.... The Movants are undoubtedly correct in asserting that nationwide sanctions are rare... but that is only because they are rarely warranted. Here, they were, as the record makes clear that the Movants' practice and misconduct has begun to spread to other districts. Given that record, limiting sanctions to this District (or this Circuit) would not have been adequate to deter repetition of the misconduct; the Movants could simply file suits elsewhere. That is, the Court's sanctions ensure that, for at least a year, any courts in which the Movants are litigating are alert to Mr. Liebowitz's past activities so that they may take judicial notice of matters relevant to new litigation brought by him.... Anything less would be insufficient to deter repetition of Mr. Liebowitz's misconduct.
There's also a further note in a footnote questioning why Liebowitz is so insistent on filing cases in other districts... where his reputation has already been noted. And then adds in a dig about Liebowitz already admitting that he doesn't quite have a handle on how to manage all these lawsuits he keeps filing:
The Movants may have expanded the geographic scope of their practice in order to file more cases and make more money. Or they may have done so in an effort to escape Mr. Liebowitz's well-earned reputation as a problem in this District. (Not surprisingly, Mr. Liebowitz's reputation seems to have either preceded him or to be catching up with him. See, e.g., In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 17, at 1-2 (N.D. Cal. June 12, 2020) (noting that Mr. Liebowitz's unprofessional and blameworthy conduct is consistent with the extensive public record of discipline he has amassed in courts across the United States); Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *14 (D. Colo. May 11, 2020) (Mr. Liebowitz's continued practice of law represents a clear and present danger to the fair and efficient administration of justice . . . .).) Either way, the decision to expand the firm's practice is a strange one given Mr. Liebowitz's own acknowledgment that his business management practices are not [the] best and that things need to change.
Then there's the claim that Liebowitz made that requiring him to file a deposit copy of the copyright registration was somehow unduly burdensome. Remember, part of the problem in this case was that Liebowitz had claimed this photograph was registered, but it was not, and he had provided the registration number of a different work. So this sanction was to make sure that Liebowitz was actually doing the bare minimum required under the law -- which Liebowitz argued is somehow unfair and takes away the rights of his clients. But, as Judge Furman notes, that's not how any of this works:
Finally, the Movants assert in passing that, by requiring the Movants to file a deposit copy of a copyright registration upon the initiation of an action, the Court impermissibly alter[ed] the statutory presumption of validity in copyright cases. ... Not so. The statute at issue provides only that [p]ossession of a registration certificate creates a rebuttable presumption that the work in question that is, the work covered by the certificate is copyrightable.... That presumption, however, is not even remotely implicated by the Court's sanction requiring the Movants to verify and confirm that any work at issue in a new lawsuit is actually registered which, after all, is a statutory condition precedent to even filing a copyright claim.... Moreover, the Movants' argument falls flat for another reason: The sanction was imposed on them, based on their history of failing to investigate the evidentiary basis of their own pleadings, not on their current or future clients. That is, although violation of the sanction would subject the Movants to contempt in this Court, it would not in any way (at least absent independent action by the court presiding over the new action) affect the substantive rights of the Movants' clients themselves.
Also, the claim that it would be too costly for Liebowitz to obtain the deposit copies from the Copyright Office? That's so silly that Furman responds to it in a footnote:
On a related note, the Movants complain that the costs and delays involved in obtaining deposit copies of copyrighted works from the Copyright Office will reduce their clients' recoveries and may result in statute-of-limitations problems.... The Court's sanction may reduce some recoveries (although one would think that Mr. Liebowitz would absorb the difference rather than passing the costs on to his clients), but there are reasons to think the Movants overstate the potential impact. By Mr. Liebowitz's own admission, he settles cases in the low thousands or tens of thousands of dollars,... a far cry from the $200 to $1,200 cost of obtaining a deposit copy.... Moreover, the sanction could serve to reduce the Movants' overall expenses, given the substantial monetary sanctions that Mr. Liebowitz routinely incurs. Indeed, this is at least the third time that he and his clients have been made to pay approximately $100,000 due to his misconduct.... In any event, the costs are the price of the Movants' misconduct and, for reasons already stated, they are necessary to deter and prevent future misconduct.
He also (in the same footnote) rejects the claim that having to get the deposit copy will create unnecessary delay, since you have three years to file a copyright infringement lawsuit, but does agree to modify the agreement just to clarify that point:
That said, to ensure that the Court's sanction does not unintentionally harm a client through no fault of his or her own, the Court modifies the sanction (Sanction 6) to include the following proviso: In any case in which the Movants have a good-faith belief that waiting for deposit copies might cause their client's claim to be barred by the statute of limitations, they may file, in lieu of the deposit copies, an affidavit (1) informing the court of such good-faith belief; (2) confirming that they have applied for, and are awaiting, deposit copies of the work(s) at issue; and (3) representing that they will promptly file such copies promptly upon their receipt.
Then there's the public interest question regarding the sanctions. Liebowitz claims they're not in the public interest. Take a wild, wild guess where the court came down on that. You may be a psychic, because I'm pretty sure you got this one right:
In the Court's view, there is a strong public interest in shining a bright light on Mr. Liebowitz's extraordinary record of misconduct and in ensuring that both courts and his clients, current and future, are aware of that history so that they can be vigilant in scrutinizing Mr. Liebowitz's conduct....Against that strong public interest, the Movants cite the interest in the continuation of [their] law practice because they have carved out a successful law practice that provides a realistic prospect of recovery to copyright plaintiffs in relatively low-dollar infringement cases that otherwise could go unfiled.... But the sanctions do not bar the Movants from continu[ing their] law practice, and Movants' conclusory assertion that such cases would not be filed without them is unsubstantiated. (Moreover, to the extent that the Movants' success is built on unsavory business practices or conduct unbecoming an officer of the court, it is, of course, not at all in the public interest for it to be perpetuated.) Nor do the Court's sanctions deprive photographers of the opportunity to hire Mr. Leibowitz or his firm to bring suit. The sanctions merely ensure that such photographers do so with their eyes wide open, cognizant of the fact that they could be left holding the bag on a hefty attorney's fee or sanctions award, see, e.g., Rock, 2020 WL 468904, at *2 (ordering Mr. Liebowitz's client to pay the defendant's attorney's fees over $100,000), and of Mr. Liebowitz's tendency to cut and run, perhaps sacrificing their interests in the process, when he feels that the heat is on him personally, see Usherson, 2020 WL 3483661, at *1. In short, insofar as the sanctions provide Mr. Liebowitz's clients and courts with more information about his past, it is in the public interest for them to go into effect now, while the Grievance Committee ponders Mr. Liebowitz's fate longer term.
In short: don't try to play games with a federal judge.Bringing it all around:
In sum, the Movants' eleventh-hour request for a stay of the Court's sanctions pendingappeal is denied and the Court's sanctions remain in full force and effect....Nor will the Court grant the Movants' alternative request for an administrative staypending the Circuit's decision on whether to grant a stay pending appeal.... Grantingan administrative stay would obviously ease the burden on the Circuit in the event that it is calledupon to decide if a longer stay is warranted. In the Court's view, however, that virtue isoutweighed by the vice of rewarding an appellant for dilatory conduct. Deadlines matter. Andhaving given Mr. Liebowitz and his firm sufficient time to either comply or seek a stay, theCourt should not be forced to alter its deadline merely because they waited until the last minuteto do the latter. Instead, in the event of an appeal from this Order, the Court will leave it to Mr.Liebowitz and his firm to explain to the Circuit why they put that court in the position ofdeciding whether to grant a stay with only a few days remaining on the clock.
It's pretty crazy that Liebowitz always seems to know when to cut and run when he's put his own clients into an untenable position, but when his own ass is on the line, he has a history of digging deeper. I assume this one is not over yet.

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posted at: 12:00am on 24-Jul-2020
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Ch-Ch-Ch-Chia Pet Just Applied For Trademark On Jingle For Some R-R-R-Reason

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I'll forgive you if you haven't spent a lot of time thinking about Chia Pets lately. This is, after all, 2020 and not the 90s and we a couple of things going on that have probably held your attention. If you're so young that you don't remember these things, they're essential potted plants shaped like a variety of animals, objects, and celebrities, laden with grass seeds that grow and look like hair and oh my god why is this a thing? Regardless, the product, first developed in the 70s, became popularized in the 90s and was advertised with a well-known jingle: ch-ch-ch-Chia! While Chia Pets are still sold today, they are no longer the cultural icon that they were in these earlier times.And yet, for some reason, it was only this past week that the folks behind Chia Pets decided to try to trademark that famous jingle.

Standard Character Claim: NoMark Drawing Type: 6 - NO DRAWING-SENSORY MARKDescription of the Mark: The mark consists of the sung words CH CH CH CHIA in the notes E4, E4, E4, A4, G4.
Now, while that trademark description does indeed look decidedly silly, it certainly is possible to trademark sounds and jingles. The bar for trademarking sounds is a bit higher than other marks, mostly centering on the public's association with a sensory mark and a product, but Chia Pets' jingle probably fits the bill.
This means that sound marks – just like visual trademarks – may be easily registered when they are:“arbitrary, unique or distinctive and can be used in a manner so as to attach to the mind of the liste­ner and be awakened on later hearing in a way that would indicate for the listener that a particular product or service was coming from a particular, even if anonymous, source.”
It's worth noting that any jingle like the above would also be immediately covered by copyright protection upon creation. That's one of the many factors that has me wondering why in the world this trademark had to be applied for in 2020. Add to that the waning notoriety of Chia Pets and its jingle generally, along with my having never heard of anything remotely like any competitors in the "Clay planters for flowers and plants" industry trying to use the jingle, and this all becomes all the more confusing.Why, after fifty years in business and decades of using this jingle, does it need to suddenly be protected by trademark law?

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posted at: 12:00am on 24-Jul-2020
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Stone Brewing, One-Time Battlers Of 'Big Beer', Out Here Trying To Cancel Non-Confusing Trademarks

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In the past few years, as the craft brewing industry exploded, it became something of a regular thing for us to write about one craft beer trademark dispute or another. The idea is that as the industry has grown, it's become corporatized. The once congenial atmosphere of the industry, one which saw breweries heavily borrow from one another, or skirt the line of potential confusion, devolved into suited lawyers arguing about beer brands. And if that doesn't make you sad, you simply have no soul.Stone Brewing was once one of the smaller craft breweries out there and built a reputation for itself for taking on "big beer." That stance morphed in 2018 into a lawsuit against MillerCoors over the latter's rebranding of Keystone beer into "Stone" on its can labels.

In March 2020, a federal court rejected both sides’ motions for summary judgment and the case will now move to trial in October 2020. Stone Brewing is seeking to recover $1 billion in damages in regard to infringing sales. Coincidentally, in the lawsuit, MillerCoors argues that the San Diego-based craft brewery’s trademark of the word “stone” f is “conceptually weak because at least 10 other craft breweries actively use the word ‘Stone’ in their name."
And that pushback from MillerCoors appears to have been the catalyst for Stone morphing, just like its industry has, into one of corporate lawyering and aggressive trademark enforcement. Since March, it appears that Stone has gone hunting for other breweries that have been using the word "stone" in their names and, in several cases, is attempting to have that trademark cancelled.
First reported by Kindsey Bernhard of Kentucky Sports Radio, who uncovered a series of tweets stemming from Patrick Fannin of Dreaming Creek Brewery in Richmond, KY, Fannin explains that Stone Brewing has issued a trademark cancellation request against Sawstone Brewing for their use of the word “stone” in the brewery’s name. Stone Brewing first filed for their mark of the word in 1997.Upon further investigation of the US Patent and Trademark Office, the Sawstone Brewing team discovered that Stone Brewing has also issued similar trademark cancellation requests in approximately 100 instances this year where entities have used the word “stone” or “bastard” in either their alcohol-related business or products. Stone Brewing is also the creator and trademark holder for Arrogant Bastard Ales.
And so here we are. The once-little-guy brewery that took on MillerCoors, and in some circles was applauded as a David taking on Goliath, is now just a Junior Goliath taking swats at all kinds of Davids.And, as should be obvious, this sort of shotgun approach to trademark cancellation is complete horseshit. If Stone were so concerned and injured by these uses of the word "stone" by other breweries, or if there were any actual customer confusion to have here, why now? Where is the evidence of harm and confusion? If it exists, why hasn't Stone sued before?Or, to take the least charitable view, is Stone simply going after its fellow craft breweries to bolster its seven-figure claims lawsuit against MillerCoors?

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posted at: 12:00am on 23-Jul-2020
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Content Moderation Case Study: Can An Open Encyclopedia Handle Disinformation? (2005)

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Summary: Wikipedia was founded in 2001 and the open encyclopedia that anyone could edit grew much faster than most people (including its founders) expected. In 2005, one of the first big controversies concerning disinformation on Wikipedia arose, when journalist and political figure John Seigenthaler wrote an article in USA Today calling out claims on Wikipedia that, among other things, he was involved in the assassinations of both John F. Kennedy and Robert F. Kennedy (for whom he worked for a time).The entry in question read:

John Seigenthaler Sr. was the assistant to Attorney General Robert Kennedy in the early 1960s. For a short time, he was thought to have been directly involved in the Kennedy assassinations of both John, and his brother, Bobby. Nothing was ever proven.John Seigenthaler moved to the Soviet Union in 1972, and returned to the United States in 1984.He started one of the country's largest public relations firms shortly thereafter.
Two months before publishing the USA Today article, Seigenthaler reached out to Wikipedia cofounder Jimmy Wales and requested that his entry be deleted. It was, but other Wikipedia users soon brought it back, leading Seigenthaler to publish the story.
Seigenthaler referred to this entire incident as character assassination and it suddenly put the fact checking of Wikipedia into tremendous focus, leading some to question whether or not the site could even survive.Seigenthaler's article raised many questions about Wikipedia, how it was edited, and how reliable it was as a research tool. For years, Seigenthaler insisted he wouldn't edit his own entry because it would lend legitimacy to the service that he wanted no part of.The controversy received widespread media coverage, and raised many questions about how Wikipedia can and should deal with misinformation on its platform while staying true to its principles and concept as an encyclopedia built on anyone's contributions.Decisions to be made by Wikipedia:
  • Should it step in and edit Seigenthaler's entry?
  • Should it block attempts to restore the false information?
  • Should it block further edits and lock down Seigenthaler's page?
  • Should it change its overall policies regarding open editing?
Questions and policy implications to consider:
  • Are there ways to limit vandalism on an open system?
  • Were certain pages at greater risk of false information that others? If so, how should that difference be handled?
  • Will any changes decrease the trust people have in Wikipedia?
  • Will any changes increase the trust people have in Wikipedia?
Resolution: In some ways the controversy itself solved the problem in that the widespread attention resulted in many Wikipedia editors/users making sure that Seigenthaler's entry was accurate. However, it also prompted Wikipedia to implement some wider changes, including restricting the ability to create new pages to registered users, and creating a new editing policy regarding biographies of living persons. A few years later, it adjusted the policy some more to push for a more thorough review of edits to pages about living individuals.Just weeks after the incident and controversy, Nature published a study claiming that Wikipedia was equally as reliable as the esteemed Encyclopedia Britannica.Seigenthaler continued to question the entire Wikipedia concept for years. Separately, while in the USA Today piece, Seigenthaler detailed his failed efforts to track down who had made the edits (including explaining how he considered possible legal action), the person who created the page, Brian Chase came forward a few weeks after the story went viral, saying it was just a joke that he regretted.

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posted at: 12:00am on 23-Jul-2020
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Tech And COVID-19: MLB Rolls Out Remote Cheering Function In Its MLB App

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As we continue navigating this new world full of COVID-19, mostly alone due to the laughably inept response from our national leadership, there's a certain humor to the ongoing push for a "return to normalcy." What makes it so funny is how completely clear it is that "normalcy" is going to be anything but normal. Go back to work, but wear a mask and stay the fuck away from your coworkers. Get your kids back to school, but maybe not, also masks, and remote learning, and they have to eat their lunch in their classrooms. Restaurants are open, but only outside, with less people, and there will be temperature checks.And then there are the sports. Collegiate sports are shutting down with the quickness, but the professional sports leagues are opening. The NBA is back, but only in Orlando, which is basically coronavirus ground zero. The NHL is coming back, except a ton of players are testing positive.And then there's baseball. Yes, Major League Baseball is back, but masks make an appearance and, most importantly, there are no crowds. If you aren't a baseball fan, I'll forgive you for not understanding this, but crowds are a huge deal for baseball. Part of the ambiance of the game, be it in person or on television, is that low level din of crowd noise, vendors yelling out, and the like. Not to mention the roar or boos of crowds during peak excitement. With no crowds, the soundtrack of the summer is just the lead singer with no instruments backing him or her up.MLB's solution to this was to pipe in crowd music. With audio files at least in part from Sony's MLB The Show video game series, teams were encouraged to add their own flavors to the audio files and then pipe them into stadiums. This helped, of course, but how was the crowd noise supposed to artificially change based on what occurs on the field?Turns out that MLB actually has a solution for that. And it's awesome.

Fans will have the opportunity to boo the Houston Astros during the 2020 Major League Baseball season after all.As Darren Rovell of Action Network shared, the league will incorporate how many fans are using its app and cheering or booing a specific team into the piped in crowd noise it will use in empty stadiums amid the COVID-19 pandemic.
Very cool. Essentially, MLB's app will let users note which team they're supporting and then allow them to "cheer" or "boo" via the app. Their choices will then be reflected in the crowd audio that is piped into the stadium and heard on television broadcasts. Staff at the stadium will reflect viewer choices in near real time.
"Ballpark staff uses the 'real-time' fan sentiment to control/vary noise variation/levels at the ballpark," is how the league described how teams will use the feature.It won't exactly be the raucous environments of Wrigley Field or Fenway Park, but it is at least a way for fans to express their loyalties while they are watching from home instead of the bleachers.
I love this sort of thing. Still, one wonders if MLB is prepared for the potential of rival fuckery. After all, it might just be possible to setup an automated system that created a bunch of accounts for a rival team and then simply choose to boo all the time, ruining the broadcast. Hopefully the league has a method to guard against that sort of thing.But if they don't, this is me soliciting a guerrilla hacking group so we can go screw around with White Sox crowd levels.

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posted at: 12:00am on 22-Jul-2020
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DOJ Indicts Cyprus National Who Apparently Hacked Ripoff Report And Deleted Negative Reviews

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We've covered incidents involving Ripoff Report for several years here at Techdirt. In most of the cases that we've covered, Ripoff Report has been the target of bogus DMCA takedowns and libel lawsuits from entities who would do pretty much anything to see negative reviews disappear.Ripoff Report has plenty of critics. The company refuses to take any review down, even if the reviewer is the one asking for it to be removed. People have accused Ripoff Report of engaging in extortionate behavior by encouraging third parties to flood complaining companies (and individuals) with negative reviews. And the site's hardline stance of review removal (it simply never happens) hasn't earned it much sympathy in other countries where Section 230 immunity and other free speech-friendly laws aren't in effect.But the latest news involving Ripoff Report is some of the weirdest. And it comes from an unusual source: the Department of Justice. A Cyprus national with links to a California reputation management company has been extradited to the US to face criminal charges related to the malicious hacking of Ripoff Report.

The indictment alleges that on Oct. 30, 2016, [Joshua] Epifaniou obtained unauthorized access to the database of Ripoff Report (ROR), a company located in Phoenix, Arizona, through a brute force attack. A brute force attack is a trial-and-error method used to obtain information, such as a user password or personal identification number. Epifaniou allegedly used the attack to successfully override ROR’s login and password protection to access its database through an existing account for a ROR employee. On Nov. 18, 2016, Epifaniou emailed ROR’s CEO using an email address, threatening to publicly disseminate stolen ROR data unless the company paid him $90,000 within 48 hours. According to the indictment, Epifaniou emailed again the following day with a hyperlink to a video recording demonstrating Epifaniou’s unauthorized access to the ROR CEO’s account.  
This would be on top of Epifaniou's other alleged extortion schemes. He also illicitly harvested personal information from a number of other sites, including those belonging to an online game publisher, an employment service, and a sports news site run by Turner Broadcasting. Epifaniou and his conspirators emailed users of these sites, threatening them with exposing sensitive data unless a ransom was paid.Trying to extort Ripoff Report's site owner wasn't the only thing Epifaniou did. He also leveraged his illicit access to the review site to benefit California-based SEO Company's customers, ensuring a healthy payout for himself in the process. From the indictment [PDF]:
On or about November 8, 2016, SEO Company negotiated a "reputation management service agreement," charging the client an initial $4000 for removal of a complaint from ROR.On or about November 9, 2016, EPIFANIOU and his co-conspirator via an instant messaging service discussed their plan to remove data from the ROR website for a fee but pretend to SEO Company's clients that it was accomplished through court orders rather than computer hacking.[...]On or about February 13, 2017, SEO Company negotiated a "reputation management service agreement" with another client, charging an initial $4,000 for removal of a complaint from ROR.On or about February 14, 2017, EPIFANIOU and his co-conspirator via an instant messaging service discussed the status and profits of their ROR hack, and their intent to hack-additional customer complaint and review websites (including through website vulnerabilities and stolen employee login credentials).On or about March 3, 2017, SEO Company negotiated a "reputation management service agreement" with another client, charging an initial $4,150 for removal of two complaints from ROR.On or about March 31, 2017, SEO Company negotiated a "reputation management service agreement" with another client, charging $11,000 for removal of two complaints from ROR.On or about April 27, 2017, EPIFANIOU and his co-conspirator via an instant messaging service discussed another method for unauthorized access to ROR's database, "in case the original exploit gets patched so we can drag this out for another at least 6-7 months."Between October 2016 and May 2017, EPIFANIOU and his co-conspirator removed at least 100 complaints from the ROR database, charging SEO Company's clients approximately $3,000 to $5,000 for removal of each Complaint.
And that's how you remove a negative review from Ripoff Report. All you need is a willing conspirator, admin-level access to the site itself, and the willingness to put your freedom on the line to help companies patch up their reputations. It's not a great plan, but it worked right up until it didn't. And that six-month run was enough to delete 100 negative reviews and generate at least $300,000 in payments from SEO Company customers who are now linked to illicit hacking and ransom demands. Fun stuff.

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posted at: 12:00am on 22-Jul-2020
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Yet Another 'Stranger Things' Copyright Suit Over A String Of Likely Non-Protectable Elements

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As one of, if not the, largest player in the streaming platform wars, Netflix is oft the target of copyright infringement threats and lawsuits. These actions against it have by and large been found to be absolutely baseless. Whether it's estates of long-dead authors, private prisons, or the brother of dead drug kingpin Pablo Escobar, there are plenty of folks out there who see a wealthy company on the rise and try to get a piece of that cash for themselves by making dubious intellectual property claims.But if Netflix is the biggest player in streaming, then certainly its hit show Stranger Things is its most notable contribution. And, so, it's no surprise that the show has faced copyright challenges in the past and is being sued once again by someone claiming the idea for the show was his first.

A lawsuit filed by Irish Rover Entertainment on Wednesday (July 15) in California federal court claims that Stranger Things has copied a number of things from Totem, a screenplay written by Jeffrey Kennedy (via TheWrap).The suit alleges that the Netflix show lifted the “plot, sequence, characters, theme, dialogue, mood, and setting, as well as copyrighted concept art” from Totem.
The filing itself is embedded below, but it's exactly what one who follows this sort of thing would expect. Rather than alleging any concrete examples of directly copying Totem, the suit's allegations string together a zillion elements of supposed copying, none of which would be actionable on their own. This is a common tactic, with courts in the past having found that the composition of otherwise unprotectable elements can be afforded copyright protection if that composition on its own is creatively sufficient in a unique way. It's something roughly like how you can't copyright a single note from a guitar, but an original composition of notes can be protected.But about those elements cited, well, have a look for yourself at some examples.
Some of the events in Totem take place in the woods where Agent Sam Miller, under Azrael’s control, chases Kimimela. Similarly, in Stranger Things, Eleven is also pursued by the “Bad Men” through the woods.
...okay, but...
Characters interact with Azrael in an alternate plane. The interaction is marked by Lightning. Characters interact with the Shadow Monster in an alternate plane is also marked by lightning.
Well, yeah, it's a creepy thriller movie about the supernatural, so you'd expect-
In Totem, the tag line “promise?” is used as a literary device in the dialogue throughout the script. Multiple characters use the word “promise” to either verbally ask or verbally commit to an agreement. This dialogue tag is used countless times in the story and often marks the end of a scene and creates a transition. In Stranger Things, the tag line “promise?” is used as a literary device in the dialogue throughout the series. Multiple characters use the word “promise” to either verbally ask or verbally commit to an agreement. This dialogue tag is used countless times in the story and often marks the end of a scene and creates a transition.
But putting "promise?" at the end of dialogue is really common in both fiction and in life, so-
Sam Miller is an FBI agent who is involved in a crash near an industrial area. This is when Azrael takes control of Sam. Billy Hargrove also is involved in an accident in an industrial area. This is when the Shadow Monster takes control of Billy’s mind and forces him to do his bidding.
Those don't actually seem that similar at all?It can be easy to get fooled by this sort of thing. What the lawsuit is listing is a bunch of ideas, some of which have similarities between Totem and Stranger Things. But there is an idea/expression dichotomy in copyright. Thematic elements, generic settings, and even character traits aren't afforded copyright protection. Instead, the specific expression of those ideas is. So, when Stranger Things' character isn't an FBI agent and is instead a rogue thug of a lifeguard, you don't have a copyright claim there.And yet I listed only a small sample of the accusations in the filing. The hope with this sort of thing is that if you string together enough vague similarities among the non-protected elements, you can convince the court or jury that copying of the composition had been committed and that composition is what gets copyright protection. It's a strategy that rarely works, however, as seen in a previous lawsuit over Stranger Things.
This isn’t the first time the Duffer Brothers have been sued over the creation of Stranger Things. In 2018, the pair were accused of stealing the show’s concept by filmmaker Charlie Kessler. Kessler produced a short film in 2012 called Montauk and alleged that he and his agents pitched the idea of turning it into a full series to the Duffer Brothers in April 2014.Kessler dropped his lawsuit the day before it was set to go to trial.
Here's a hint: when several people can file lawsuits against a single work claiming copying of essentially the same elements, then you're suing over non-protectable things.Besides, everyone knows Stranger Things got all its ideas from Dungeons & Dragons.

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posted at: 12:00am on 21-Jul-2020
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South Carolina Supreme Court Says Cops Aren't Getting Any No-Knock Warrants Anytime Soon

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Earlier this year, Louisville (KY) police officers killed an unarmed woman during a no-knock drug raid. Breonna Taylor was killed after her boyfriend, Kenneth Walker, opened fire on SWAT officers Walker believed were criminals entering their home. The officers claimed they had announced their presence before entering. A 911 call placed by Walker -- a licensed gun owner -- indicated no warning had been given.

"I don't know what happened ... somebody kicked in the door and shot my girlfriend…"
This completely preventable tragedy again prompted discussions of no-knock warrants and their use by law enforcement. This latest killing continued the long narrative of violent actions by drug task forces, who supposedly avail themselves of no-knock raids to increase the safety of officers and occupants. But all no-knock raids seem to do is increase the chance officers will provoke a violent reaction they can use to justify the killing of anyone on the premises. The raid that killed Breonna Taylor was a complete failure. The suspect being sought wasn't in the house and no drugs were found.A few small reform efforts targeting the use of no-knock warrants have been made. The Houston Police Department had no choice but to rewrite its rules after a no-knock raid ended with two citizens dead, five officers wounded, and two of those officers hit with multiple criminal charges.A judge in South Carolina has taken it upon himself to step up and address the huge problem local law enforcement apparently isn't quite ready to confront.
State Supreme Court Chief Justice Donald Beatty late Friday afternoon ordered state judges and magistrates to stop issuing “no-knock” search warrants to police.[...]Beatty’s order said that the majority of state search warrants in South Carolina are issued by magistrates, the lowest rank of judicial authority. But a recent survey, Beatty wrote, revealed that “most (magistrates) do not understand the gravity of no-knock warrants and do not discern the heightened requirements for issuing a no-knock warrant.”
It's not a ban. It's a moratorium. But it should decrease the chances someone in South Carolina will be needlessly killed by overzealous drug warriors. The short order issued by Judge Beatty says no no-knocks warrants will be approved until there are some clear ground rules in place.
IT IS ORDERED that a moratorium upon the issuance of no-knock warrants by all circuit and summary court judges of this state take effect immediately and remain in effect until instruction is provided to circuit and summary court judges statewide as to the criteria to be used to determine whether a requested no-knock warrant should be issued. This instruction will be provided by the South Carolina Judicial Branch.
It also points out that judges have been handling these requests carelessly. And this carelessness is killing people.
It further appears that no-knock search warrants are routinely issued upon request without further inquiry. In recognition of the dangers that the execution of no-knock warrants present to law enforcement and members of the public, and in order to ensure that these warrants are issued based upon the proper constitutional and statutory criteria,I FIND it necessary to address the issuance of no-knock search warrants by circuit and summary court judges statewide.
It has been addressed. No-knocks are no-go in South Carolina until further notice. Cops will just have to do warrant service the old fashioned way -- one that appears to be far less dangerous than the supposedly "safer" option.

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posted at: 12:00am on 21-Jul-2020
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Masks & More: Techdirt Logo Gear Is Now On Threadless

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Get your Techdirt Logo Gear in our store on Threadless »Lots of people have been buying our newly-launched face masks on Threadless, so we figured it was time to make the classic Techdirt logo gear available on the platform. You can now get face masks in both our logo gear styles — the standard logo and the big logo — with two different kinds of masks available, as well as youth sizes.

Plus, as with all our designs, there's a wide variety of gear available: t-shirts, hoodies, sweaters and other apparel — plus cool accessories and home items including buttons, phone cases (for many iPhone and Galaxy models), mugs, tote bags, and stylish notebooks and journals. And you can still get all our other popular designs:

As always, all the profits from gear sales help us keep Techdirt going and continue our reporting through this challenging pandemic situation and beyond. You can also check out our list of all the different ways to support Techdirt with a bunch of options for readers to help us out and get something cool or useful in return!

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posted at: 12:00am on 19-Jul-2020
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Internal Investigation Shows The Houston PD's Narcotics Units Was An Unsupervised Mess

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The Houston PD decided to take a look at itself after a botched drug raid ended with two people killed by officers. The raid was predicated on pure bullshit. Officer Gerald Goines turned two Houston residents into dangerous drug traffickers by using a nonexistent confidential informant, drugs Goines had stashed in his squad car, and a narrative unsupported by any actual facts. Claims of heroin trafficking by a violent drug dealer were undercut by the raid itself, which turned up no heroin or the gun the (fake) informant claimed he saw.Officer Goines is now former officer Goines. He's facing multiple state and federal charges, including two counts of felony murder. This sort of thing doesn't just happen. It's not an anomaly formed in a pristine environment. The almost-nonexistent oversight of the Houston PD's drug warriors led directly to Goines' deadly concoctions. An internal review of the drug unit by the Houston PD shows officers operated with indifference, carelessness, and negligence. Officer Goines may have been the worst of the 175 officers, but he was far from the only one abusing the system to engage in unsupervised drug warrior freelancing. (via Grits For Breakfast)

The report’s authors wrote that while reviewing Goines and Bryant’s casework from 2016 to 2019, they found 404 errors and a “high level of administrative errors and overall lack of attention to detail” while completing required paperwork.Auditors found that in the 84 casefiles they reviewed, Goines submitted evidence late 48 percent of the time (40 times) and made unauthorized informant payments 18 times. A quarter of the cases he filed -- 21 -- did not have tactical plans, the critical documents that officers create showing how they plan to carry out a search warrant raid.Four times, investigators found cases with no search warrant on file. Three cases included problems where there was inadequate documentation about the case’s informant. Two dozen cases lacked case review sheets. Auditors found discrepancies in Goines’ expenses 23 times. In two cases, there were discrepancies in evidence, and another two cases, evidence submission slips were missing.
The full report [PDF] breaks this down by officer. It appears Officers Goines and Bryant had developed a working relationship that made bending/breaking rules easier. When working together, they relied heavily on "controlled buys." This made it easier to obtain cash from supervisors who seemed unwilling to ask questions -- even when the officers failed to submit paperwork or justify expenditures. In some cases, it appears payments to CIs were broken up into smaller chunks to avoid mandated supervisory reviews. In other cases, Goines and Bryant did not get approval for payments or paid well above the going rate for information leading to very small drug busts.The sloppiness of officers' work was indirectly encouraged by the indifference of their supervisors.
The audit also found “overwhelmingly” the need to improve administrative procedures, specifically, supervisory review of case files and case tracking. About 25 percent of the time, supervisors failed to sign case file review sheets, and auditors found many cases were turned in six months to a year late -- far longer than the 10 working days allotted by policy.
And the problems go all the way to the top. Police Chief Art Acevedo has been holding onto this report for weeks, refusing to allow the public to see just how corrupt and unrestrained his narcotics division is. Acevedo finally released the report (via Twitter) after the Houston Chronicle released a series of articles discussing the department's lack of transparency. This unconventional release may have been additionally prompted by another set of criminal charges being brought against police officers by the Houston DA.
Prosecutors probing a Houston police narcotics unit announced charges against six former officers tied to a fatal 2019 drug raid. Harris County District Attorney Kim Ogg accused the former officers of lying on police reports and other documents as part of a scheme to enrich themselves.[...]Besides the new charges Goines and Bryant face, Ogg announced charges against former HPD Lt. Robert Gonzales, Sgts. Clemente Reyna and Thomas Wood and Goines’ old partner.
It appears several officers and supervisors in the Houston Police Department feel this isn't going to end well for them. They're getting out before the department gets to them.
In the months after the raid, Goines retired from HPD. Bryant also retired, along with Goines’ other former partner, Hodgie Armstrong. Three supervisors — Sgt. Clemente Reyna, Sgt. Tommy Woods and Lt. Robert Gonzales also retired. Former Narcotics Commander Paul Follis was transferred to a different post, the Hobby Airport Division.
There's some good news at the end of all of this. Some reforms are now in place to reduce the likelihood of this sort of tragedy repeating itself. A supervisor is now required to be on the scene during warrant deployment. No-knock warrants have to be approved by the chief himself (or his "designee"). Officers can no longer use municipal court judges for warrant approval. And, finally, body cameras are mandatory for all drug warrant service. They must be activated before officers leave their vehicles and cannot be shut off until the scene and all suspects are secured. All evidence collected must be logged and photographed. All interactions with informants must be documented and, more importantly, all informants will be subject to periodic background checks and random face-to-face interviews with PD supervisors.This may fix some things going forward. But a more permanent solution would be to dismantle the current unit and reform it using other officers -- officers who've proven worthy of trust. Officers who've been in a system this devoid of oversight and accountability are pretty much ruined. They need to be given the shortest leash and the least amount of responsibility until they've proven they can handle more. Without a major overhaul, the next horrendous abuse of power is still an inevitability.

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posted at: 12:00am on 18-Jul-2020
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Content Moderation Case Study: Dealing With Misinformation During A Pandemic (2020)

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This series of case studies is published in partnership with the Trust & Safety Foundation to examine the difficult choices and tradeoffs involved in content moderation. Learn more »Summary: In early 2020, with the world trying to figure out how to deal with the COVID-19 pandemic, one of the big questions faced by internet platforms was how to combat mis- or disinformation regarding the pandemic. This was especially complex, given that everyone -- including global health experts were trying to figure out what was accurate themselves, and as more information has come in, the understanding of the disease, how it spread, how to treat it, the level of risk, and much, much, has kept changing.Given the fact that no one fully understood what was going on, plenty of people rushed in to try to fill the void with information. Most social media firms put in place policies to try to limit or take down misinformation or disinformation using a variety of policies and tactics. But determining what is misinformation as opposed to legitimate truth-seeking can be very tricky in the midst of a pandemic.In late March, as the pandemic was hitting full swing, an article appeared on the website Medium by Aaron Ginn, a self-described Silicon Valley growth hacker, arguing that the response to COVID-19 was overblown and driven by hysteria. The piece included many citations of credible data and reports, but also included a few quotes significantly downplaying the risk of COVID-19, including saying that its transmission rates are very similar to seasonal flu.The story started to spread widely, mainly after a number of Fox News hosts started tweeting it. As the story got more and more attention, Carl Bergstrom, a professor of biology at the University of Washington, decided to critique Ginn's article in great detail via an extended Twitter thread. Bergstrom makes a fairly compelling case that Ginn's lack of expertise in epidemiology led him to making a number of mistakes in his analysis, in particular, not understanding how viruses spread, and how that information is tracked. He also argued that Ginn cherry-picked certain data to support a thesis. Bergstrom and others started arguing that Ginn's Medium piece was (perhaps not intentionally) misinformation.Decisions to be made by Medium:

  • Should the piece be allowed to remain on the platform or should it be taken down?
  • Are there alternatives to taking the piece down or leaving it as is?
  • If the piece is taken down, should the user be banned?
  • What policies do a potentially well-meaning, but possibly incorrect, piece about a pandemic violate?
Questions and policy implications to consider:
  • How do you distinguish mis- and disinformation from potentially well-meaning, but inexperienced analysis?
  • Should earnest but incorrect information be allowed?
  • How does that analysis change when human health is at stake?
  • Do pieces like this need to be judged against official government and healthcare sources? If so, how is that reconciled with constantly updated information from those sources?
  • If articles like this are taken down, does that create more credibility for articles that remain on the site?
  • If articles like this are left up, does that create more credibility problems for other articles on the site, that may have a much stronger and more competent analysis?
  • Does taking down an article like this create political backlash?  If so, does that matter?
  • Do the site and its management want to feel responsible if people take bad health advice that was posted to their site, and possibly come to harm from it?
Resolution: Medium chose to quickly take down Ginn's piece about a day after it went up and 13 hours after it went viral. In fact, the article was taken down while Bergstrom was writing out his tweet thread critiquing it. Indeed, Bergstrom ended his thread early upon learning that the article was taken down.That was not the end of things, however. The article was reposted to the site ZeroHedge, and copies were stored and reposted in other places as well. It also created a short-lived uproar among those who felt that Medium's moderation decision was unfair. The Wall Street Journal celebrated Ginn, saying that after being targeted for censorship, it only made Ginn more influential. Other publications, including the NY Times, the Washington Post, and Slate, all wrote about the dangers of amateurish analysis in the midst of a pandemic.Ginn, at one point, appeared to be fine with Medium's decision, saying that internet platforms are free to associate with whom they want, (though he has since removed the tweet saying that). He has continued to use other social media to argue that the claims about COVID-19 were overblown.

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posted at: 12:00am on 18-Jul-2020
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R&A's The Open Golf Tournament This Year Will Be Virtual In Multiple Ways And It's Going To Be Amazing

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For golf fans such as myself, one of the great joys over the past few weeks has been the return of live golf to the television screen. As one of the sports that is most naturally aligned with the need for social distancing and crowdless events, it was also one of the first to come back. Still, with COVID-19 running rampant throughout the world and America in particular, not every last thing is coming back. For instance, the pandemic has led organizers for the R&A's signature gold event, The Open in the U.K., to at least delay it from its July 16th start, or possibly cancel it altogether.With that being said, what do sporting event organizers in 2020 do when they cannot play their IRL sports tourneys? Well, for one, they turn to esports of course! R&A has announced it will hold an e-Open event, using TopGolf's WGT game to allow literally anyone to compete in this year's Open.

In a first for The R&A, it’s turning to esports to launch its inaugural e-Open. Sponsored by Mastercard, the virtual stroke play tournament–which takes place between July 13 and September 8–is being powered by WGT by Topgolf, “the world’s most realistic free virtual golf game”, across PC and mobile devices.The R&A is actively encouraging players of all skill levels to take part–returning to its roots as an “open” championship. Much like its real-life counterpart, The e-Open’s course will be Royal St George’s in Kent, England, where The 149th Open will be played next year.
Suddenly, The Open has become available to the entire world, whether you're a golf fan or not. It's a way to keep to the tradition of having The Open. And actually harkening back to its roots. It was entitled "The Open" for a reason, after all, as it was originally supposed to be open to all players that qualify to play in it. This dive into virtual sports to make up for the lack of IRL sports is one we've been covering for some time now, but the inclusion of more participation by the general public is a fantastic method for connecting with golf fans during these incredibly frustrating times.But R&A didn't stop there. Using modern technology, the organizers also announced a televised event it's calling The Open for the Ages. Using video-editing tools, and again looking to get golf fans directly involved, this broadcast will virtually pit legends of golf across multiple decades against one another in a single Open championship.
From Thursday 16 to Sunday 19 July, this concept will be brought to life through ‘The Open For The Ages’ – an innovative project culminating in a three-hour broadcast production that will show many of the best players of the last 50 years battling it out for the Claret Jug at the home of golf.Real footage from past Championships at the Old Course has been expertly edited and woven together with modern graphics and new commentary to produce a compelling narrative, designed to recreate the drama of an Open final round. What is more, this unique event will give fans the opportunity to experience the likes of Tiger Woods, Jack Nicklaus, Seve Ballesteros, Sir Nick Faldo, Tom Watson, Rory McIlroy and more all contending together at St Andrews for the first time.
The "winner" of The Open for the Ages will be based on a combination of actual scoring by modern and historical players on this iconic golf course combined with fan voting. It's a very, very cool idea and again a great way to engage fans when no actual IRL golf can be played.
The winner of ‘The Open For The Ages’ will be determined by a data model developed by NTT DATA, which combines the votes of over 10,000 fans with player career statistics to calculate the victorious golfer.TheOpen.com and The Open’s YouTube and Facebook channels will provide comprehensive coverage of ‘The Open For The Ages’, including in-play clips, leaderboards and highlights of the first three rounds from Thursday 16 July to Saturday 18 July.
If you're not a golf geek like me, I don't expect you to be shaking with excitement the same way I am. However, you should be able to recognize both how amazing it is to see technology used this way to fill in the gaps during a pandemic, and the innovative ways R&A is fulfilling its mission to keep golf fans engaged during these troubled times.

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posted at: 12:00am on 17-Jul-2020
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Petnet 'Smart' Feeder Customers Are Stuck In 'Internet Of Broken Things' Purgatory

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Back in February, $130 "smart" pet feeders from a company named Petnet simply stopped working. When customers reached out to the company to complain, they hit a complete and total brick wall in terms of functioning customer service. Emails and phone calls weren't returned (or wound up undeliverable), and the company simply refused to answer annoyed customer inquiries on Twitter or Facebook.These problems extended into March and April, with customers consistently complaining to outlets like Ars Technica that their "smart" feeders still didn't work, and support was nowhere to be found. By late April, the company announced it had at least partially shut down, furloughed employees, and closed its offices. The outfit attempted to largely blame COVID-19 for its misfortunes, despite the fact its problems started well before the pandemic, and the company's office had been empty and available to lease since last October.Claiming they had no other option, Petnet also began trying to charge customers a new $4 monthly fee to keep the company's lights on and customers' not-so-smart pet feeders semi-operational. Many users begrudgingly decided to pay the fee, and for some reason were shocked to discover that it hasn't really improved things in the slightest. For many, their $130 smart pet feeder sometimes works, but it can't connect to the internet or Petnet systems (the whole point). And throughout all of this, Petnet has proven incapable of providing even baseline customer support:

"Another Ars reader reached out last week saying that he had paid $30 for a year of service, but as of July 2, although his feeder still functioned and fed his cat every day, "I cannot connect to the device or control it using the app," which could not connect even though Petnet said it would be available after June 30. "Several times over the last two days I have tried to contact them via phone, email, and Facebook with no luck," he added.Several users on Twitter also approached the @petnetiosupport account with similar complaints. "I still can't even set up an account," one wrote. Another user experienced the same problem, while a third said they could not log in to their existing account. And the problems seem to go beyond just the app, as one user said their second-generation SmartFeeder had once again stopped working completely."
Journalists who try to contact the company apparently don't warrant a response. It's yet another example of how in the internet of broken things era, dumb technology (like a $2 metal bowl for Fido) is often the smarter option.

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posted at: 12:00am on 17-Jul-2020
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Fan Uses AI Software To Lipread What Actors Really Said In TV Series Before Chinese Authorities Censored Them

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It's hardly news to Techdirt readers that China carries out censorship on a massive scale. What may be more surprising is that its censorship extends to even the most innocuous aspects of life. The ChinAI Newsletter, which provides translations by Jeff Ding of interesting texts from the world of Chinese AI, flags up one such case. It concerns a Chinese online TV series called "The Bad Kids". Here's how the site Sixth Tone describes it:

Since its first episodes were released on China's Netflix-like video platform iQiyi in mid-June, "The Bad Kids" has earned sweeping praise for its plot, cinematography, casting, dialogue, pacing, and soundtrack. It's also generated wide-ranging online discussion on human nature due to the psychology and complex motivations of its characters.
However, as the Sixth Tone article points out, the authorities required "a lot of changes" for the series to be approved. One fan of "The Bad Kids", Eury Chen, wanted to find out what exactly had been changed, and why that might be. In a blog post translated by ChinAI, Chen explained how he went about this:
Two days ago, I watched the TV series "The Bad Kids" in one go, and the plot was quite exciting. The disadvantage is that in order for the series to pass the review (of the National Radio and Television Administration), the edited sequences for episodes 11 and 12 were disrupted, even to the point that lines were modified, so that there are several places in the film where the actor's mouth movements and lines are not matched, which makes the plot confusing to people. Therefore, I tried to restore the modified lines through artificial intelligence technology, thereby restoring some of the original plot, which contained a darker truth.
The AI technology involved using Google's Facemesh package, which can track key "landmarks" on faces in images and videos. By analyzing the lip movements, it is possible to predict the sounds of a Chinese syllable. However, there is a particular problem that makes it hard to lipread Chinese using AI. There are many homophones in Chinese (similar sounds, different meanings). In order to get around this problem, Chen explored the possible sequences of Chinese characters to find the ones that best match the plot at that point. As his blog post (and the ChinAI translation) explains, this allowed him to work out why certain lines were blocked by the Chinese authorities -- turns out it was for totally petty reasons.Perhaps more interesting than the details of this particular case, is the fact that it was possible to use AI to carry out most of the lipreading, leaving human knowledge to choose among the list of possible Chinese phrases. Most languages don't require that extra stage, since they rarely have the same number of homophones that Chinese does. Indeed, for English phrases, researchers already claimed in 2016 that their AI-based LipNet achieved "95.2% accuracy in sentence-level, overlapped speaker split task, outperforming experienced human lipreaders".It's clear that we are fast approaching a situation where AI is able to lipread a video in any language. That is obviously a boon for the deaf or hard of hearing, but there's a serious downside. It means that soon all those millions of high-quality CCTV systems around the world will not only be able to use facial recognition software to work out who we are, but also run AI modules to lipread what we are saying.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:01am on 16-Jul-2020
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Content Moderation Case Study: Dealing With Misinformation In Search (2004)

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This series of case studies is published in partnership with the Trust & Safety Foundation to examine the difficult choices and tradeoffs involved in content moderation. Learn more »Summary: Google's biggest early innovation in search was that it used inbound links as a tool for determining the popularity of a website, and thus what its relevance to a particular search might be. That feature, however, created some side effects that raised concerns about how search results might lead to misinformation, or how the search engine might be gamed.One of the earliest examples of this was the discovery in 2004 that the first result of a search on the word jew pointed to a blatantly anti-semitic website, Jewwatch. It was widely theorized that the reason for this was that the singular noun jew was more likely to be used by those pushing anti-semitic arguments, rather than the more common adjective jewish or the phrase jewish wo/man etc. Also, the site Jewwatch had been in existence for many years, and had many inbound links from other sources.Some also believed that the people behind Jewwatch had used an early search engine optimization technique known as Googlebombing to purposefully game the results deliberately linking to Jewwatch from other sites, and using the word jew as the link text.As this result got attention, Google came under tremendous pressure to change the search result, as people accused the company of anti-semitism or deliberately pointing to the Jewwatch site in search results. The Anti-Defamation League sent a letter to Google asking it to explore whether or not its ranking system needed to be changed (though the ADL also posted an article to its own site telling people that it was clear that the result was not intentional, or done for nefarious reasons). Some politicians, including Senator Chuck Schumer, also got involved to pressure Google to change its results.Decisions to be made by Google:

  • Should the top search results be manually changed when it is discovered they lead to misinformation and hate?
  • Should the algorithm be changed to try to avoid these results?
  • Should the company do nothing and say that the algorithm decides the results, period?
  • Should any decision set a precedent for future decisions, and if so, what policies and guidelines need to be put in place to deal with future cases?
  • Are there other ways to respond to this situation?
  • How should Google handle attempts to game search via things like Googlebombing?
Questions and policy implications to consider:
  • If any changes are made, will lots of others expect similar changes to be made as well?
  • Will making changes lead to questions regarding the credibility of search results and the Google algorithm?
  • What sorts of policies and processes need to be in place to deal with these kinds of requests?
  • Will any changes have other, unintended consequences as well?
  • Are search engine optimization techniques nefarious? Can they be? If so, how do you distinguish between good intentions and bad intentions?
  • If you block certain techniques, such as Googlebombing, will that stop the practice when used for good purposes as well?
Resolution: Google responded by clearly stating that it had no direct intentions to change its algorithm. However, it did decide to provide more information, by using the advertising space above the top result to encourage people to click through for more information about how the results came about:
The company also stated that it would explore additional ways of addressing issues like this in the future.Perhaps more interesting, however, was that Google's users took matters into their own hands, and realized that if Jewwatch was Googlebombing, they could use the same tools to diminish the result. A campaign was quickly organized online, with many people linking the word jew to Wikipedia's page on Judaism, and indeed, this worked to get that result to the top of the rankings.Over time, Google's algorithms were adjusted globally to try to diminish the power of Googlebombing for any reason (good or bad). In 2007, the company announced that it believed its algorithm would filter out attempts at Googlebombing. In that discussion, the employees who helped stop the effectiveness of Googlebombing explained why they did so, and how they believed it was better to take a holistic approach (which was more scalable) than responding to individual bad results:
People have asked about how we feel about Googlebombs, and we have talked about them in the past. Because these pranks are normally for phrases that are well off the beaten path, they haven't been a very high priority for us. But over time, we've seen more people assume that they are Google's opinion, or that Google has hand-coded the results for these Googlebombed queries. That's not true, and it seemed like it was worth trying to correct that misperception. So a few of us who work here got together and came up with an algorithm that minimizes the impact of many Googlebombs.The next natural question to ask is "Why doesn't Google just edit these search results by hand?" To answer that, you need to know a little bit about how Google works. When we're faced with a bad search result or a relevance problem, our first instinct is to look for an automatic way to solve the problem instead of trying to fix a particular search by hand. Algorithms are great because they scale well: computers can process lots of data very fast, and robust algorithms often work well in many different languages. That's what we did in this case, and the extra effort to find a good algorithm helps detect Googlebombs in many different languages. We wouldn't claim that this change handles every prank that someone has attempted. But if you are aware of other potential Googlebombs, we are happy to hear feedback in our Google Web Search Help Group.


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posted at: 12:01am on 16-Jul-2020
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Google Finally Gets Around To Banning Ads For Stalkerware

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Stalkerware is one of those things that most people never would have considered when technologies were being developed, but which in hindsight come off as practically inevitable. These apps, often times named as if they would be chiefly marketed to parents trying to keep tabs on their kids, but which instead are also specifically advertised as ways to stalk current romantic partners and exes, are all different flavors of creepily allowing a person to snoop on the location and activities of an unsuspecting other person. The whole concept is so obviously evil that it's a wonder why any platform would allow these apps to be sold in the first place, and yet it was only in 2019 that Google managed to ban them from its app store.

Antivirus company Avast said Wednesday that it's found seven stalkerware apps available on Android's market. In all, they had been installed more than 130,000 times. Google removed four of the apps after Avast reported the privacy violations on Tuesday, and removed the last three on Wednesday. Google said its policy prohibits commercial spyware apps and encourages people to report any apps that violate its standards.
Since then, Google has regularly had to purge new creepy entrants into the stalking marketplace, but it has done its best to keep up. Because, as Google stated in its policy above, such apps are prohibited on the app store.But not in Google's advertisements, apparently, at least up until this past week.
In an ad policy update this week, Google said that beginning August 11 it will prohibit ads for products or services marketed for secretly tracking or monitoring someone. This includes, but is not limited to:Spyware and technology used for intimate partner surveillance including but not limited to spyware/malware that can be used to monitor texts, phone calls, or browsing history; GPS trackers specifically marketed to spy or track someone without their consent; promotion of surveillance equipment (cameras, audio recorders, dash cams, nanny cams) marketed with the express purpose of spying.
Credit where it's due: Google's change in policy is good. And, given the massive ecosystem that is Google's advertising system, it's easy to imagine how the company might not have been initially prepared for the review and purges necessary to keep these sorts of ads off its platform.But the truth is that's a massively weak caveat, given the nature of these ads. Reading Google's description of the types of ads that are newly banned, it practically yanks the follow up question out of your mouth: Wait, why did you ever allow ads for this sort of thing in the first place? As the Gizmodo post notes, Google has been aware of just how big a problem stalkerware has been on its platforms since at least 2018, and almost certainly before. How has this possibly taken this long?

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posted at: 12:00am on 15-Jul-2020
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Companies Are Selling Cops Access To Personal Data Harvested From Malicious Hacking And Data Breaches

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There's a new way for cops to get information about suspects and it involves people who've already been victimized by criminal acts and/or careless handling of personal data by corporations. As Joseph Cox reports for Motherboard, law enforcement agencies are using third-party services to gain access to personal info derived from data breaches.

Hackers break into websites, steal information, and then publish that data all the time, with other hackers or scammers then using it for their own ends. But breached data now has another customer: law enforcement.Some companies are selling government agencies access to data stolen from websites in the hope that it can generate investigative leads, with the data including passwords, email addresses, IP addresses, and more.
This is what SpyCloud offers to government agencies: one-stop shopping for a wealth of personal data -- including login info and passwords -- that agencies can't find anywhere else. SpyCloud says it's "empowering" investigators by giving them data they can "use against criminals."That sounds very noble, but most of what's obtained from data breaches and malicious hacking is information about non-criminals. And it's unclear under what authority law enforcement agencies are searching SpyCloud's collection of data. Using a third party like SpyCloud allows law enforcement to bypass judicial review of warrants and subpoenas, which are normally used to obtain information directly from relevant companies once investigators have the reasonable suspicion needed to move ahead with this step. This new method of collecting information ignores all of that to give investigators a stock pond for fishing expeditions.
Riana Pfefferkorn, associate director of surveillance and cybersecurity at the Stanford Center for Internet and Society, told Motherboard in an email, "it's disturbing that law enforcement can simply buy their way into obtaining vast amounts of account information, even passwords, without having to obtain any legal process.""Normally, if the police want to find out, say, what IP address is associated with a particular online account, they do have to serve legal process on the service provider. This is an end-run around the usual legal processes. We impose those requirements on law enforcement for good reason," she added.
Tons of info is served up by SpyCloud, including email accounts, IP addresses, passwords, user names, and phone numbers. This may streamline things for investigators, but law enforcement isn't supposed to be easy. It's supposed to be reined in by checks and balances. SpyCloud says the hell with all of that, allowing agencies to get everything in one place without having to check with a judge first.This stash could also give investigators a head-start when attempting to crack encrypted devices. Password reuse is common and a data storehouse full of passwords linked to suspects could give cops a way to crack open devices without having to worry too much about the Fifth Amendment. The Fourth Amendment, however, could prove more problematic. But the data obtained via SpyCloud is pretty much tailored for parallel construction, allowing investigators to get the info they want before working backwards to paper over the data's origin with subpoenas and warrants asking companies to provide information investigators already have.SpyCloud itself poses an additional risk for everyone. Gathering up data from breaches and malicious hacking and putting it all in one place makes SpyCloud an attractive option for law enforcement agencies. It also makes it a very tempting target for criminals, who would also like a one-stop shop for personal info and passwords.And then there's the problem of abuse, both by government employees and SpyCloud's own staff. This is an inevitability. Law enforcement's access is already somewhat abusive, as it appears to be occurring in a legal vacuum and involves the personal data of thousands (or millions) of non-suspects. But the potential for greater abuse -- the use of the data to collect information about anyone an officer has a non-professional interest in -- is omnipresent.Finally, SpyCloud and its government users can't even argue these are all public domain records that anyone can access simply by tracking down publicly posted stashes obtained from hacking and data breaches. SpyCloud is compiling data from sources that aren't publicly available and selling this to cop shops as well.
[Co-founder Dave] Endler said that SpyCloud has a human intelligence team, whose work involves "developing relationships with sock puppets, alternate personas" to obtain data. Endler said SpyCloud also cracks passwords; datasets often only contain a hash, or a cryptographic fingerprint of a user's password. Once cracked, an investigator can see what a user's real password was; perhaps a useful clue in linking together accounts that share a password.
A lot of what's in this stash SpyCloud is cultivating and selling are third-party records. But in the legal sense, third-party records stand outside the Fourth Amendment's protection when they're obtained directly from the third party collecting them. Another party offering access to third-party records belonging to others isn't the kind of "third party" this doctrine pertains to. What courts will make of this is unknown. But law enforcement agencies already purchase third-party data from middlemen, suggesting these entities are aware they're operating in an area untouched by precedent and are willing to do things they probably shouldn't just because no judge has told them that they can't.

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posted at: 12:00am on 15-Jul-2020
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WoW Alters Its Character Creation System to Add Diversity

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For some years, we have been banging the drum repeatedly pointing out that video games need to be viewed through the lens of artwork. There a variety of headwinds in solidifying this stance, but they mostly revolve around older generations repeating the sins of their forefathers in declaring any art they aren't "in to" to not be art at all. And, yet, thinking about this for ten seconds will reveal just how silly that is. Video games include elements of drawing, storytelling, creative modeling, and music. Any one of those is most certainly art in and of themselves, yet combining them to make something entertaining somehow throws a lot of people for a loop. And, yet, we see revolutionaries turning to games these days to make compelling artwork, while museums have already begun curating the output of this relatively young industry.And once we accept that video games are a form of art, it follows that the flow of culture and society will influence that art. That's the way it's always been. Art is a mirror held up to society. And one of the glaring flaws in that mirror image in gaming has, for a long time, been the multi-faceted lack of diversity in both the industry and the games themselves.

One of Nintendo's recent games, Fire Emblem: Three Houses has some downright insulting LGBTQ+ interactions, which is rife through the series dating back to Fire Emblem: Awakening in 2012. In Three Houses, your male or female avatar can romance other characters of the same gender, yes, but throughout the franchise, the LGBT options have been extremely limited and mostly amount to nothing more than platonic 'special friendships'.Consider as well, characters like Cal Kestis from Star Wars Jedi: Fallen Order, who are seemingly considered the norm. Respawn could have meaningfully designed Kestis as literally anything other than just one more white male protagonist. The reason behind his design? Respawn has said it thought about having either an alien or female protagonist, but Kestis was ultimately used because they didn't want to “alienate” the player.
It should be immediately understood just how absurd that reasoning is. Who is at risk of being alienated... and by what? If Kestis was a female character, it would alienate men? And, if that is indeed true, doesn't it follow that the male character alienates women? Or are only men so frail as to be unable to play a game as a character of the opposite sex, whereas women are able to shrug off such base concerns? If Kestis were black, or gay, or old, or Buddhist, would that alienate anyone? And, if so, isn't the same true in reverse? Being in the majority, I would think, ought to make one more secure in this sort of thing, and yet the opposite appears to be true.But with the reckoning and awakening of the racial justice movement that's occurring, games are changing in its wake.
Last weekend, Guerilla Collective – something of an alternative to E3 following its cancellation due to coronavirus – held dedicated broadcasts focusing entirely on Black video game studios, which make games with Black protagonists.Among those featured were the likes DecoyGames, Gameheads, Waking Oni Games, and Jesse Wright, among several others.This is, of course, a step in the right direction and only helps spark further conversations about why video games themselves are so white, and why games with people of colour as a starring role are seldom found.
And whereas stock main characters are indeed becoming more diverse, finally, there are also changes being made in games that allow for custom character creation, in order to add more representation and diversity as to what kind of character a player can play. World of Warcraft Shadowlands is an example of this.
Shadowlands will also bring the ability to make changes to a character’s gender on the fly. As reported in Eurogamer, Blizzard intends to make gender changes free in Shadowlands. Before, one could customize face, skin color, hair, and eye color for a nominal sum of gold in one of the game’s many barber shops. Changing a character’s gender, though, required paying real money to do. “We felt like that’s not the right message,” according to WoW executive producer John Hight. “Unfortunately we can’t fix that right now,” he told Eurogamer. “But it is our intent with Shadowlands to take that out of being a paid service thing and [put it] in the barber shop.”The changes and additions being made to Warcraft’s character creator seem to reflect a broader push for more diversity in the game. This initiative goes beyond the start screen and delves into the world of Azeroth itself. “We are planning on broadly incorporating the range of character customizations for NPCs just across the world,” said WoW game director Ion Hazzikostas during an event yesterday. “Walking through Stormwind, walking around other parts of the world, you will see guards and random civilians that have these looks as if they’ve been there all along. Frankly I think we see this as correcting an oversight on our part over the years. [We’re] trying to improve representation more broadly.”
Like all new inclusions for the sake of diversity, these changes will surely face a backlash. There is some cadre of gamers out there that seems to think that these nods towards representation are either a threat, somehow, or else a pathetic genuflection at the altar of virtue signaling. But to break it down to its most basic: if you spend even one calorie fretting over players having more choice in the creation of their characters, you're the one that has the problem, not the gaming industry. And if you enjoy the character creation in games as much as most people do, you will realize how important it is for any gamer to be able to see themselves in those options.
Character creation is so important because, in games like WoW, it’s the only way we’re able to express our individuality as humans. We tell a bit of our stories in the flesh and fur and bone we shape to our liking. The story of World of Warcraft is one you experience. Sure, your actions drive the plot, but the story is largely not your own. This character creator and the other changes the development team are making allow the player a far greater ability to tell their own, personal, story.
These are good changes. Whatever backlash may occur from art transforming as a result of societal change, well, art always has its critics. But good art reveals more about us in how we interpret it, rather than we reveal the value of artwork by doing so. It just might be that changes like these are simply revealing how far we have to go as a people in accepting differences, diversity, and our fellow men and women.

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posted at: 12:00am on 14-Jul-2020
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Understanding The 'Splinternet'

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In recent years, technologists have coined the phrase “splinternet” to describe the internet’s supposed evolution from a unified, borderless realm into a fragmented set of parallel internets, divided by national borders.This assumes that the internet was, at one point, global in some meaningful sense. But the reality has always been more complex. From the stark digital divide for students during COVID-19 to Western companies enacting overly broad regional blocking in the name of “security,” the digital world never floated freely on a flat plane, untethered from political and geographical boundaries.Yet, talk of a splinternet points to an important question: will the internet be more like one world (with some bumps along the way), or will it have semi-permeable borders that are tricky and expensive — perhaps even impossible — to cross?To know whether (or how) the internet is becoming more fragmented first requires reliable methods for measuring internet fragmentation. The Daylight Security Research Lab has been working on this challenge for over a year with UC Berkeley’s Center for Long-Term Cybersecurity.The internet is not a singular technology. It’s an ensemble, cobbled together from a variety of complementary tools and protocols. Each protocol sits on top of the one beneath it, creating "layers" of technologies that, together, we colloquially call “the internet.” In a recent column in the New York Times, for example, Shira Ovide describes fragmentation among companies providing digital services in India. This competition happens at the "content layer," which hosts the applications we interact with.But this content layer locality is only one dimension of fragmentation. “Below” this layer, IPv6, an upgraded internet protocol system — the basic addressing system that allows computers to connect to the internet — rolls out unequally across the world. As older IPv4 addresses (in the style of 127.0.0.1) become increasingly scarce, internet outages could hit countries with low IPv6 penetration. Upgrading to IPv6 requires private- and, in some cases, public-sector investment so this divided access to the internet will break along lines of wealth.“Above” these technical layers, regulations like Europe’s General Data Protection Regulation (GDPR) and Russian data locality laws fragment the internet at the "legal" or "social" layer. Russia’s laws require data about Russians to be stored in Russia and have enabled the Putin regime to disconnect from the wider internet as part of a “preparedness” drill. However, the GDPR has yielded a more subtle, bureaucratic flavor of fragmentation. As of 2018, about a third of major U.S. news sources blocked visitors from Europe to avoid GDPR regulations. While the policy merits of the GDPR can be debated, the regulation has undeniably made national borders matter more for the way data flows throughout the world.Fragmentation can come at any layer of the internet stack. To capture this multifaceted reality, the Daylight Security Research Lab built a dataset to measure internet fragmentation through proxy measures based on four different layers of this stack.Rather than revealing a world moving in one direction from "global" to "fragmented," the research reveals a more complex reality. Internet governance decisions produce diverse types of fragmentation. Some countries may have lots of data locality laws, while their content-layer patterns align with global norms. Other countries may exhibit the opposite pattern.Across the five layers of the stack, the research mapped these fragmentation profiles with surprising results. On the one hand, countries expected to be different were surprisingly similar. Ask what Norway has in common with Saudi Arabia, Kuwait, UAE, and Bahrain, and someone might guess, “aside from oil, not much.” However, these very different countries have very similar, country-specific browsing habits, degrees of network non-neutrality (e.g., government or ISP interference) and work on similar infrastructures. While the specific browsing habits are almost certainly different between Norway and Saudi Arabia, the way in which they are different from the supposedly “global” internet is itself similar.On the other hand, similar countries can have a surprisingly different internet. Per popular imagination and some recent reports, China’s model of the internet — one in which blocking is pervasive and centralized— has set a precedent that other Belt & Road countries, like Laos and Indonesia, are following. But the data challenges that assumption. In fact, China stands out from all of the seven Belt & Road countries that were analyzed. China has more data locality laws, a higher degree of content layer locality and significantly higher observed network interference.As the shape of internet governance changes, barriers and enablers to using these services shift as well. It becomes easier to carry out speech, commerce and other digital activities in “blocs” of interoperability, and harder to move across the borders between those blocs. For an app starting today in the United States, it may be easier to block users from EU countries than to learn about and comply with EU regulation. Imagining this small-scale conflict playing out on a larger scale, regulations can (and do) produce fundamentally different experiences on the internet.In the meantime, as you read anecdotes claiming the internet is becoming one way or another, or that changes have some good or bad effect, remember the eternal truth about any complex system: it's complicated.What are we to make of the weird parallels between Norway and Bahrain? And what does this multifaceted reality mean for businesses or policymakers? Our ability to answer these questions is limited by our lack of a common language for discussing the phenomena. To know what’s down the road for the web, we first need to measure it.Nick Merrill directs the Daylight Security Research Lab at the UC Berkeley Center for Long-Term Cybersecurity. His research is focused on identifying potential harms of technology, and to help others do the same.

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posted at: 12:00am on 14-Jul-2020
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In Case You Missed It: The Return Of Nerd Harder Gear, Plus New Face Masks!

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Nerd Harder gear is back, and face masks are available
in the Techdirt Gear store on Threadless »At the end of last month, we fulfilled two of the most popular requests (one long-standing, and one brand new) for Techdirt gear: we brought back the Nerd Harder line of gear, and introduced a series of face masks featuring some of our most popular designs!

You can find all these offerings in our artist store on Threadless, with multiple products available. Face masks come in two styles (standard and premium) as well as youth sizes, and there are t-shirts, hoodies, sweaters and other apparel — plus a variety of cool accessories and home items including buttons, phone cases (for many iPhone and Galaxy models), mugs, tote bags, and stylish notebooks and journals.All the profits from gear sales help us keep Techdirt going and continue our reporting through this challenging pandemic situation and beyond, and we're hugely appreciative of all the support. You can also check out our list of all the different ways to support Techdirt with a wide variety of options for readers to help us out and get something cool or useful in return!

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posted at: 12:00am on 12-Jul-2020
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Clearview Calls It Quits In Canada While Under Investigation By The Privacy Commissioner

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Clearview AI -- the facial recognition service that gives all kinds of entities access to billions of face images scraped from the web -- is suddenly scaling back on its aggressive expansion plans. Once the plaything of billionaires, the unproven AI has been sold to retailers, fitness centers, police departments, and a handful of human rights violators.Soon after its existence was exposed by the New York Times, Clearview AI proceeded to announce its plans to expand worldwide -- something it hoped to achieve while being sued multiple times in its home country. Canada was in its sights, but not so much any more.In February, the Privacy Commissioner of Canada announced its office would be investigating Clearview AI and its still-not-independently-tested algorithm. This was triggered by numerous reports from journalists exposing how Clearview obtained its massive database of photos and how it was being used by government agencies and private entities.The Privacy Commissioner was not impressed with Clearview's apparent disregard for privacy, saying it was specifically looking into reports that Clearview was collecting and using personal info without consent.The investigation is still ongoing. But it appears Clearview is hoping to dodge the worst of it by removing itself from the Canadian market:

Clearview AI has advised Canadian privacy protection authorities that, in response to their joint investigation, it will cease offering its facial recognition services in Canada.This step includes the indefinite suspension of Clearview AI’s contract with the RCMP, which was its last remaining client in Canada.
Clearview is making like a cop under investigation and retiring before it's concluded. But that's not going to save Clearview from findings that are pretty much guaranteed to be damning.
The investigation of Clearview by privacy protection authorities for Canada, Alberta, British Columbia and Quebec remains open. The authorities still plan to issue findings in this matter given the importance of the issue for the privacy rights of Canadians.
And the investigation Clearview can't dodge by saying "you can't fire me, I quit" will continue, looking into the company's slurping of Canadians' data as well as any attempts it makes to divest itself of contested Canadian data as it promises to pull out.Good riddance, I say. And Canada says. Not directly, as of yet, but when the investigation concludes, I doubt the Privacy Commissioner will be offering Clearview a "we had you all wrong, bro." Clearview is the pox upon the humanity that is the facial recognition arms race. Weaponizing people's online postings against them using unproven AI is just pure evil.

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posted at: 12:00am on 11-Jul-2020
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Reverse Warrant Used In Robbery Investigation Being Challenged As Unconstitutional

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Reverse warrants are being challenged in a criminal case involving a bank robbery in Virginia. These warrants (also called "geofence warrants") work in reverse, hence the nickname. Rather than seeking to search property belonging to a known suspect, investigators approach Google with a demand for information on all cellphones in a certain location at a certain time and work backwards from this stash to determine who to pursue as a suspect.Warrants require probable cause. And there doesn't seem to be much in the way of specific probable cause supporting these fishing expeditions. In this case, a bank was robbed in the late afternoon, resulting in plenty of people unrelated to the robbery being in the vicinity. This is all it takes to turn random people into suspects. And that has gone badly for investigators and, more importantly, innocent citizens on more than one occasion.Accused bank robber Okello Chatrie is challenging the reverse warrant that led to his arrest and indictment on federal charges. Chatrie hopes that warrant will be found deficient because it will make it easier to undo the damage he seemingly inflicted on himself after he was taken into custody.

In Chatrie’s case, bank cameras showed the robber came and went from an area where a church worker saw a suspicious person in a blue Buick. Chatrie’s location history matched these movements. Prosecutors say Chatrie confessed after officers found a gun and nearly $100,000 in cash, including bills wrapped in bands signed by the bank teller.
Chatrie first moved to suppress this warrant late last year, arguing [PDF] that it's impossible for a warrant that targets no one in particular to contain the necessary probable cause for the search of Google's location records.
This is no ordinary warrant. It is a general warrant purporting to authorize a classic dragnet search of every Google user who happened to be near a bank in suburban Richmond during rush hour on a Monday evening. This is the kind of investigatory tactic that the Fourth Amendment was designed to guard against. Geofence warrants like the one in this case are incapable of satisfying the probable cause and particularity requirements, making them unconstitutional general warrants.
His motion also points out that the location info gathered by Google via the Android operating system is far more precise than cell site location info gathered by cell service providers.
[T]he location data available in Google’s Sensorvault is even more precise than the data in Carpenter. Google can pinpoint an individual’s location to approximately 20 meters compared to “a few thousand meters” for cell site location data...
In this case, investigators received "anonymized" data on nineteen cellphones that were in the area at the time of the robbery. From there, investigators determined Chatrie to be the most likely suspect. That's detailed in the warrant application [PDF] for a search of Chatrie's Google accounts.
Based upon Google's return of anonymized information, your Affiant discovered a Google account that: (1) was near the corner of Journey Christian Church prior to the robbery at approximately 4:30 to 4:40 p.m. -- the time period [redacted] recalled encountering a suspicious individual wearing reflective glasses in a blue Buick sedan; (2) was near the southwestern corner of Journey Christian Church prior to the robbery at approximately 4:48 p.m.; (3) was inside the Credit Union during the time of the robbery; and (4) immediately left the area following the robbery, leaving from the southwestern corner of Journey Christian Church.
Chatrie filed a supplemental suppression motion [PDF] in May of this year. This one expands on points previously made, as well as adding new information gathered from a few rounds of discovery. It opens with this statement, again characterizing reverse warrants as general warrants forbidden by the Fourth Amendment -- something that doesn't become acceptable just because investigators don't have any immediate leads.
Local police had no suspects in the robbery of the Call Federal Credit Union, so they decided to enlist Google to sleuth for them. Investigators went to a Virginia magistrate and, without conveying critical information, obtained a staggeringly broad and unparticularized warrant to go fishing in a pool of private location data that most people have never heard of. They demanded the location information associated with all Google users who happened to be in the vicinity of the bank during rush hour on a Monday evening, and thus, caused Google to search numerous tens of millions of accounts at their behest.
As the motion notes, the Supreme Court has said historical cell site data is protected by the Fourth Amendment, requiring the use of a warrant to obtain it. Even though there was a warrant involved here, it did not satisfy the particularity needed to justify this search of Fourth Amendment-protected records.
While the government obtained a warrant in this case, it did not obtain one for Mr. Chatrie’s Location History data. In fact, it did not seek anyone’s data in particular. Rather, the government compelled Google to search everyone’s data in order to develop an investigative lead. This warrant was unconstitutional. It was both overbroad and lacking in particularly, a forbidden general warrant purporting to authorize a dragnet search of Google users. It did not—and could not— satisfy the Fourth Amendment’s probable cause and particularity requirements, rendering it wholly impermissible and void from the beginning.
The government's response [PDF] portrays Google as nothing more than a nearby resident who could be approached with the proper paperwork to compel it to disclose what it "saw."
The investigators were correct: Google had been a witness to the robbery. Pursuant to the warrant, Google produced to the United States a small set of records: location information over a two-hour interval of three identified and six unidentified individuals, and limited location information over a one-hour interval of ten other unidentified individuals. This information was sufficient for investigators to recognize that the defendant’s Google account likely belonged to the robber, and subsequent investigation led to his indictment.
The government says the Carpenter decision doesn't apply because -- unlike cell location data gathered by service providers -- users must opt in to allowing Google to collect their location data. The argument is an old one: that a person's agreement to share data with a company is an agreement to share data with a government.
Google could not obtain and store the defendant’s location without his undertaking multiple affirmative acts. He had to opt in to Location History in his account settings, and he had to enable Location Reporting for his phone. The defendant had discretion regarding whether Google stored his location information, and he retained the ability to delete it. And none of the services associated with Google’s storage of location information are indispensable to participation in modern society. The defendant thus voluntarily disclosed his location information to Google, and Google’s conveyance of that information to the United States did not infringe his reasonable expectation of privacy.
The government also argues that a warrant targeting nothing more than anonymized data is still somehow particular. It says warrant affidavits only need to show there's a probability that evidence will be found in the place searched.
In particular, the affidavit established: (1) that an unknown subject committed an armed bank robbery at a particular place and time; (2) that prior to the robbery, the robber held a cell phone to his ear and appeared to be speaking with someone; (3) that the majority of cell phones were smartphones; (4) that “[n]early every” Android phone “has an associated Google account,” and that Google “collects and retains location data” from such devices when the account owner enables Google location services; and (5) that Google can collect location information from non-Android smartphones if the devices are “registered to a Google account and the user has location services enabled.” From this information, there was a substantial basis for the magistrate to find probable cause to believe that Google possessed evidence related to the robbery.The defendant argues that the warrant lacked probable cause because it “did not identify any individuals or accounts to be searched because investigators did not know who they were searching for, or even if Google would have relevant data.” However, a warrant for evidence of crime need not identify specific individuals or establish with certainty that evidence will be found—all it must do is establish a fair probability that specified evidence will be found in the place to be searched.
The judge has yet to rule on this suppression attempt. The government's arguments seek to turn a broad warrant into something that "narrowly" targets what may be a very large data subset collected and stored by Google. The implications of claiming everyone who uses Google's location services voluntarily waives their privacy right in this information are far-ranging and somewhat opposed to the Supreme Court's Carpenter decision. While the Supreme Court only delivered a narrow ruling on the warrantless acquisition of several days of cell site location info, it pointedly did not state this was the only way this decision should be applied. Other courts have already found Carpenter's reasoning capable of covering third-party records not explicitly discussed in that decision.Finally, also of interest in the reporting on this case is that reverse warrants are the target of legislation in New York. And we have, of all people, the Proud Boys, to thank for it.
“If you are someone who went out on the streets to express your rage, your sadness and your hope that there is a better way to do policing and are then subject to a warrant, I think that would go against everything we are telling people they have the right to do,” said New York state Sen. Zellnor Myrie, a lead sponsor of a bill to ban geofence warrants.The legislation was prompted in part by a New York Times report that prosecutors sought Google’s cellphone records around the spot where the Proud Boys, a far-right group, brawled with anti-fascist protesters in 2018. Several Proud Boys were later convicted of assault.
If this challenge ends up in a federal appeals court, more attention will be drawn to these questionable warrants that allow investigators to treat everyone in an area as a suspect by leveraging data many cellphone users may not realize is being collected and stored. And, because this is a relatively new investigative option, judges aren't being provided with all the details needed to make informed decisions, which is going to result in even more collateral damage in the future if courts don't start doing something about this now.

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posted at: 12:00am on 11-Jul-2020
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Colorado Government Dumps Qualified Immunity For Cops

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Since qualified immunity isn't actually a law -- but rather a Supreme Court construct -- states are under no obligation to adopt this doctrine and apply it to lawsuits against law enforcement officers. But most states have, with Iowa's top court being the latest to inflict this atrocity on the populace.The Supreme Court has fine tuned qualified immunity over the years, turning it into a speedy way to dispense with lawsuits brought by people whose rights have been violated. As long as the rights violation was committed in a novel way, cops are free to go. And as long as lower courts never have to address the question of whether or not a rights violation was committed, no new precedent is established that would put officers on notice that their rights violations are actually rights violations.Legislation has been introduced that would end qualified immunity at the federal level. There's basically no chance it will pass, not with Senator Mitch McConnell deciding what bills get voted on. That leaves it up to the states, which are free to eliminate this SCOTUS construct at any time.That's what has happened in Colorado. The governor has signed into law a rejection of law enforcement's favorite "get out of lawsuit free" card.

In a fitting tribute to Juneteenth, Colorado Gov. Jared Polis signed a sweeping law enforcement reform bill on Friday that marks one of the most significant changes to policing amidst the protests over the brutal killing of George Floyd. Among the new law’s many reforms, which include banning chokeholds and the use of deadly force for nonviolent offenses, the Enhance Law Enforcement Integrity Act (SB20-217) allows plaintiffs to bypass “qualified immunity,” one of the biggest barriers to holding government agents accountable in court.
The law says officers cannot raise qualified immunity as a defense to civil actions. It's part of a set of police reforms that includes mandated body cameras (with sanctions for failing to activate them), expanded reporting on officer-involved killings and officers who resign while under investigation, limits on force deployments during peaceful protests, and a ban on chokeholds. It also gives the state more options for decertifying officers, including the stripping of certification for failing to intervene when other officers are using unlawful force.But there's a lot of bad news to go along with this good news. First, ending qualified immunity at the state level does not prevent officers from using this defense in federal cases. Unfortunately for state residents, most civil rights lawsuits are handled at the federal level.The deterrent effect is further muted by the law's refusal to actually hold officers accountable for their own misconduct. Cops may no longer have qualified immunity to protect them in state lawsuits, but they'll still have the state shielding them from the consequences of their actions.
The bill requires a political subdivision of the state to indemnify its employees for such a claim; except that if the peace officer's employer determines the officer did not act upon a good faith and reasonable belief that the action was lawful, then the peace officer is personally liable for 5 percent of the judgment or $25,000, whichever is less, unless the judgment is uncollectible from the officer, then the officer's employer satisfies the whole judgment .
Sure, some departments may fire a judgment-proof cop after they've been asked to open up their wallets a few times. But indemnification means cops can do bad things and expect someone else -- state taxpayers -- to pay for it. At the very most, an officer will be out $25,000. But collecting that judgment will be a rarity. Government employees know all the best ways to game a system and it will be the rare misbehaving cop that will have $25k laying around where litigants can find it.It's better than the nothing governments have done for years when asked to deal with systemic police misconduct. Acting like disappointed parents rather than responsible overseers of the public trust has turned many departments into receptacles for bad apples. Taking away a bad cop's favorite shield is a start. More states should do the same thing. Maybe then the Supreme Court might be willing to take another look at its enabling of rights violations and remove this blight from the federal landscape.

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posted at: 12:00am on 10-Jul-2020
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U.S. Court Of Appeals Hears Arguments That Lawsuit Against Disney For 'Pirates' Shouldn't Have Been Dismissed

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Back in 2019, we wrote about a lawsuit filed against Disney by two writers that pitched a piratey movie to the company. The writers' screenplay about Davey Jones, they said, was so similar to Disney's Pirates of the Caribbean movies so as to constitute copyright infringement. Much of this appeared to stem from the fact that the two writers had pitched the screenplay to Disney a few years before the Pirates franchise began, but the similarities laid out in the lawsuit were classic idea/expression dichotomy stuff.

The writers and Laiter said the movies, like the screenplay, diverged from the traditional canon by portraying pirates as humorous, good men rather than terrifying brutes. They also claimed both works featured supernatural cursed, skull-faced pirates, and that actor Johnny Depp’s Captain Jack Sparrow character was substantially similar to the screenplay’s Davy Jones.But the “single purported similarity” between the widely varying plots—cursed pirates—was an idea that flows naturally from a basic plot premise and therefore unprotectable, the judge said. The dark mood driven by pirate battles and sea monsters also stemmed naturally from the pirate premise, Judge Consuelo B. Marshall said.
And so the court dismissed the suit, laying out a reasoned argument that all of the similarities the plaintiffs had brought before the court were pirate tropes of the sort one would find in pretty much every pirate movie. Any minor deviations from those tropes, even if shared by both screenplays, were not protectable. Meanwhile, there were marked differences in the screenplay and characters, with one notable exception being that the plaintiff's Davey Jones gives up pirating to work in an orphanage, while Disney's Jack Sparrow very much does nothing of the sort.Well, those writers appealed the decision and recently argued before the U.S. Court of Appeals that, basically, there are lots of other similarities that they forgot to mention in the first go around.
Creators of a pirate-themed screenplay argued Monday before the U.S. Court of Appeals for the Ninth Circuit that a lower court dismissal merely filtered unprotectable elements from the allegedly infringing movie franchise without considering their protectable arrangement. The appeals court panel seemed receptive to the idea that the case against Walt Disney Co. should have at least survived a quick dismissal by the U.S. District Court for the Central District of California.
Those creators are pointing to the recent ruling in the The Shape of Water case, which similarly was dismissed early on, only to be revived on appeal when it was argued that expert testimony during the trial could have made a difference in the outcome. But, as Disney has argued in response, that case contained far more allegations of similarity than exists here. That, according to the plaintiffs in this case, is because the court didn't hear their new argument that these piratey tropes were protectable because of their specific combined arrangement.
U.S. Circuit Judge Bridget Shelton Bade noted that section and arrangement wasn’t mentioned in the decision and asked if it was argued. Lowe acknowledged the prior legal team was denied the chance to amend its complaint a second time to add it. Bade pushed back and said the court concluded the similarities were just pirate tropes “one would expect in any pirate movie.”Lowe pointed to the opening brief, which laid out various alleged character, dialogue, plot, theme, and pacing similarities showing an architecture “identical for all intents and purposes” to the screenplay. He also said there are always “slight differences” between works, but that literary works were afforded “very thick protection.”Disney attorney Melinda Eades LeMoine of Munger, Tolles & Olson LLP said the court didn’t err by skipping the arrangement analysis because it wasn’t presented—and wasn’t present—in the case. Many of the alleged similarities could be found in various pirate tales as well as Disney’s own Pirates of the Caribbean ride, which opened in 1967 at California’s Disneyland theme park and includes alleged similarities such as a port town, skeletons, and treasure, she said.
Hard as it may be to back Disney in a copyright lawsuit, its position makes sense. There are instances where an arrangement of unprotectable elements can qualify for copyright protection due to the originality of that arrangement, but nothing the plaintiffs point out here seems to move beyond a mashed together list of pirate tropes. That, combined with the stark differences that are present in the screenplay's story and characters, really does put this back into the idea/expression dichotomy territory.And, yet, it wouldn't be terribly surprising to see the court decide that those are arguments best made at trial.
U.S. Circuit Judge Richard A. Paez said district courts can dismiss cases based on a lack of similarity, “But I think it’s difficult.” Not letting questions about arrangement and what elements were generic at least get to the summary judgment phase “just strikes me as odd,” he said.“It does seem that you’ve got to be very careful when you do that, you’ve got to be sure. What you’re saying is there’s no plausible claim,” Paez said.
To be clear, this is the court hinting that it will err on the side of caution, not any sort of affirmation that the plaintiffs have an actual case. Still, it's annoying that any creator, even Disney, would have to go through a trial over this sort of thing.

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Post No Evil: Content Moderation Decisions Are Always Trickier Than You Think

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Two years ago, we told anyone who wanted to understand the impossibility of content moderation to listen to an episode of the podcast/radio show Radiolab. Obviously, content moderation questions are back in the news again, and Radiolab recently re-released the episode with some updated content. Most of it is the same, but there's some more at the end to relate it to the latest news with the various attacks on social media coming from the president, the DOJ, and Congress.Once again, I cannot recommend anything more than listening to this entire discussion. It's full of great examples of the impossible nature of content moderation. And, it especially highlights why the various proposals brought forth by Congress that say that social media companies need to have explicit rules for what is and what is not allowed is simply not practical in the real world, where there are so many edge cases, and so many times where the policy needs to be adapted due to a new edge case. Here's just a little bit of the transcript to whet your appetite for the whole damn thing. It's an early example in the story, highlighting the difficulty of dealing with breast feeding pictures under its policy:

[NEWS CLIP: A social networking website is under fire for its policy on photos of women breastfeeding their children.]SIMON: Big time.STEPHANIE MUIR: 12,000 members participated, and the media requests started pouring in.[NEWS CLIP: The Facebook group called, "Hey Facebook: Breastfeeding is Not Obscene.]STEPHANIE MUIR: I did hundreds of interviews for print. Chicago Tribune, Miami Herald, Time Magazine, New York Times, Washington Post ...[ARCHIVE CLIP, Dr. Phil: You know, the internet is an interesting phenomenon.]STEPHANIE MUIR: ... Dr. Phil. It was a media storm. And eventually, perhaps as a result of our group and our efforts, Facebook was forced to get much more specific about their rules.SIMON: So for example, by then nudity was already not allowed on the site. But they had no definition for nudity. They just said no nudity. And so the Site Integrity Team, those 12 people at the time, they realized they had to start spelling out exactly what they meant.KATE KLONICK: Precisely. All of these people at Facebook were in charge of trying to define nudity.FACEBOOK EMPLOYEE: So I mean yeah, the first cut at it was visible male and female genitalia. And then visible female breasts. And then the question is well, okay, how much of a breast needs to be showing before it's nude? And the thing that we landed on was, if you could see essentially the nipple and areola, then that's nudity.SIMON: And it would have to be taken down. Which theoretically at least, would appease these protesters because, you know, now when a picture would pop up of a mother breastfeeding, as long as the child was blocking the view of the nipple and the areola, they could say, "Cool, no problem."KATE KLONICK: Then you start getting pictures that are women with just their babies on their chest with their breasts bare. Like, for example, maybe baby was sleeping on the chest of a bare-breasted woman and not actively breastfeeding.FACEBOOK EMPLOYEE: Okay, now what? Like, is this actually breastfeeding? No, it's actually not breastfeeding. The woman is just holding the baby and she has her top off.JAD: Yeah, but she was clearly just breastfeeding the baby.ROBERT: Well, maybe just before.SIMON: Well, I would say it's sort of like kicking a soccer ball. Like, a photo of someone who has just kicked a soccer ball, you can tell the ball is in the air, but there is no contact between the foot and the ball in that moment potentially. So although it is a photo of someone kicking a soccer ball, they are not, in fact, kicking the soccer ball in that photo.ROBERT: [laughs]JAD: [laughs] That's a good example.SIMON: And this became the procedure or the protocol or the approach for all of these things, was we have to base it purely on what we can see in the image.KATE KLONICK: And so they didn't allow that to stay up under the rules, because it could be too easily exploited for other types of content, like nudity or pornography.FACEBOOK EMPLOYEE: We got to the only way you could objectively say that the baby and the mother were engaged in breastfeeding is if the baby's lips were touching the woman's nipple.SIMON: So they included what you could call, like, an attachment clause. But as soon as they got that rule in place ...FACEBOOK EMPLOYEE: Like, you would see, you know, a 25-year-old woman and a teenage-looking boy, right? And, like, what the hell is going on there?KATE KLONICK: Oh, yeah. It gets really weird if you, like, start entering into, like, child age. And I wasn't even gonna bring that up because it's kind of gross.FACEBOOK EMPLOYEE: It's like breastfeeding porn.JAD: Is that a thing?ROBERT: Are there sites like that?SIMON: Apparently. And so this team, they realized they needed to have a nudity rule that allowed for breastfeeding but also had some kind of an age cap.FACEBOOK EMPLOYEE: So -- so then we were saying, "Okay. Once you've progressed past infancy, then we believe that it's inappropriate."SIMON: But then pictures would start popping up on their screen and they'd be like, "Wait. Is that an infant?" Like, where's the line between infant and toddler?FACEBOOK EMPLOYEE: And so the thing that we landed on was, if it looked like the child could walk on his or her own, then too old.SIMON: Big enough to walk? Too big to breastfeed.ROBERT: Oh, that could be 18 months.JAD: Yeah, that's like a year old in some cases.SIMON: Yeah. And, like, the World Health Organization recommends breastfeeding until, you know, like, 18 months or two years, which meant there were a lot of photos still being taken down.KATE KLONICK: Within days, we were continuing to hear reports from people that their photographs were still being targeted.SIMON: But ...[NEWS CLIP: Facebook did offer a statement saying ...]FACEBOOK EMPLOYEE: You know, that's where we're going to draw the line.
Suffice it to say, that is not, in fact, where Facebook drew the line. Indeed, just last year we wrote about the company still having issues with drawing the line around this particular issue.So if you want to talk intelligently about these issues, you should first listen to the Radiolab broadcast. It's only a little over an hour, and well worth your time:


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posted at: 12:00am on 09-Jul-2020
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Estate Of Sir Arthur Conan Doyle Alleges Copyright Infringement Over Sherlock's Emotional Awakening

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Let us do a little decuctive reasoning, shall we? Copyright law has a term length. While that term length has been extended to the point of near-bastardization, that copyright exists on a term at all leads any investigator to conclude that the makers of that law intended for copyright protections on a given work to come to an end. If distinct characters and settings are offered copyright protections, as they are, then it reasons that those, too, were intended to have those protections end after a prescribed period of time. And if Sherlock Holmes is a literary character, an assertion that cannot be doubted, then it stands to reason that the law as written intended for the copyright protections covering his character were also to end after a period of time.Therefore, all you Watson-esque readers witnessing my astounding logic, when the Estate of Sir Arthur Conan Doyle suggested back in 2013 in a lawsuit that the clock didn't start running as to when a character would enter the public domain until that character had ceased to be developed, the Estate's assertion clearly and undoubtedly runs afoul of the intention of those that crafted copyright law, since an author could simply forever-develop a character, and have him or her never enter the public domain! It's elementary!But not to the Conan Doyle Estate, apparently, which has sued Netflix over its forthcoming movie about Sherlock's sister, entitled Enola Holmes. In the suit itself, the estate points out in the previous court ruling that, while most of the Sherlock stories and characters are in the public domain, the remaining ten are not. Which is true! But the estate also argues that the Sherlock character is different in those last ten stories because he... wait for it... is more emotional. And, therefore, since the Sherlock character in Enola Holmes is also emotional... copyright infringement!

"After the stories that are now in the public domain, and before the Copyrighted Stories, the Great War happened," states the complaint. "In World War I Conan Doyle lost his eldest son, Arthur Alleyne Kingsley. Four months later he lost his brother, Brigadier-general Innes Doyle. When Conan Doyle came back to Holmes in the Copyrighted Stories between 1923 and 1927, it was no longer enough that the Holmes character was the most brilliant rational and analytical mind. Holmes needed to be human. The character needed to develop human connection and empathy."And so Sherlock "became warmer," continues the complaint, setting up the question of whether the development of feelings is something that can be protected by copyright and whether the alleged depiction of Sherlock in Enola Holmes is somehow derivative.
Imagine for a moment if this argument were allowed to win the day in court. Suddenly any author who managed to develop the characters in any series of novels would get never ending copyright on those characters. Luke Skywalker is suddenly a dick in Episode 8? New copyright term on his character. Harry Potter goes through puberty and gets romantic with his best friends little sister? Well, first, come on man, but also... new copyright term on his character!That isn't how any of this is supposed to work, of course. Again, it's quite obvious that the framers limited copyright to a term for a reason, and that reason was that works and characters that are protected by copyright are supposed to eventually end up in the public domain. Playing these games as to when a character that is otherwise in that public domain got some characteristic to end run around the term and still get copyright protection doesn't change that.If the court has any sense, this suit should find the garbage pail with the quickness.

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posted at: 12:00am on 09-Jul-2020
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Court Shoots Down AT&T, Comcast Attempt To Crush Maine Privacy Law

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Over at our Tech Policy Greenhouse, former FCC official and consumer advocate Gigi Sohn just got done discussing a landmark privacy case in Maine that hasn't been getting enough attention. The short version: back in 2017, the GOP killed some pretty modest FCC broadband privacy rules at the telecom lobby's behest. Despite a lot of whining from telecom giants, those rules weren't particularly onerous -- simply requiring that ISPs be transparent about what data they're collecting and who they're selling access to, while requiring that users opt in to the sharing of more sensitive financial data.Much like net neutrality, federal lobbying by telecom giants had an unintended impact: namely once the feds showed they were too corrupt and captured to protect consumers, states began passing their own laws (some good, some bad) in order to fill the consumer protection void. On both the privacy and net neutrality fronts, giant ISPs like AT&T and Comcast cried repeatedly about how this created a "discordant and fractured framework of state protections," hoping you'd ignore this was a problem the industry itself created by relentlessly attacking even the most modest federal guidelines.Last year, Maine passed one such privacy bill modeled after the discarded FCC rules. Again the focus was largely on requiring that ISPs be transparent about what data is collected and who is buying access to it, while requiring that users opt in to the share and sale of access to more sensitive data. It also banned ISPs from charging you more money just to opt out of snoopvertising, something AT&T has already experimented with. The law was not, as telecom giants and their dollar per holler allies have claimed, particularly onerous.Comcast and AT&T sued anyway in a bid to have the law thrown out before a broader trial. In short, ISP lawyers tried to argue that giving consumers control over their own data violates ISPs' First Amendment right to market goods and services. They also claimed that by passing a privacy law that specifically targeted telecom providers, the law is based on their status as a "speaker" and should be subject to "strict scrutiny" under the First Amendment, which requires a law to be "narrowly tailored to serve a compelling state interest." As Sohn noted, while the case didn't get a lot of attention, the precedent of a telecom industry win here would be terrible for future efforts to pass any kind of intelligent, industry-specific tailored privacy protections whatsoever:

"Should it accept [these arguments], it would set the stage for overturning any and all sector-specific privacy laws as unconstitutional "speaker-based" violations of the First Amendment. If that were the case, then federal and state laws regulating the privacy practices of, among others, hospitals, financial institutions, pharmacies, credit reporting agencies, and libraries would all fall. Maine alone has nearly a dozen sector-specific laws. Now multiply that by 51.
Things didn't quite work out as Comcast and AT&T had hoped. This week, a Maine court shot down AT&T and Comcast's attempt to have Maine's law trashed, ruling (pdf) in favor of Maine Attorney General Aaron Frey, who had argued that Maine's law "regulates a space Congress explicitly left open, and any conflict is a figment of Plaintiffs' imaginative pleading." In the ruling, Judge Lance Walker noted that Maine's privacy law can't conflict with federal guidelines, because the industry and government worked hand in hard to eliminate said guidelines:
"Congress's nullification of the ISP Privacy Order, therefore, creates no overarching federal policy, and enacts no scheme with which the Maine Privacy Statute can conflict."
In its net neutrality repeal (which gutted FCC oversight over ISPs), the FCC tried to include a provision banning states from protecting consumers. But courts so far haven't looked kindly upon that effort, noting that federal regulators can't abdicate their consumer protection authority, then tell states what to do. Walker again supported that position here. Walker also didn't seem to think much of the telecom industry's claim that the law violated their First Amendment rights:
"Plaintiffs' Motion simply fails to clarify how an ill-defined opt-in and opt-out regime would inhibit any protected First Amendment activity; for example, how it might chill them from preparing particular marketing materials for sale to customers. And, they have not begun to bear their burden to show the statute would be unconstitutional in "all of its applications," as they must for a facial challenge."
The case will now proceed to a full trial. But it's worth noting this is just one of several fronts where the telecom industry is lobbying to kill federal consumer protections, then arguing that states are prohibited from doing anything on their own. The industry wants to have its cake and eat it too; it's pushing for a world in which nobody anywhere would be able to hold natural, widely despised monopolies accountable for pretty much anything. Their arguments surrounding free speech are not made in good faith; they're a flimsy attempt to use the First Amendment to effectively eliminate any and all oversight of a sector with a thirty-year history of anti-competitive and often fraudulent behavior.So far, as we also saw when the net neutrality repeal tried to ban states from protecting consumers, this effort is not going particularly well. But as the courts are increasingly gutted and staffed with dutiful partisan bobbleheads, there's no guarantee that trend persists.

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posted at: 12:00am on 08-Jul-2020
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Sci-Hub Downloads Boost Article Citations -- And Help Academic Publishers

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Techdirt readers know that Sci-Hub is a site offering free online access to a large proportion of all the scientific research papers that have been published -- at the time of writing, it claims to hold 82,605,245 of them. It's an incredible resource, used by millions around the world. Those include students whose institutions can't afford the often pricey journal subscriptions, but also many academics in well-funded universities, who do have institutional access to the papers. The latter group often prefer Sci-Hub because it provides what traditional academic publishers don't: rapid, frictionless access to the world's knowledge. Given that Sci-Hub does the job far better than most publishers, it's no wonder that the copyright industry wants to shut down the service, for example by getting related domains blocked, or encouraging the FBI to investigate Sci-Hub's founder, Alexandra Elbakyan, for alleged links to Russian intelligence.These legal battles are likely to continue for some time -- the copyright industry rarely gives up, even when its actions are ineffective or counterproductive. Academics don't care: ultimately what they want is for people to read -- and, crucially, to cite -- their work. So irrespective of the legal situation, an interesting question is: what effect do Sci-Hub downloads have on article citations? That's precisely what a new preprint, published on arXiv, seeks to answer. Here's the abstract:

Citations are often used as a metric of the impact of scientific publications. Here, we examine how the number of downloads from Sci-hub as well as various characteristics of publications and their authors predicts future citations. Using data from 12 leading journals in economics, consumer research, neuroscience, and multidisciplinary research, we found that articles downloaded from Sci-hub were cited 1.72 times more than papers not downloaded from Sci-hub and that the number of downloads from Sci-hub was a robust predictor of future citations.
The paper explains which journals were selected, and the various analytical approaches that were applied in order to obtain this result. In all, the researchers compared 4,646 articles that were downloaded from Sci-Hub to 4,015 from the same titles that were not downloaded. Assuming that those are representative, and that the statistical calculations are correct, the end result is important. It suggests that articles that are downloaded from Sci-Hub are nearly twice as likely to be cited as those that aren't -- a big boost that will doubtless be of great interest to academics, whose careers are greatly affected by how widely they are cited. It seems to confirm that Sci-Hub does indeed help spread knowledge, not just in terms of the free downloads it offers, but also by virtue of leading to more citations for downloaded papers, and thus a wider audience for them.The new paper notes a rather paradoxical implication of the result. Alongside Sci-Hub, which is happy to operate outside copyright law, there are alternatives like open access journals, and preprints, which are fully within it. However, as a result of Sci-Hub's ability to boost citations:
[it] may help preserve the current publishing system because the lack of access to publications, which preprints and open access journals are trying to solve, may no longer be felt so strongly to find required increasing support.
In other words, according to this latest analysis, it turns out that the copyright industry is attacking a site whose success might be seen as a reason for not changing the current academic publishing system.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 08-Jul-2020
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More Disputes Over Trademarked Area Codes. Why Is This Allowed Again?

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There are plenty of times when I have questioned why something that the USPTO granted a trademark on should be allowed to be registered at all. But one example that flummoxes me the most is that you can go out there and trademark area codes. You don't hear about this all that much, but AB InBev made this somewhat famous when it acquired Chicago's Goose Island Brewing, including the trademark for its "312" brand of beer, and proceeded to file for trademarks on allllllll kinds of area codes.Why? Why can a company lock up an identifier for a geographic region in any market designation? The answer according to some is that the USPTO has decided that area codes aren't purely geographic descriptions.

If consumers encounter an area code being used as a trademark, will consumers likely think that product comes from the region identified by the code, or will it be viewed as a tribute to the region?   Perhaps we’ll see if A-B expands its use of area codes. The USPTO generally does not consider area codes to be merely geographically descriptive and thus area codes used as trademarks are registrable without a showing of acquired distinctiveness.
Someone is going to have to explain this to me. Go throw the term "area code" into Google. The returning results will be of one or two categories. Either you will get a link to a series of tables that match a given area code with a state, city, or county, or you will get an actual map showing where specific area codes lie in different regions. Both of those things are denoting geographic reasons. The area code has the word area in it. What the absolute hell is the USPTO talking about?Because this is still causing problems with some individuals using area code marks to bully everyone else.
Fred Gillich, the owner of Too Much Metal and 414 Milwaukee, started his 414 brand in 2012. His stylized version of the area code appears on T-shirts, hats, glassware and flags – one of which hung from City Hall last spring. Beard MKE, a local retail company, partnered with Cream City Print Lounge, also Milwaukee-based, to create a "414 All" shirt to benefit the Cream City Foundation that works to protect the rights of the LGBTQ+ community.Gillich sent Beard MKE a cease and desist letter earlier this month, and was not satisfied with the company's response. And so he went to social media and made a post calling out Beard MKE for using the 414 area code on a shirt with the image below.
The response to Gillich attempting to publicly shame another group that was handing proceeds from merch sales bearing the "414" area code to charity was almost universally negative. Comments from legal experts mostly amounted to: "Yeah, the USPTO gave him the mark, so he can bully whoever he wants over it." As though nobody can get to the next logical question, which is to ask why this is allowed at all? The mark is so broad, and so tied to a geographic region, it serves as the source identifier of nothing at all, save maybe an entire region.And Gillich has made a habit of this sort of thing.
"This is not the first time he's done this to a small business and no one has the time or the money for legal support," says Crosby.Gillich says he just wants companies to partner with him rather than use the trademarked 414 without permission."I survive on my creativity and when I see it being appropriated, the question becomes who's hurting whose small business?" says Gillich. "I am protecting my livelihood."
Ah, yes, the creativity of noticing that you live in a certain area code and then trademarking it. Hey, USPTO, bang up job here, fellas.

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posted at: 12:00am on 07-Jul-2020
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Lawsuit & Bi-Partisan Group Of Senators Seek To Push Back On Trump Administration's Attempt To Corrupt The Open Technology Fund

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Last month we wrote about how the newly appointed head of the US Agency for Global Media (USAGM) had cleaned house, getting rid of the heads of the various organizations under the USAGM umbrella. That included Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, Middle East Broadcasting... and the Open Technology Fund. The general story making the rounds is that Pack, a Steve Bannon acolyte, planned to turn the famously independent media operations into a propaganda arm for the Trump administration. Leaving side the concerns about why this is so dangerous and problematic on the media side, we focused mostly on the one "different" organization under the USAGM banner: the Open Technology Fund.OTF is incredibly important to a functioning and open internet -- especially one where freedom and privacy to communicate can work around the globe, with a focus on funding audited, open source technologies. Last week, Vice had a detailed story about what it describes as "the plot to kill the Open Technology Fund." In it, it notes that Pack wants OTF to fund two apps that are not open source, Freegate and Ultrasurf. While both claim to be about helping circumvent internet censorship, most activists don't trust those apps. Indeed, it notes that the developer behind Ultrasurf agreed to a security audit by the US government, but then threatened the company who did the audit with legal action if it made the report public:

VICE News has learned that Ultrasurf recently underwent a security audit to assess if the app contained any critical security flaws. The audit was conducted at the request of the State Department as a condition of funding, but the report has not been published.This was because the developer of Ultrasurf wanted a reference to a high-severity bug removed from the report, according to a source at the company that conducted the audit, Cure53.The developer, who uses the pseudonym Clint to protect his family in China, subsequently threatened Cure53 with legal action if they ever published the report. Clint told VICE News the audit was sort of like a trap and that the report was not made public because it would reveal too much about his source code.
Let's be clear: if publishing a security audit about your software will reveal too much about your source code your app is not secure.So why would OTF under Pack's command suddenly be interested in funding these closed source, highly questionable apps? You guessed it:
Mainly because prominent individuals with strong links to Pack have spent the better part of the last decade repeatedly pushing these apps to receive tens of millions of dollars in funding from the U.S. government, without providing any evidence that the technology will succeed.The two loudest proponents of these technologies are Michael Horowitz, a former director of the Project for International Religious Liberty at the Hudson Institute, and Katrina Lantos Swett, the president of the Lantos Foundation Human Rights and Justice.
The former heads of OTF told Vice that they received a threatening call from Swett basically saying that if OTF didn't fund these questionable apps, she would lean on Pack to retaliate against OTF:
In March, around the time Trump decided to pressure Republicans in the Senate to confirm Pack's appointment, Libby Liu, OTF's CEO, and Laura Cunningham, OTF's president, got a phone call from Swett and her colleagues to discuss funding for large-scale circumvention tools to help people in China bypass the Great Firewall.Swett described it as a very professional and a very cordial call, but that's not how Liu and Cunningham remember it.It was quite threatening, Cunningham told VICE News. They said that they were very close with Michael Pack [and] told us that there was a lot of disappointment that we were not funding the most effective circumvention tools out there. Their advice was that if we wanted to make sure we stayed in CEO Pack's good graces, that we needed to reorient our funds immediately to support those technologies.Liu says Swett and her colleagues lectured us, you know, round robin-style, and threatened us.
Vice also shows Horowitz showing up on Steve Bannon's radio show last month directly saying that Libby Liu should be fired (though he mistakenly claims she's part of Radio Free Asia, which used to house OTF, but OTF has been spun out separately from RFA for a while now):
In that video, you see Bannon ask Horowitz to repeat the name of who he wanted fired, and apparently write down Liu's name while saying "okay." Days later, Liu and Cunningham were both fired by Pack (incredibly, Liu had already resigned, but Pack doubled down and fired her anyway).In response, OTF itself and the board members of many of the USAGM organizations have now sued Michael Pack, arguing that he has no right to fire people:
Although funded by Congress through grants administered by the Agency, the fourorganizations targeted by Mr. Pack are not part of the government. Their employees are notgovernment employees. They are private, nonprofit organizations with their own leadership andindependent boards of directors. That is by design. Their mission, collectively, is to promote thefree flow of information worldwide, especially in countries where authorities restrict freedom ofexpression. They do this through global efforts to combat online censorship and news broadcastsin 61 different languages, reaching 400 million people each day. But they can only be effective incountering disinformationandcensorshipiftheyarerightly perceivedasindependent,professional, and fact-drivennot as official mouthpieces for some partisan agenda. To ensure theintegrity and credibility of this vital work, their independence from political interference isprotected by a strict firewall embodied in statutes, regulations, and binding contract provisions.Mr. Pack's actions this past week constitute the most egregious breach of that firewall in history.[....]Mr. Pack's actions are unlawful in at least two critical respects. First, with respect to OpenTechnology Fundan independent nonprofit dedicated to advancing global Internet freedomPacklacks any legal authority whatsoever to remove its officers or directors. The statutory authorityand bylaws on which Mr. Pack purported to rely do not remotely confer any such authority.Second,although Pack does have limited statutory authority with respect to personnel decisions at the otherthree organizations, that authority is strictly constrained by statute, regulation, and contract. Withrespect to all four organizationsRadio Free Europe, Radio Free Asia, the Middle EastBroadcasting Networks, andOpen Technology FundMr. Pack's attempt to remove theorganizations' officers and directors across the board constitutes an impermissible breach of thefirewall. So does his attempt to freeze funds. Indeed, in each of its grant agreements with theseorganizations, the Agency has pledged to honor these statutory and regulatory obligations and isprohibited from tak[ing] any . . . action that may tend to undermine the organizations'journalistic credibility or independence.Mr. Pack's actions impermissibly breach the firewall.It is hard to conceive of a more serious breach of the organizations' legally protected independencethan the wholesale decapitation of their leadership by an ideologically-oriented maker of politicalfilms, installed by the President for the stated purpose of altering the organizations' content.
On top of that, it seems that these moves by Pack to clean house have at least raised surprisingly bi-partisan concerns in Congress. A group of Senators led by Marco Rubio have sent a letter to Pack demanding an explanation and making it clear that USAGM is supposed to be independent of politics.
As the United States faces global challenges in the information space, it cannot afford toinvest in an enterprise that denigrates its own journalists and staff to the satisfaction of dictatorsand despots, nor can it be one that fails to live up to its promise of providing access to a free andindependent press. Congress set up these networks, and its governance structure at USAGM, topreserve the grantees' independence so they can act as a bulwark against disinformation throughcredible journalism.We urge you to respect the unique independence that enables USAGM's agencies andgrantees to help cultivate a free and open world. Given the bipartisan and bicameral concernwith recent events, we intend to do a thorough review of USAGM's funding to ensure thatUnited States international broadcasting is not politicized and the agency is able to fully andeffectively carry out its core mission.
Beyond Rubio, the letter is signed by some fairly powerful Senators on both sides of the aisle: Dick Durbin, Lindsey Graham, Pat Leahy, Jerry Moran, Susan Collins and Chris Van Hollen. Will it convince Pack to back off? Who knows, but at least it's nice to see that in this one very important area, some Senators have the backbone to push back against what appears to be a very swampy, corrupt move by this administration.

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posted at: 12:00am on 07-Jul-2020
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This Week In Techdirt History: June 28th - July 4th

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Five Years AgoThis week in 2015, a missing document from the FISA court docket suggested that there was yet another undisclosed bulk records collection program hiding somewhere, while newly-released Wikileaks documents revealed that, despite its denials, the NSA was engaged in economic espionage, and a fresh FISA order authorised "as-is" phone recrod collections for the next six months. Just like today, the FBI was on an anti-encryption streak, fearmongering about "going dark" despite actual wiretaps almost never running into encryption. And the MPAA was launching another ad campaign against piracy... targeted at paying customers, for some reason.Ten Years AgoThis week in 2010, we looked at the list of ten questions for ACTA negotiators that were being taken to a meeting in Sweden, and unsurprisingly got more of the same old stuff for answers. We looked at an economic analysis of the Viacom/YouTube decision, and then at the new important ruling of the week: the Supreme Court's narrow take on Bilski, which let business method and software patents survive while leaving the door open for future cases that might change things — all of which required a bit of tea leaf reading to determine what the court was truly thinking about software patents.Fifteen Years AgoThis week in 2005, the Supreme Court issued its expected rulings in both the Grokster and BRand X cases, with a mixed bag of results — while former RIAA boss Hilary Rosen suddenly realized this kind of fight was probably harming the RIAA's future. A Taiwanese court ruled that file sharing software is perfectly legal, while Sweden's terrible file sharing law went into effect. Meanwhile, AMD resurrected its antitrust attack on Intel, and took out a bunch of ads to make its case to the public, though we wondered if the public would actually care.

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posted at: 12:00am on 05-Jul-2020
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That Was Quick: Appellate Court Says Simon & Schuster Not Subject To Prior Restraint Order Over Mary Trump's Book; But Fight's Not Over Yet

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Yesterday we wrote about how Charles Harder, representing the President's brother, was able to get a highly questionable temporary restraining order (TRO) against Mary Trump and Simon & Schuster not to publish Mary Trump's book "Too Much and Never Enough, How My Family Created the World's Most Dangerous Man." We noted that the prior restraint seemed unlikely to survive appellate scrutiny, and within a few hours it was already greatly limited. NY Appellate Court judge Alan Scheinkman wrote a much more thorough opinion than the (lower and misleadingly named) Supreme Court judge's ruling on the TRO.In it, he says that the TRO should be lifted from Simon & Schuster as a non-party to the confidentiality agreement signed between Mary Trump and others in her family. However, that does not necessarily mean the publication will go ahead. A somewhat modified order remains in place against Mary Trump, with the recognition that the more thorough hearing about the order will take place prior to the book's planned release anyway, which the judge seems to feel means that the order is not yet restricting any speech.

S&S is not a party to the settlement agreement. The only basis offered by the plaintiffto extend the temporary restraining order to S&S are the allegations that S&S intends to act on Ms.Trump's behalf in causing the publication of the book and that S&S is acting at Ms. Trump'sdirection and in concert with her. However, these allegations are conclusory and not supported byany specific factual averments. Unlike Ms. Trump, S&S has not agreed to surrender or relinquishany of its First Amendment rights (see Ronnie Van Zant, Inc. v Cleopatra Records, Inc., 906 F3d at257). Since the predicate for the plaintiff's application for a temporary restraining order is theexistence of the confidentiality provision of the settlement agreement (and no alternate basis for aninjunction against Ms. Trump is either suggested or apparent), and S&S is not a party to thesettlement agreement, this Court perceives no basis for S&S to be specifically enjoined.
However, it does appear that Simon & Schuster is not out of the woods yet entirely. Apparently the heavily lawyered-up agreement that the Trump family signed 20 years ago did include a clause that does allow for an injunction against "any agent" acting on a signatories' "behalf" may also be covered by an injunction. But, the judge argues, there is not enough of a briefing record to establish if S&S qualifies. So, while the order directly regarding S&S is lifted, it is possible that following the hearing next week at the (again, lower) Supreme Court regarding the permanent injunction, it could bring S&S back in under that umbrella:
While the plaintiff has alleged, in effect, that S&S is Ms. Trump's agent, theevidence submitted is insufficient for this Court to determine whether the plaintiff is likely tosucceed in establishing that claim. So, while the plaintiff is entitled to have the temporary restrainingorder bind any agent of the plaintiff, this Court will not name S&S as being such an agent.
So now, the parties get to fight out over the larger permanent injunction next week, which could bring this debate back around again pretty quickly.It is worth noting that the court also does nod towards the public interest argument for being one reason why an injunction might not be appropriate, but it is only doing so in acknowledging that argument, not tipping one way or the other on it:
The passage of time and changes in circumstances mayhave rendered at least some of the restrained information less significant than it was at the time and,conversely, whatever legitimate public interest there may have been in the family disputes of a realestate developer and his relatives may be considerably heightened by that real estate developer nowbeing President of the United States and a current candidate for re-election. Drawing the appropriatebalance may well require in camera review of the book sought to be enjoined. Stated differently, thelegitimate interest in preserving family secrets may be one thing for the family of a real estatedeveloper, no matter how successful; it is another matter for the family of the President of the UnitedStates.
So... the fight to publish the book will continue next week.One element in this case that I haven't seen much talked about, but also does deserve some scrutiny: the decision to have the case filed by Donald Trump's brother, Robert Trump. This is, somewhat obviously, a flimsy front for the president himself. He's using the president's own lawyer, who has represented the president in a bunch of other cases. It appears that the confidentiality agreement was signed on one side by the president, Robert Trump, and their sister Maryanne Trump Barry a former federal judge. While there may be some expediency reasons to try to pretend that this is really on behalf of the less-well-known brother it still seems like an odd choice for multiple reasons.First off, basically everyone recognizes this is really to help the president and not so much his brother. So having Robert be the plaintiff does little to actually shield the president. But, more importantly, if there are any "damages" from the breach of this agreement, it sure seems like Donald Trump would have the strong argument for those, as opposed to Robert Trump. But, perhaps Harder is hoping that using Robert Trump somehow gets the court not to consider the public interest argument as laid out above -- saying that this case is not actually about the private behind the scenes events related to the President of the United States, but rather his much less well known brother. I have trouble seeing that argument passing muster, but who knows. I didn't think a judge would engage in prior restraint either, and that turned out to be wrong.

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posted at: 12:00am on 03-Jul-2020
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Research Libraries Tell Publishers To Drop Their Awful Lawsuit Against The Internet Archive

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I've seen a lot of people -- including those who are supporting the publishers' legal attack on the Internet Archive -- insist that they "support libraries," but that the Internet Archive's Open Library and National Emergency Library are "not libraries." First off, they're wrong. But, more importantly, it's good to see actual librarians now coming out in support of the Internet Archive as well. The Association of Research Libraries has put out a statement asking publishers to drop this counter productive lawsuit, especially since the Internet Archive has shut down the National Emergency Library.

The Association of Research Libraries (ARL) urges an end to the lawsuit against the Internet Archive filed early this month by four major publishers in the United States District Court Southern District of New York, especially now that the National Emergency Library (NEL) has closed two weeks earlier than originally planned.
As the ARL points out, the Internet Archive has been an astounding "force for good" for the dissemination of knowledge and culture -- and that includes introducing people to more books.
For nearly 25 years, the Internet Archive (IA) has been a force for good by capturing the world's knowledge and providing barrier-free access for everyone, contributing services to higher education and the public, including the Wayback Machine that archives the World Wide Web, as well as a host of other services preserving software, audio files, special collections, and more. Over the past four weeks, IA's Open Library has circulated more than 400,000 digital books without any user costincluding out-of-copyright works, university press titles, and recent works of academic interestusing controlled digital lending (CDL). CDL is a practice whereby libraries lend temporary digital copies of print books they own in a one-to-one ratio of loaned to owned, and where the print copy is removed from circulation while the digital copy is in use. CDL is a practice rooted in the fair use right of the US Copyright Act and recent judicial interpretations of that right. During the COVID-19 pandemic, many academic and research libraries have relied on CDL (including IA's Open Library) to ensure academic and research continuity at a time when many physical collections have been inaccessible.As ARL and our partner library associations acknowledge, many publishers (including some involved in the lawsuit) are contributing to academic continuity by opening more content during this crisis. As universities and libraries work to ensure scholars and students have the information they need, ARL looks forward to working with publishers to ensure open and equitable access to information. Continuing the litigation against IA for the purpose of recovering statutory damages and shuttering the Open Library would interfere with this shared mutual objective.
It would be nice if the publishers recognized this, but as we've said over and over again, these publishers would sue any library if libraries didn't already exist. The fact that the Open Library looks just marginally different from a traditional library, means they're unlikely to let go of this stupid, counterproductive lawsuit.

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posted at: 12:00am on 03-Jul-2020
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How An NYPD Officer Can Hit A Teen With His Car In Front Of Several Witnesses And Get Away With It

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The NYPD has made internal discipline procedures a loop so closed that even its "independent" oversight -- the Civilian Complaint Review Board -- can't get in the door. The NYPD is effectively its own oversight. Decisions made by the CCRB can be overridden by the Police Commissioner. Even if the Commissioner agrees with the findings, recommended punishments can be departed from or ignored completely.This story of police misconduct springs from this accountability void. ProPublica journalist Eric Umansky lives in New York City. Last year, while trick-or-treating with their daughter, his wife witnessed an unmarked police car hit a black teen. This happened in full view of several witnesses, including a person who worked at a business near the scene of the accident.

“Yeah, I saw a cop car hit a kid,” a waiter told me. He said he had a clear view of it: A handful of kids were running. One of them jumped out into the street and got hit by the police car, “probably going faster than he should have been.” He saw the boy roll over the hood and fall to the ground: “It sounded like when people hit concrete. It made a horrible sound.”
This eyewitness account agreed with what Umansky's wife had seen. But the end result wasn't a plainclothes officer being cited or disciplined for hitting a kid with his car. Instead, it was just a small part of a full-blown police rollout, where officers swarmed the street to run black teens and pre-teens up against the nearest wall.Apparently, this is how an investigation unfolds. Officers were responding to a report that a group of teen boys had attacked another teen and stolen his cell phone. One of the officers responding was in plainclothes, driving an unmarked car against traffic. This was the officer that hit one of the running teens. A bunch of other teens who just happened to be on the street were picked up by cops and hauled to the station.Umansky tried to follow up on this incident. The kids arrested by the officers were all released around one a.m. the next morning. They were given no paperwork on their arrests or the names of their arresting officers. Umansky was at the station the night it happened and couldn't get answers from any NYPD personnel.He called the next day and talked to the NYPD's spokesman, who happens to be a former journalist. This was a dead end as well. The spokesman, Al Baker, simply said the arrested teens were being charged with resisting arrest. But this was the real kicker: the official word from the NYPD was that this was teen-on-car action, not the other way around.
I spoke to four witnesses, including my wife. All of them said they saw the same thing. When I called Baker back, he told me that my wife and the three others were mistaken. The car hadn’t hit the kid. The kid had hit the car.As his statement put it: “One unknown male fled the scene and ran across the hood of a stationary police car.”
And that was it. The NYPD declared its own officer free of guilt or responsibility. There's still an investigation open, but there's little chance this will result in discipline of the plainclothes officer. In fact, there's little chance it will ever be resolved at all. At this point, the CCRB has 2,848 open investigations. And, as Umansky's article points out, moving these forward is almost impossible at this point.
Since the pandemic started, officers haven’t allowed CCRB to interview them remotely, meaning investigations have effectively stalled. The police unions had objected to doing it over video.“We won’t do Zoom,” one union spokesman told The City. The CCRB is re-starting in-person interviews soon. It noted 1,109 investigations are awaiting police officer interviews.Most CCRB investigations aren’t completed, and not just because of police intransigence. The roughly 100 investigators can only handle so many cases at once.
Thanks to the pandemic, the CCRB's budget has been cut, meaning there's even fewer investigators digging into thousands of cases containing allegations against officers who refuse to speak to them.Even if the CCRB decides it would rather watch a recording of the alleged incident, rather than deal with a more uncooperative witnesses, it's not going to find anything there either. First off, the NYPD stonewalls CCRB request for camera footage. Then it finds some reason to deny the request. If it can't deny the request, the CCRB will receive the footage -- with any redactions the NYPD feels are necessary -- months after it has asked for it.More immediate access to footage is possible, but it involves having to travel to the precinct to watch the footage while bound, gagged, and heavily-supervised.
CCRB investigators can now go to a room and watch footage. The agreement stipulates that CCRB staff can only take notes. They cannot record anything or use footage they see of abuse that happens to be different from the specific incident they’re investigating. They must sign a nondisclosure agreement.
With all of these unaccountaiblity practices in place, it comes as no surprise the NYPD would claim a person hit by a car driven by one of their officers was actually just an assault on an innocent police car by a person fleeing the forces of justice.

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posted at: 12:00am on 02-Jul-2020
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NY Judge Apparently Unaware Of The Supreme Court's Ban On Prior Restraint: Puts Temporary Restraining Order On Trump's Niece's Book

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Last week, we wrote about the president's brother, Robert Trump, suing his (and the president's) niece, Mary Trump to try to block her from publishing her new book that criticizes the president. The initial filing to block the publication failed for being in the wrong court, but the follow up attempt has succeeded, at least temporarily. NY Supreme Court (despite the name, this is the equivalent of the district court in NY) Judge Hal Greenwald doesn't seem to have even bothered to do even a cursory 1st Amendment analysis regarding prior restraint, but agreed to rush out a temporary restraining order, while ordering the the parties to brief the matter before July 10th on whether or not the ban should be made permanent.This is not how this works. As Walter Sobchek famously explained: "the Supreme Court has roundly rejected prior restraint." Or, as 1st Amendment lawyer Ken "Popehat" White notes:

Mary Trump's lawyer, Ted Boutrous (who knows this stuff better than you do) says that they'll be appealing. According to the Courthouse News link above:
The trial court's temporary restraining order is only temporary, but it still is a prior restraint on core political speech that flatly violates the First Amendment, Theodore Boutrous, an attorney for Mary Trump with the firm Gibson Dunn, said in a statement. We will immediately appeal. This book, which addresses matters of great public concern and importance about a sitting president in election year, should not be suppressed even for one day.
The lawyer for Robert Trump, Charles Harder (who, yes, once was the lawyer in a case against us), did his usual song-and-dance as well:
The actions of Mary Trump and Simon & Schuster are truly reprehensible, Harder said, referring to the book's publisher.
Publishing a book that reveals important public information about the President of the United States is the opposite of reprehensible. What is "reprehensible" is abusing the law to file censorious SLAPP lawsuits on behalf of the rich and powerful.He went on:
We look forward to vigorously litigating this case and will seek the maximum remedies available by law for the enormous damages caused by Mary Trump's breach of contract and Simon & Schuster's intentional interference with that contract, Harder added. Short of corrective action to immediately cease their egregious conduct, we will pursue this case to the very end.
Harder and Robert Trump will lose this case and the book will be published. The 1st Amendment and free speech will win, no matter how many times Harder seeks to deny such basic rights to people.

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posted at: 12:00am on 02-Jul-2020
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Prosecco People Move On From Bullying Puns Over Trademark To Bullying Portmanteau Over Trademark

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Back in 2018, we wrote about the Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, heretofore called only "The Prosecco People" to save my brain, opposing the trademark for a pet treats company over its branded doggy drink "Pawsecco." The EU IPO, in one of the most bizarre trademark rulings I've ever seen, acknowledged that there was almost no chance for any actual customer confusion over the use of "Pawsecco", but found in favor of The Prosecco People anyway, strictly because Prosecco was a well-known thing, and Woof and Brew's pun was referencing a well-known thing. That is simply not the purpose of trademark law. The entire idea is that the public shouldn't be confused in a given market of goods as to the origin of competing products. Pet drinks and Italian knockoffs of champagne seem fairly distinct in the marketplace.As do alcoholic and non-alcoholic drinks, for that matter, and yet here come The Prosecco People again. This time, they are going after a French wine group that created a non-alcoholic sparkling grape drink and named it "Nosecco."

A French wine group is challenging a decision that its non-alcoholic Nosecco brand unlawfully evoked the protected Italian category Prosecco. Les Grands Chais de France said the name wasn’t meant to rival Prosecco in the U.K., but rather to highlight the lack of alcohol and the sweetness of its own version.“It’s emphatically saying ‘no’. No to alcohol, it’s no to being dry.” said Denise McFarland, a lawyer for the French group. “It sits there in gold and black,” on the label, she said Friday.
Here we'll have to see just how and when British courts will break from EU precedent given the whole Brexit thing. But, if EU precedent still holds, it feels virtually impossible for the Nosecco people to win over The Prosecco People in this case. If pet drinks aren't distinct enough from alcohol to stave off trademark opposition, non-alcoholic human drinks probably don't stand a chance.And, yet, you'd have to expect that ruling to carry the same admission over a lack of consumer confusion. After all, the whole point of the Nosecco name is to give a nod towards Prosecco while creating the distinction of the lack of alcohol. Prosecco, mind you, isn't really a brand in and of itself. It's a drink type, like Champagne. That it has protected status in the EU at all is fairly silly, but it's still the case that Nosecco doesn't compete with a single brand, but rather a loose consortium of Prosecco producers.Even The Prosecco People are pointing to the idea that Nosecco brings "to mind" Prosecco.
The Italian producers said in a legal filing it was “abundantly clear” that the Nosecco brand brought to mind their own wine, which is protected by European Union rules on origin.
Well, yeah. That's the entire point. Sort of like how the entire point of trademark law is to protect from customer confusion, which almost certainly doesn't exist in this case. It would be nice if the courts could keep that in mind this go-round.

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posted at: 12:00am on 01-Jul-2020
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Copyright Troll Richard Liebowitz Benchslapped And Sanctioned AGAIN In A Massive Filing Detailing Pages Upon Pages Of Him Lying Under Oath

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Do you have a bit of time? I'd suggest, before digging in here, that you get yourself a nice cup of something warm, and maybe a little snack to go with it. Because there's a lot to read here, and you're not going to want to stop. It goes on for quite a while, but it's all worth it. Every bit of it.We've written a bunch about copyright trolling lawyer Richard Liebowitz and his long history of having judges yell at and issue monetary sanctions on him, and I'd repeat some examples and link back to them (though you can just click on the link above and see all our stories about him) but why go through all that work when Judge Jesse Furman in the Southern District of NY helpfully has done it for us in his latest opinion involving a Richard Liebowitz case. Let me just say, that when a judge's opinion opens this way, it's (1) going to be a fun read (2) except if your Richard Liebowitz (and his clients).

Richard Liebowitz, who passed the bar in 2015, started filing copyright cases in thisDistrict in 2017. Since that time, he has filed more cases in this District than any other lawyer: atlast count, about 1,280; he has filed approximately the same number in other districts. In thatsame period, he has earned another dubious distinction: He has become one of the mostfrequently sanctioned lawyers, if not the most frequently sanctioned lawyer, in the District.Judges in this District and elsewhere have spent untold hours addressing Mr. Liebowitz'smisconduct, which includes repeated violations of court orders and outright dishonesty,sometimes under oath. He has been called a copyright troll, McDermott v. Monday Monday,LLC, No. 17-CV-9230 (DLC), 2018 U.S. Dist. LEXIS 184049, at *9-10 (S.D.N.Y. Oct. 26,2018); a clear and present danger to the fair and efficient administration of justice, Mondragonv. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *13 (D. Colo. May11, 2020); a legal lamprey[], Ward v. Consequence Holdings, Inc., No. 18-CV-1734 (NJR),2020 WL 2219070, at *4 (S.D. Ill. May 7, 2020); and an example of the worst kind of lawyering, id. at *3. In scores of cases, he has been repeatedly chastised, warned, ordered tocomplete ethics courses, fined, and even referred to the Grievance Committee. And but for hispenchant for voluntarily dismissing cases upon getting into hot water, the list of cases detailinghis misconduct set forth in an Appendix here would undoubtedly be longer.
Yeah. That opening does not bode well for Liebowitz. And what seems to confuse both me and Judge Furman is why the fuck does Liebowitz continue to do the same damn thing over and over again, pissing off judges. Especially when he's before a judge who has already called him out, you'd think that young Richard would be extra careful. But that does not appear to be within the skill set of Richard Liebowitz.
One might think that a lawyer with this record would tread carefully, particularly before ajudge who had recently sanctioned him. See Rice v. NBCUniversal Media, LLC, No. 19-CV-447(JMF), 2019 WL 3000808, at *4 (S.D.N.Y. July 10, 2019). But as this case makes clear not Mr. Liebowitz. In November of last year, Mr. Liebowitz appeared, in the company of acriminal defense lawyer, before another judge on this Court after being held in contempt forrepeatedly lying, including under oath, about the date his own grandfather had died to justify hisfailure to attend a court conference. See Berger v. Imagina Consulting, Inc., No. 18-CV-8956(CS), ECF No. 62 (S.D.N.Y. Nov. 13, 2019) (Berger Tr.). The very next day, he appearedbefore the undersigned and despite an explicit warning to be very, very, very careful aboutthe representations he made in court lied about his compliance with a court Order that hadrequired an in-person mediation. See ECF No. 50 (Initial Conf. Tr.), at 7. Making mattersworse, Mr. Liebowitz then repeated that lie, over and over, and ultimately under oath during anevidentiary hearing. On top of that, he violated at least six court Orders. And to cap it off,defense counsel discovered only after incurring the expenses of litigating the case that theComplaint Mr. Liebowitz prepared and filed contained a false allegation namely, that thephotograph at issue in this case had previously been registered with the Copyright Office thatwould have required dismissal of the lawsuit at its inception.
That's the second paragraph of the opinion. As for where all of this is heading, I'll cut to the chase: Judge Furman is sanctioning Liebowitz. And more.
For the reasons stated below, the Courtconcludes that sanctions are amply justified, indeed all but required, and orders a mix ofsubstantial monetary and non-monetary sanctions against Mr. Liebowitz and his firm. The Courtalso refers Mr. Liebowitz to the Court's Grievance Committee to evaluate whether he should beallowed to continue practicing law in this District.
As for the specifics of what went wrong in this specific case, it's yet another example of Liebowitz doing the Liebowitz thing, which is basically not paying attention to any of the details or requirements involved in practicing law in this manner, and misrepresenting a variety of things to both the court and his client. It's... not good. This case, like the others, is a copyright trolling case, on behalf of a photographer, Arthur Usherson, claiming that an artist management firm, Bandshell, had infringed on a Usherson photo of musician Leon Redborne on its website. The court pushed the case into a mediation program to see if a settlement could be reached without having to waste everyone's time and money. The order for mediation was pretty straightforward, and told the parties to conduct a mediation effort before September 26, 2019. Liebowitz was also told to file proof of service of the complaint as well as some details on the licensing of the photograph. Guess how well he did in following these instructions?
Mr. Liebowitz failed to comply with these mandates. First, although the summons andComplaint were served on Bandshell on September 5, 2019, Mr. Liebowitz did not file proof ofthat service until September 21, 2019. ECF No. 7. Second, he failed to produce the requireddiscovery by September 19, 2019, fourteen days after service was made. When defense counselfollowed up about the missing discovery, Mr. Liebowitz responded on September 20, 2019: Myclient is still looking but as of now doesn't look like any licensing for this photo. ECF No. 16,at 12. Finally, Mr. Liebowitz failed to participate in mediation by September 26, 2019, twoweeks before the initial pretrial conference originally scheduled for October 10, 2019. Instead,more than a week after the deadline passed, Mr. Liebowitz filed a letter in which he suggestedthat the mediation had not taken place because of a failure on the part of the Mediation Office toassign a mediator. See ECF No. 12. In the same letter, Mr. Liebowitz requested leave to hold atelephonic mediation on October 8, 2019, or an extension of the mediation deadline andadjournment of the initial pretrial conference.
Judge Furman, at this point, pointed out that Liebowitz blaming the Mediation Office for his own failures was not a good look, but gave him a chance to make it right. Let's see how that all went:
In an Order dated October 7, 2019, the Court admonished Mr. Liebowitz for unfairlytrying to place blame on the Mediation Office for his own failure to meet the mediation deadline.... The Court nevertheless concluded that early mediation in the normal course (i.e., in person) makes sense.... Accordingly, the Court adjourned the initial pretrialconference to November 14, 2019, and ordered, in no uncertain terms, that [t]he parties shallconduct the in-person mediation no later than October 31, 2019. ... In an email exchange laterthat day, Bandshell's counsel, Brad Newberg, asked Mr. Liebowitz if any of October 11, 16, 28or 31 work for the [sic] both of you and Mr. Usherson. ... Mr. Liebowitzresponded that October 31st at 12pm works. ... The mediator (the Mediator) a memberof this Court's mediation panel, but recruited by Mr. Liebowitz himself to mediate this particularcase approved the date and scheduled the mediation....On October 31, 2019, however, neither Mr. Liebowitz nor Mr. Usherson showed up atthe mediation. Instead, Mr. Liebowitz sent two associates James Freeman and RebeccaLiebowitz (Mr. Liebowitz's sister)... Neither had entered an appearance in thiscase. In fact, Mr. Liebowitz did not even tell Mr. Freeman about the existence of this matteruntil about 8:00 p.m. on October 30, 2019, the night before the mediation.... Ms.Liebowitz, moreover, was a newly admitted lawyer who was attending only to 'shadow' Mr.Freeman and learn from the process. ... Mr. Freeman and Ms. Liebowitz spokebriefly with Mr. Newberg and Bandshell's principal, who did attend in person, but no settlementwas reached. The Mediator later attributed the failure to reach an agreement in part to the lackof personal appearance[s] by Mr. Liebowitz and Mr. Usherson.
Yikes! At that point, Bandshell, reasonably requested sanctions against Liebowitz. Now, if you were a betting person, would you think that Liebowitz apologized and promised to do better? Or that he kept digging. Oh, you guessed it right, didn't you? Because you know where this is going:
In response, Mr. Liebowitz asserted repeatedly that he and Mr. Usherson had received approval in advance from the Mediatornot to appear at the mediation in person. Mr. Liebowitz made this claim first in a joint letterfiled shortly before the initial pretrial conference.... In that letter, Mr.Liebowitz claimed that the Mediator had indicated that Plaintiff was permitted to appeartelephonically under Rule 9F of the mediation program.... Notably, in the same sectionof the letter, Bandshell responded that virtually everything in Plaintiff's statement is false, andDefendant's counsel has warned Plaintiff against filing a false statement regarding the scheduledmediation with the Court....Mr. Liebowitz doubled down in his next submission: his initial response to thesanctions motion, which took the form of a three-page letter (in violation of Local Rule 7.1,which requires that, with limited exceptions inapplicable here, opposition to a motion must be inthe form of a memorandum of law).... To the extent relevant here, Mr.Liebowitz asserted in that letter that [n]othing in the Court order or mediation rules states thatlead counsel needs to attend the mediation. ... Rule 9(c) of the Mediation Program'sProcedures, however, provides explicitly that [e]ach represented party must be accompanied atmediation by the lawyer who will be primarily responsible for handling the trial of the matter.Rule 9(c), Procedures of the S.D.N.Y. Mediation Program (Dec. 26, 2018) (Mediation Rules)....More significantly for present purposes, Mr. Liebowitzrepresented that Mr. Usherson had obtained permission from the assigned mediator . . . toappear at the scheduled mediation by telephone provided that counsel was present in person.... (citing Rule 9(f) of the Mediation Rules, which allows a party who residesmore than 100 miles from the Courthouse to participate in a mediation by telephone with theadvance approval of the mediator). He further claimed that he had told [the Mediator] that anassociate of Liebowitz Law Firm with knowledge of the facts of the case would appear in-person, and [the Mediator] consented.
The Judge then points out that this all happened about the same time that Liebowitz was dealing with a situation in another courtroom in the same court having to do with lying about the death of his grandfather to explain his failings in another case. Right after the judge in that case had dressed down Liebowitz and told him to shape up was when this new hearing happened, and Judge Furman was well aware of the situation:
The very next day, appearing at the initial pretrial conference in this case, Mr. Liebowitzclaimed that he had sought permission from the Mediator for Mr. Usherson, who lives inGeorgia, to appear telephonically at the October 31, 2019 mediation and that the Mediator hadsaid yes. Initial Conf. Tr. 6-7. Aware of the proceedings before Judge Seibel, the Court thenstopped Mr. Liebowitz and warned him: I want to caution you that you're already in a lot of hotwater in this Court, and I think you know that. In that regard, I would be very, very, very carefulabout the representations you make to me. If you prefer to let Mr. Freeman do the speaking, thatis one thing, although they are still representations on your behalf. Id. at 7. The Court thenasked when Mr. Liebowitz had advised the Mediator that Mr. Usherson was not going to appearin person at the mediation, and the following colloquy occurred:
Mr. Liebowitz: I don't know the exact date, but it was before themediation, and he said yes.
The Court: [By] what means did you do that?
Mr. Liebowitz: It was telephone.
The Court: And you personally advised him?
Mr. Liebowitz: I personally.
The Court: And he said that was okay?
Mr. Liebowitz: He said that was okay.
It's at this moment that things go from bad to worse. The lawyer for the other side points out that Liebowitz filed the lawsuit... over a photograph that did not appear to be registered before the lawsuit was filed -- something the Supreme Court said you cannot do.
Mr.Newberg advised that, the day before the initial conference, he had discovered that after this case was filed, Mr. Usherson filed a copyright registration, which . . . seems to be on thesephotographs, so now it is unclear whether the registration in the complaint actually does coverthe photograph or if it is the new copyright registration. Initial Conf. Tr. 17. Recognizing thatthe case would have to be dismissed if the Photograph had not been registered before theComplaint was filed, Mr. Newberg requested discovery purely on those aspects early. Id. Mr.Liebowitz responded: I don't know what defense counsel means about other registrations orother photographs. I will have to see what my office did, but this is the correct registration. Id.at 17-18. Mr. Liebowitz argued against limited discovery or early summary judgment on theregistration issue, stating that the appropriate thing to do at this stage is to just set discovery, setthe dates, and let the parties engage and hopefully during that process the parties couldeventually get to a settlement number.
You'd think, at this point, that any reasonable person would recognize that he was in trouble. But this is Richard Liebowitz we're talking about. And so, he did what he does... and made things worse:
Following the initial pretrial conference, the Court ordered Mr. Liebowitz to file a formalopposition to the motion for sanctions and directed both sides to address whether the courtshould hold an evidentiary hearing and, if so, what witnesses should be called and how it shouldbe conducted. ... Mr. Liebowitz filed a formal opposition, but disregardingthe Court's Order he failed to address the evidentiary hearing.... Instead, hedoubled down again (quadrupled down, perhaps) on his claim that Mr. Usherson had obtainedpermission from the assigned mediator . . . to appear at the scheduled mediation by telephoneprovided that counsel was present in person and that the Mediator had consented to Mr.Liebowitz's associate appearing instead of Mr. Liebowitz.... In support of hisopposition, Mr. Liebowitz submitted a declaration, in which he stated under penalty of perjury that I sought and received approval from . . . the assigned mediator for Mr. Usherson to attendthe mediation via telephone and for my associate James Freeman to appear who had fullknowledge of the case. I obtained [the Mediator's] consent via telephone.
That paragraph above is foreshadowing. Can you guess where this is heading? Of course you can...
Mr. Newberg took issue with Mr. Liebowitz's claims that he had secured advanceapproval from the Mediator for Mr. Usherson not to appear in person at the mediation and Mr.Freeman to attend on Mr. Liebowitz's behalf, citing emails showing that, even as late asOctober 30 the night before the mediation the Mediator and Mr. Newberg were underthe impression that Mr. Liebowitz (as lead and only admitted counsel) and Mr. Usherson wouldbe at the mediation in person.... Mr. Newberg noted that, because he wasconcerned at what appeared to be false statements being made to the Court by Mr. Liebowitz,he called the Mediator on November 19, 2019.... According to Mr. Newberg, the Mediator said that there had been other mediations where he allowed Mr. Liebowitz's client toappear by phone, but he stated clearly and pointedly . . . that this was not one of them. (emphasis in original). The Mediator allegedly also said that, on the night of October 30, Mr.Liebowitz had called and informed him (without asking for approval) that Mr. Liebowitz wasout of town and that Mr. Liebowitz's associate would be at the mediation instead.... Inthat call, no mention was made of Mr. Usherson at all. ... The Mediator only found outthat Mr. Usherson would not be at the mediation at the mediation itself.
The Judge found this interesting, and asked the Mediator to weigh in directly. You'll never guess what the Mediator said. Oh, what am I talking about? Of course you know what the mediator said. It's why you're still reading this:
The next day, theMediator submitted a declaration, which stated that, on October 30, 2019, he had talked to Mr.Liebowitz and was informed that the mediation was on. He did not inform me that he would notpersonally appear but through an associate. But I have mediated a few prior mediationsinvolving Mr. Liebowitz where on at least one occasion that office appeared by an associatewithout incident.... The Mediator further stated: At no time was I informedthat the plaintiff would not personally appear but would be available by telephone. I should saythat in a few prior mediations his client appeared by telephone without incident. On this occasion no discussion was had by me as to client appearance.
So... Liebowitz lied to the court multiple times, after being warned to be careful not to lie to the court. Guess how he responded to being called out on this lie? Did he admit to error? Or did he triple down? Oh, you know. You know.
On December 16, 2019, Mr. Liebowitz filed a letter stating that he contests certainstatements proffered by the Mediator in his declaration. ... Once again, Mr.Liebowitz asserted that he had notified the Mediator that Mr. Usherson would be appearingtelephonically and that such request was granted. ... But the December 16th letter alsoproffered a new line of defense: that the Mediator in this case had a custom and practice ofgranting Mr. Liebowitz's clients permission to appear telephonically at mediations.... Mr. Liebowitz cited five prior cases in which the Mediator had allegedly granted his clientspermission to appear telephonically; in one of these five cases, he maintained, the Mediator alsogranted Mr. Liebowitz permission to send an associate on his behalf. ... Mr. Liebowitzinsisted: This . . . corroborates Mr. Liebowitz's testimony and establishes a 'pattern or practice'of conduct showing that Mr. Liebowitz harbored a good faith belief that the requisite permissionswere granted by the Mediator in this case.
At this point, the Judge ordered the lawyers and the mediator to show up in his courtroom to discuss this in person. Finally realizing he might possibly be in trouble, Richard Liebowitz tried to do what so many copyright trolls try and do when in this position (though, frankly, Richard seems to realize that the time has come much later than most copyright trolls): he tried to cut and run:
On December 17, 2019, the Court issued an Order scheduling thehearing and directing Mr. Liebowitz, Mr. Newberg, and the Mediator to appear for testimony... Just two days later, Mr. Liebowitz filed a stipulation of voluntary dismissal signed by bothparties, providing that the case should be dismissed with prejudice with each side to bear itsown costs and attorney's fees.
And, of course, even in that joint stipulation, Liebowitz was misleading, leading the other side's lawyer to feel the need to explain things to the court.
In a letter filed the same day, Mr. Newberg noted that Bandshell had stipulated to Mr. Usherson's withdr[awal of] the . . . case with prejudice,but pointedly noted that he and his client would not have so stipulated had his firm not beenrepresenting [Bandshell] pro bono.
Given that, the judge did dismiss the underlying case, but not the original motion for sanctions from the defendant. That led to a hearing, with both sides and the mediator that went about as well as you would expect for a situation in which Liebowitz has to justify his actions. After first claiming that "it could well be that the mediator simply forgot that he" gave Liebowitz and his client permission to not show up to the mediation, things went even further off the rails:
On the subject of his communications with the Mediator in this case, Mr. Liebowitzclaimed that, at about 7:30 to 8:00 p.m. on October 30, 2019, the night before the mediation, hehad called the Mediator from Los Angeles, California, and asked for permission for Mr.Usherson to appear by telephone from Georgia and for Mr. Freeman to appear as counsel. ... Mr. Liebowitz testified that the Mediator had approved both requests. ... Mr. Liebowitz acknowledged that he had made no record of the call and, indeed,that there was [n]othing in writing at all reflecting that the call had occurred. ... Whenasked how he suddenly remembered that the telephone call had occurred on October 30th, whenhe could not remember the relevant date when asked at the November 14, 2019 initial pretrialconference (only two weeks after the events in question), Mr. Liebowitz responded that certainemails had jogged his memory namely, emails that had been attached to Mr. Newberg's initialdeclaration in support of the sanctions motion.... But Mr. Newberg's initialdeclaration had been filed before the November 14th conference, and Mr. Liebowitz had actuallyresponded to it in writing. (When pressed on that point, Mr. Liebowitz testified: I often forgetthings. )
I often forget things? That's going to convince the judge... And, of course, his forgetfulness seemed to work to his continuing disadvantage here as well.
More troubling, Mr. Liebowitz's account is not supported by the email trail. At 6:34 p.m.on October 30, 2019, Mr. Newberg emailed a proposed settlement agreement to the Mediator,and stated that unless Mr. Usherson sign[ed] the agreement that night, we will see Mr.Liebowitz and Mr. Usherson tomorrow . . . at the mediation.... At 8:15 p.m.,the Mediator replied: Talked to Richard and he has been tied up. He will review tonight and getback to us in the morning. Hopefully we can settle this before need [sic] to go to in personmediation.... Mr. Newberg responded: I'm headed to the train station wellbefore 6:00 am. And to be candid, I would have assumed Mr[.] Usherson either flew to NYtonight or is likewise on a very early plane. ... The Mediator said simply, I understand. (email sent at 10:03 p.m.). In addition, at 4:12 a.m. on October 31, 2019, Mr. Liebowitz sent Mr.Newberg an email stating: Attached please find revisions to the agreement which can bediscussed at the mediation.... Mr. Liebowitz did notmention that he and Mr. Usherson did not plan to attend, let alone that they had the Mediator'spermission not to attend.... At no point, in fact, did Mr. Liebowitz notify opposingcounsel that he and Mr. Usherson would not be attending.
Ooops. Could it get worse? Oh, you know it could.
During Mr. Liebowitz's testimony at the hearing, the Court asked him what he wouldhave done had the Mediator denied his alleged requests on the night of October 30th.... Mr. Liebowitz claimed that he and Mr. Usherson would have attended the mediation thenext day in person... But on the night of October 30th, Mr. Liebowitz was in LosAngeles hosting a networking event for photographers, and Mr. Usherson was at home inGeorgia.... Mr. Liebowitz never booked any flights or checked when the last flight toNew York from either location was.... Nevertheless, he claimed that he had been prepared to book flights and fly overnight.... hen pressed about whether he hadcommunicated this alleged plan to Mr. Usherson, Mr. Liebowitz equivocated: Well, if he ifhe if he didn't have to appear in person, then then I would have just called him that dayand know that he's always around.... It is clear, therefore, that Mr. Liebowitz didnot advise Mr. Usherson that he might need to jump on a plane at a moment's notice and appearin New York. It follows that Mr. Liebowitz had no way of knowing whether Mr. Usherson couldhave complied if asked to do so.
Oh yeah, also, Liebowitz contradicted his own associate, who had shown up to "represent" him in this matter:
Notably, Mr. Liebowitz's testimony was in tension, if not direct conflict, with therepresentations of his own associate, Mr. Freeman. For example, Mr. Liebowitz claimed that hehad told Mr. Freeman on October 30th that the Mediator had approved Mr. Liebowitz's requests. ... But at the initial pretrial conference, Mr. Freeman advised the Court thathe had not known what clearances were given. ... When confronted with thisdiscrepancy, Mr. Liebowitz responded: [P]eople forget things. ... Mr. Liebowitzalso claimed that he had spoken with Mr. Freeman about the case on numerous occasionsbefore October 30th. ... But, as noted, Mr. Freeman repeatedly confirmed that he did noteven know about the existence of the case before October 30th a representation that he hadreiterated in his sworn declaration, ... which Mr. Liebowitz himself had filed andeven cited in Mr. Usherson's opposition brief... (Despite that, Mr.Liebowitz claimed that he had not read Mr. Freeman's declaration before filing the brief. ... )
And worse:
Finally, to the extent relevant here, Mr. Liebowitz also took the position that he wasnever required to attend the mediation, as it was Mr. Freeman who was the lawyer who will be primarily responsible for handling the trial of this matter.... But Mr. Liebowitzacknowledged that Mr. Freeman had not even entered an appearance in this case and that he hadnever advised the Mediator or Mr. Newberg that Mr. Freeman was principal trial counsel. ... Moreover, he was forced to admit that the Court's Order scheduling theinitial pretrial conference had required principal trial counsel to attend all pretrialconferences and that he not Mr. Freeman had appeared on Mr. Usherson's behalf at theinitial pretrial conference. ... Similarly, Mr. Liebowitz claimed that Mr.Usherson was also never required to attend the mediation because, in Mr. Liebowitz's view, theCourt's Order requiring in-person mediation referred only to the attorneys, [n]ot parties. ... When asked why, then, he had bothered to confirm that he and Mr. Usherson could bein New York on October 31st, and later asked the Mediator to excuse his and Mr. Usherson'sattendance, Mr. Liebowitz responded that he wanted to double double you know, justcover myself.
"He wanted to double -- double -- you know, just cover myself."Remember, all of this is after he'd already been sanctioned multiple times for lying to the court. This is just two months after a different judge in the same courthouse had ordered him to get some professional training and warned him to stop this kind of thing. But he can't seem to help himself.After that mess, there was still the matter of the bogus filing of the lawsuit over a photograph that didn't have a registered copyright. Of course, when the case was filed, Liebowitz claimed that it was registered, but (and, in case this is not clear, this is really, really bad) he was misrepresenting that to the court and used a registration on another photo -- and that they hadn't actually registered this one. Again, that's really bad. On top of all the other really bad stuff above.
Mr. Newberg revealed that he had just received the Copyright Office's deposit files for the 046Registration and confirmed that the Photograph was not in fact registered under that number. In response, Mr. Freeman admitted that it is the regular practice of theLiebowitz Law Firm to file copyright infringement cases without verifying that the works in question are properly registered, because of the additional expense.
Holy shit.
Mr. Freemanstated that [t]he client will say to us, 'This photograph is on deposit with this registration.' Andwe take them for their word. ... Mr. Freeman stated that, in this case, Mr. Ushersonhad represented to us that he had registered the Photograph.... Mr. Freeman furtherstated that, prior to filing the Complaint, the firm had checked on the Copyright Office's websitethat Mr. Usherson was the copyright claimant in that particular case.
I mean, beyond all the other bad lawyering, what's described here is really bad lawyering. So, that left the judge to order both parties to address this issue, and guess how that worked out?
In his letter, Mr. Liebowitz admitted that Paragraph 9 of the Complaint was inaccuratebecause the Photograph was not, in fact, registered as part of the 046 Registration.... Mr. Liebowitz disclosed that his firm had registered the Photograph under registrationnumber VAu 1-373-272 (the 272 Registration), but not until August 22, 2019 more than amonth after the Complaint in this case was filed.... Mr. Liebowitz attributed the falsestatement in the Complaint to clerical error, noted that administrative mistakes or clericalerrors do happen in the copyright registration process, and insisted that, but for dismissal of thecase, Mr. Usherson could have cured the problem by amending the Complaint.
Sure, sure, clerical error. Happens all the time. But...
InBandshell's response, Mr. Newberg reminded the Court that, at the initial pretrial conference,Mr. Liebowitz had denied any knowledge of other registrations or other photographs.
Oh, right.
Mr. Newberg argued that Mr. Liebowitz's new explanation thus defie[d] belief.
It does, but this is Richard Liebowitz we're talking about, so the bar is pretty low.
Mr. Newberg also pointed out that Mr. Liebowitz had incorrectly asserted that thefailure to obtain a registration prior to filing suit provides grounds to amend the complaint,... , citing this Court's decision in Malibu Media holding that premature filing necessitates dismissal.
So, the judge wasn't done yet. He then asked Liebowitz, the photographer Usherson, and the associate/Liebowitz's lawyer, to each give their sides of the "administrative mistake" story. And guess how that worked out?
In his declaration, Mr. Freeman admittedthat the Photograph was registered by the Liebowitz Law Firm after the Complaint was filed butclaimed that he had no personal knowledge of this administrative mistake until after the January8, 2020 hearing. ... Mr. Freeman explained his representations at the close ofthe January 8th hearing by saying (not altogether convincingly) that he had been speaking basedon his general knowledge of [the Liebowitz Law Firm's] custom and practices. ... Mr. Usherson averred that he had identifi[ed] the 046 Registrationwhen he authorized Mr. Liebowitz to file a copyright infringement action.... But Mr. Usherson also stated that, before the Complaint was filed, he had provided to theLiebowitz Law Firm a CD-ROM containing all of the photographs in the 046 Registration... The Photograph was not among them. Then, [s]ometime after the lawsuit was filed, Mr.Usherson provided the firm with a CD-ROM containing thirty additional photographs, includingthe Photograph, which the firm registered in the 272 Registration.
And last, and very most least, was Liebowitz's turn to try to dig himself out of the ditch he'd just kept digging. And, finally, he seemed to tell the truth and talk about how totally incompetent he was as a lawyer:
Finally, Mr. Liebowitz admitted that he had conducted no investigation into whether thePhotograph was properly registered before filing the Complaint, even though he and his firmhad the ability as of June 2019 to double-check whether the Photograph was part of [the]images that were included on a CD-Rom that Mr. Usherson had previously sent. ... Instead, Mr. Liebowitz relied solely on an entry in the firm's internal case-tracking system,which noted that the Photograph was associated with the 046 Registration.... This entry was made by a member of [the firm's] administrative staff, Zachary Cuff.... Mr.Liebowitz also stated that he had no role in filing the 272 Registration, which was performed byhis firm's internal staff at the request of Mr. Cuff. ... Mr. Liebowitz claimed that he didnot realize the Photograph was not properly registered which he described as a technicalpleading deficiency until subsequent to the January 8, 2020 hearing.
A technical deficiency? Yikes.At some point this has to end, and it does with the Judge dropping the hammer:
Applying the foregoing standards here, the Court concludes that a range of substantialmonetary and non-monetary sanctions against Mr. Liebowitz and his firm, including referral ofMr. Liebowitz to the Grievance Committee, are amply justified. Sanctions are appropriate for(1) Mr. Liebowitz's repeated violations of the Court's Orders; (2) Mr. Liebowitz's repeated liesto the Court, including under oath, about whether the Mediator granted Mr. Usherson permissionto participate in the mediation by telephone; and (3) the false allegation in the Complaintregarding registration of the Photograph and the failure to reasonably investigate the issue, bothprior to filing suit and when put on notice about the issue during the litigation.
He then goes on to catalog, one by one, all of the things Liebowitz did which no lawyer should ever do. Friends, it goes on for 19 pages. There are three and a half pages detailing his "repeated violations of the court's orders." The court counts six such failures to follow court orders in this case alone. There are then eight and a half pages talking about Liebowitz's lies to the court. In the midst of discussing all of those, the judge notes that when called out on his lies in other cases, like this one, Liebowitz tries to cut and run:
In both cases, he tried without success to make his problems go away by voluntarily dismissing the case before sanctions were imposed. And in both cases, he ultimatelysought to excuse his misconduct by invoking his relative youth and inexperience, his heftycaseload, and poor case management practices.
The Judge ain't buying it:
... while Mr. Liebowitz's failures to obey court orders can arguably beexplained (though not justified) by his relative inexperience, heavy caseload, and inadequate casemanagement practices, the same cannot be said for his dishonesty.
And then we get this realization that Liebowitz seems to have a problem. And that problem is that he regularly lies under oath.
The simple fact is that Mr. Liebowitz has aproblem: He does not feel constrained by the truth and, when cornered, has no compunction about lying, even under oath. It follows that sanctions should be, and are, imposed.
And then seven more pages, just about one particular lie: that the photograph was registered at the Copyright Office before the lawsuit was filed. Here, the judge notes that Liebowitz had gotten in trouble on this very issue before:
Finally, the evidence clearly and convincingly shows that Mr. Liebowitz brought andmaintained this case in bad faith by willfully disregarding the fact that the case was fatallyflawed from its inception. As noted, under Section 411(a) of the Copyright Act, an infringementaction may not be filed until . . . registration of the copyright claim has been made. 17 U.S.C.§ 411(a); see Rudkowski v. MIC Network, Inc., No. 17-CV-3647 (DAB), 2018 WL 1801307, at*3 (S.D.N.Y. Mar. 23, 2018) (warning Mr. Liebowitz that possession of a registration certificateis a condition precedent to filing a copyright claim). Paragraph 9 of the Complaint in this casedid allege that the Photograph was registered as part of the 046 Registration. But in the face ofirrefutable evidence to the contrary, Mr. Liebowitz now concedes as he must that thatallegation was false and that the Photograph was not registered until August 22, 2019, almost amonth and a half after the lawsuit was filed. Mr. Liebowitz has two responses to thisextraordinary revelation. First, he seeks to trivialize it by calling it a technical pleadingdeficiency and suggesting that, but for the voluntary dismissal, he could have cured the problemby amending the Complaint.... Second, throwing his ownclient and a member of his administrative staff under the proverbial bus, he claims that he did notknow about the untimely registration.... Neither response is persuasive
No. Neither response is persuasive at all. The Judge explains why the claim that this could be cured with an amended complaint is wrong, and notes that this wrongness was not just a mistake by Liebowitz but again part of the pattern you may have already noticed:
Notably, there is a strong argument that Mr. Liebowitz's suggestion that he could havecured the defect through amendment is itself made in bad faith. First, it is hard to believe that hewould be unaware of the recent law on that issue. His practice is devoted to copyrightinfringement cases; in little more than four years, he has filed approximately 2,500 such casesand, at the time of the mediation in this case, his firm had more than 400 such cases pending infederal court. ... But assuming for the sake of argument thatMr. Liebowitz does not keep up on developments in copyright law (which would be inexcusable,but is nevertheless all too plausible), he was explicitly put on notice of the fact that an untimelyregistration is not curable at the initial pretrial conference in this case, when Mr. Newberg firstraised the issue and noted that dismissal would be required if the Photograph was registered after the Complaint was filed, citing Fourth Estate and this Court's holding in Malibu Media that apremature filing is a non-curable error. ... Making matters even worse, Mr.Liebowitz persisted in pressing the point even after Mr. Newberg, in his post-hearing letter,explicitly noted that the suggestion was incorrect, citing Malibu Media and other precedent. ... These facts support an inference of badfaith
The court also does not look kindly on Liebowitz trying to blame others for this:
Mr. Liebowitz's efforts to distance himself from responsibility for the untimelyregistration and the false allegation in the Complaint, and his attempt to pin blame on either hisclient or an administrative assistant at his firm, are similarly unavailing. For one thing, theevidence clearly and convincingly shows that Mr. Liebowitz did know about the untimelyregistration, at least as of August 22, 2019, when his firm registered the Photograph under the272 Registration, if not earlier. Indeed, as Mr. Freeman explained at the January 8th hearing, thefirm increasingly files copyright registration applications itself [s]o we know for sure it's ondeposit. And that is what happened here: Sometime after July 10, 2019,when the Complaint in this case was filed, Mr. Usherson sent the firm a CD-ROM containing allof the photographs that he had not yet registered including the Photograph and Mr. Liebowitz's firm proceeded to register them.... The firm thus had knowledgethat the Photograph had not been registered prior to the filing of the Complaint. And it is hard tobelieve that Mr. Liebowitz, as lead counsel for Plaintiff and the founding member ofLiebowitz Law Firm,... was unaware of the fact himself. It is far moreplausible indeed likely that, upon receiving the Photograph from Mr. Usherson, Mr.Liebowitz realized that it had not yet been registered and sought to quietly take care of theproblem, hoping that Bandshell and the Court would be none the wiser and he would escapedismissal.
Indeed, the Judge points out that it's reasonable to infer that Liebowitz tried to get out of the case before all of this came to light:
It is no answer to say, as Mr.Liebowitz does, that he relied on his administrative assistant; Mr. Liebowitz is the lawyer whosigned the Complaint containing the affirmatively false allegation. Making matters worse, Mr.Liebowitz and his firm received a second CD-ROM, which would have revealed that thePhotograph was not among those registered as part of the 046 Registration, and the firm thenregistered the Photograph itself. And to top it off, at the initial pretrial conference in November2019, Mr. Newberg specifically addressed the 272 Registration and raised doubts about whetherthe Photograph had been timely registered putting Mr. Liebowitz on notice of what turns outto have been a fatal defect in the Complaint.... Under these circumstances, itwas Mr. Liebowitz's obligation to investigate whether the Photograph was properly registered.Nevertheless, Mr. Liebowitz and his firm conducted no investigation until after theJanuary 8, 2020 hearing and, even then, did so only because the Court ordered them to file aletter addressing the issue and, when that did not clear things up, declarations.... In fact, Mr. Liebowitz actively stonewalled Mr. Newberg's request for discovery on the issue at the initial pretrial conference, stating: I don't know what defensecounsel means about other registrations or other photographs. I will have to see what my officedid, but this is the correct registration.... It is hard to avoid the conclusionthat Mr. Liebowitz hoped to settle the case before the truth came to light
It goes on. And on. And on. And the Judge points out that all of these mistakes have also shown up in other Liebowitz cases, so it's not like it's the first time he's been told about this stuff.Finally, after 45 pages detailing what a terrible lawyer Liebowitz is, the Judge tries to figure out what sanctions are warranted. And he notes, that this is a special case:
If specific deterrence that is, deterring Mr. Liebowitz from repeating his misconduct were the sole consideration, it is not clear that any sanction (short of, perhaps, disbarment)would suffice. After all, his first lie in this case occurred only one day after he was dresseddown by Judge Seibel for repeatedly lying about his grandfather's death, and despite a warningfrom the Court to be very, very, very careful about what he said... Andthereafter, as in the case before Judge Seibel, he dug his hole even deeper, repeating his lies overand over, including under oath. (In fact, he arguably expanded upon his lies, concocting, afterthe fact, his custom and practice excuse.) Even more troubling, as the discussion above makesclear, Mr. Liebowitz's misconduct in this case is part of a larger pattern that has led judges onthis court and, as his practice has expanded to other districts, judges on other courts tochastise him, impose sanctions on him, and require his clients to post bonds to cover futureadverse awards of attorney's fees and costs resulting from his misbehavior. The list of suchcases is too long to cite here and, thus, is attached as an Appendix to this Opinion and Order. And even that list is likely not exhaustive. For one thing, there may well be orders imposingsanctions or requiring a bond that are not easily searchable on Westlaw or Lexis. For another, asthis case, the case before Judge Seibel, and this Court's prior decision imposing sanctions in Ricemake clear, Mr. Liebowitz frequently drops his cases when the going gets tough and sanctionsare on the horizon. ... Undoubtedly there are cases in which that tacticsucceeded and Mr. Liebowitz was never held to account. Thus, there may be no sanction shortof disbarment that would stop Mr. Liebowitz from further misconduct.
However, the Judge sadly notes, the court cannot disbar a lawyer. It can only send the issue to the Grievance Committee (which the judge absolutely does). So, now we get to the sanctions, which may not sound like much after all that: but he has to pay $103,517.49. This is basically the attorneys' fees and costs from the other side, plus an additional $20,000 (for the filing with the wrong registration). That's a decent amount of money, but not a staggering amount. As the court notes, though, when issuing sanctions they must be "no more severe than reasonably necessary to deter repetition... or comparable conduct by similarly situation persons." And, in theory, such a sanction might deter "similarly situation persons."But, the real problems for Liebowitz are in the non-monetary arena. Beyond the fact that the court is sending this on to the Grievance Committee, which could lead to Liebowitz being disbarred, there are a few more things he needs to do:
Within thirty days of the date of this Opinion and Order, Mr. Liebowitz and hisfirm shall serve a copy of this Opinion and Order, either by email or by overnightcourier, on every one of the firm's current clients and Mr. Liebowitz shall file adeclaration attesting to such service on ECF
And also:
By the same date, Mr. Liebowitz and his firm shall file a copy of this Opinion andOrder on the docket of any currently pending case that was brought by Mr. Liebowitzor his firm and Mr. Liebowitz shall file a declaration attesting to the same on ECF;
And not just current cases, but every case he files in the next year:
In any action that is filed within one year of the date of this Opinion and Order byMr. Liebowitz or his firm, Mr. Liebowitz and his firm shall file a copy of thisOpinion and Order on the docket of the case within two days of filing the complaintor otherwise initiating the case; andIn any action that is filed within one year of the date of this Opinion and Order byMr. Liebowitz or his firm that involves allegations or claims of copyrightinfringement, the complaint shall include as an attached exhibit a copy of the depositfiles maintained by the U.S. Copyright Office reflecting prior registration of therelevant copyrighted work or works at issue.
Oh, and then after all of that, the Judge includes a lovely appendix detailing 40 other cases in which judges sanctioned or otherwise benchslapped Liebowitz. FORTY CASES. Each one includes a quote of the benchslap in question. It's like a "greatest hits" of benchslaps, but they're all for Richard Liebowitz. It includes some amazing ones I hadn't seen before (hey, there are only so many hours in a day), including:
In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 17, at 1-2 (N.D. Cal. June12, 2020) (finding that Mr. Liebowitz has falsely held himself out as a member of thisCourt's bar on multiple occasions, even though he never has been a member; notingthat his unprofessional and blameworthy conduct is consistent with the extensivepublic record of discipline he has amassed in courts across the United States; andconcluding that there are good grounds for doubting that Liebowitz should be permittedto practice in this District even on a pro hac vice basis).
Oof. And this coming right after it:
Geerds v. San Francisco Bay View Inc., No. 19-CV-6465 (JST), ECF No. 29 (N.D. Cal.June 10, 2020) (denying Mr. Liebowitz's motion for admission pro hac vice in a case hefiled in the Northern District on October 8, 2019, one day after he was disbarred in In reRichard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 3 (N.D. Cal. Oct. 7, 2019)).
And:
Alvarado v. Mother Jones, LLC, No. 19-CV-6417 (JST), ECF No. 25, at 2-4 (N.D. Cal.May 14, 2020) (denying Mr. Liebowitz's motion to appear pro hac vice after finding thatMr. Liebowitz continues to regularly file and litigate cases in the Northern District ofCalifornia following his order of disbarment in In re Richard P. Liebowitz).
And:
Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *14 (D. Colo. May 11, 2020) (concluding that Mr. Liebowitz's continued practice oflaw represents a clear and present danger to the fair and efficient administration ofjustice, and steps should be taken promptly by appropriate disciplinary authorities tosuspend his ability to file new cases unless and until he has demonstrated he hasappropriate systems in place to assure regular compliance with court rules and rules ofprofessional conduct, and requiring that Mr. Liebowitz associate with a Colorado-basedattorney with at least five years of experience, who must co-sign any filings in the case,and that Mr. Liebowitz file a copy of the sanctions order in all other cases he has filed inthe District of Colorado or files in the following sixth months)
And on and on and on.I've asked in the past why anyone who can do a basic Google search would hire Richard Liebowitz after being repeatedly sanctioned (again and again and again) over these issues. There are other copyright lawyers out there. There are even other trollish copyright lawyers who will take on most of these cases. But none of them seem to run into these issues so consistently and to so regularly demonstrate their own incompetence at practicing law as Richard Liebowitz.

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posted at: 12:00am on 01-Jul-2020
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