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August 2020
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Get Your First & Fourth Emojiment Face Masks And Other Gear On Threadless

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Get your First & Fourth Emojiment gear in the Techdirt store on Threadless »Earlier this week, we added two of our popular old designs to our line of face masks in the Techdirt store on Threadless: the First and Fourth Amendments, translated into the language of emojis. Both are available as standard and premium masks and in youth sizes, plus all kinds of other gear: t-shirts, hoodies, phone cases, notebooks, buttons, and much more.

And if you haven't in a while, check out the Techdirt store on Threadles to see the other designs we have available, including classic Techdirt logo gear and our most popular design, Nerd Harder. The profits from all our gear help us continue our reporting, and your support is greatly appreciated!

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posted at: 12:00am on 30-Aug-2020
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More Video Game Art Is Being Sanitized, Likely To Appease China

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Mere days ago, we were talking about Activision's decision to do a delete and replace for the trailer for the latest Call of Duty game worldwide due to pressure from the Chinese government. That pressure came about over 1 second's worth of footage in the trailer that showed an image from pro-democracy protests in 1989. While only a trailer for an un-released game, the point I attempted to make is that this was a terrible precedent to set. It's one thing to sanitize games, a form of art, for distribution within China. We could spend hours arguing over just how willing companies should be in bowing to the thin-skin of the Chinese government when it comes to art in favor of making huge sums of money, but that's at least understandable. It makes far less sense to apply those changes to the larger world, where China's pearl-clutching sensibilities aren't a thing.And now we're seeing this continue to occur. Kotaku has a quick write up for several changes made to a handful of re-released retro games and this appears to be more of the same. We'll start with the re-release of Baseball Stars 2, a Neo Geo classic.

Baseball Stars 2 was released on the Neo Geo in 1992 (one year after the greatest baseball game ever made, with which it has a lot in common), and for the last 28 years has been just fine with teams like the “Tokyo Ninjas” and “Spanish Galleons”. The “Taipei Hawks”, however, have just been removed from a console version of the game following an update earlier this week. As noted on this Reddit post and this Twitter thread by users, an update for the PS4, Xbox One and Switch version released in 2019 had removed the team names (and country flags) for both the “Taipei Hawks” and the “Taiwan Dragons”, while leaving all the other names like the “Seoul Dragons” in place.This 2019 console version of the game was ported by Japanese studio Hamster Corporation, but the rights to the game are held by publisher SNK, which in 2015 was purchased by Chinese company 37Games.
Again, while these are small changes, we now have a trend. That trend consists of changes made to appease the Chinese government in video games being applied to worldwide releases. And this isn't merely some workload thing, where game companies don't want to make changes to regional distributions of games. The Steam version of the game, for instance, is even more different, with teams not having real-world locales, instead only the mascot nicknames.Why is an American, a Russian, or a South American gamer having to feel the effects of Chinese censorship?This isn't the only retro game in which this occurred, in fact. Art of Fighting 2 was recently re-released on the PC. In that game, the Japanese "rising sun" flag, which still serves as the Japanese Navy's flag, was removed from the game and replaced with a banner that just says "karate".
At the same time, it appears that another SNK-published title, Art of Fighting 2 on the PC, received a similar update this week, where a depiction of the controversial “Rising Sun” Japanese flag was replaced with a white flag that says “KARATE”:
This one is harder to pin on China. After all, most complaints about this flag, which occasionally shows up in real-world sporting events, come from South Korea. During plans for the 2020 Olympics, in fact, South Korea requested the flag be banned from the games entirely due to the sordid history of the Japanese Navy during Japanese occupation of South Korea. But South Korea wasn't the only country occupied and terrorized under that flag.
Based on a historical experience of Japanese invasion, China's reaction to the rising sun flag at the Olympics could be similar to South Korea's. After the Japanese military took the Chinese city of Nanjing in 1937, Japanese troops embarked on a months-long campaign of murder, rape and looting in what became one of the worst massacres of the war.According to Chinese estimates, around 300,000 people were killed, many of them women and children, and around 20,000 women raped. Yet there's little protest from China about the flag.
So which country was this change made to appease: China or South Korea? We don't know, but neither answer is good. If it's China, this is now at least the third instance of the trend of appeasing that country's government in a way that effects art worldwide. If South Korea, then it indicates that the trend instead might be for other countries that want to engage in the same kind of censorship jumping on the bandwagon.We're still at the "video game art and trailers" level of all of this, so it's understandable for some not to care all the much. But how much further does this have to go before people will care?

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posted at: 12:00am on 29-Aug-2020
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Content Moderation Case Study: Facebook Responds To A Live-streamed Mass Shooting (March 2019)

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Summary: On March 15, 2019, the unimaginable happened. A Facebook user -- utilizing the platform's live-streaming option -- filmed himself shooting mosque attendees in Christchurch, New Zealand.By the end of the shooting, the shooter had killed 51 people and injured 49. Only the first shooting was live-streamed, but Facebook was unable to end the stream before it had been viewed by a few hundred users and shared by a few thousand more.The stream was removed by Facebook almost an hour after it appeared, thanks to user reports. The moderation team began working immediately to find and delete re-uploads by other users. Violent content is generally a clear violation of Facebook's terms of service, but context does matter. Not every video of violent content merits removal, but Facebook felt this one did.The delay in response was partly due to limitations in Facebook's automated moderation efforts. As Facebook admitted roughly a month after the shooting, the shooter's use of a head-mounted camera made it much more difficult for its AI to make a judgment call on the content of the footage.Facebook's efforts to keep this footage off the platform continue to this day. The footage has migrated to other platforms and file-sharing sites -- an inevitability in the digital age. Even with moderators knowing exactly what they're looking for, platform users are still finding ways to post the shooter's video to Facebook. Some of this is due to the sheer number of uploads moderators are dealing with. The Verge reported the video was re-uploaded 1.5 million times in the 48 hours following the shooting, with 1.2 million of those automatically blocked by moderation AI.

Decisions to be made by Facebook:
  • Should the moderation of live-streamed content involve more humans if algorithms aren't up to the task?
  • When live-streamed content is reported by users, are automated steps in place to reduce visibility or sharing until a determination can be made on deletion?
  • Will making AI moderation of livestreams more aggressive result in over-blocking and unhappy users?
  • Do the risks of allowing content that can't be moderated prior to posting outweigh the benefits Facebook gains from giving users this option?
  • Is it realistic to "draft" Facebook users into the moderation effort by giving certain users additional moderation powers to deploy against marginal content?
Questions and policy implications to consider:
  • Given the number of local laws Facebook attempts to abide by, is allowing questionable content to stay "live" still an option?
  • Does newsworthiness outweigh local legal demands (laws, takedown requests) when making judgment calls on deletion?
  • Does the identity of the perpetrator of violent acts change the moderation calculus (for instance, a police officer shooting a citizen, rather than a member of the public shooting other people)?
  • Can Facebook realistically speed up moderation efforts without sacrificing the ability to make nuanced calls on content?
Resolution: Facebook reacted quickly to user reports and terminated the livestream and the user's account. It then began the never-ending work of taking down uploads of the recording by other users. It also changed its rules governing livestreams in hopes of deterring future incidents. The new guidelines provide for temporary and permanent bans of users who livestream content that violates Facebook's terms of service, as well as prevent these accounts from buying ads. The company also continues to invest in improving its automated moderation efforts in hopes of preventing streams like this from appearing on users' timelines.

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posted at: 12:00am on 29-Aug-2020
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Aldi, Brewdog Brand War Ends In The Best Possible Way: Collaboration

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The world may well feel like a terrible place to you right now. A pandemic is sweeping much of the world, with leaders from many countries playing the ostrich, or else treating the victims as though they were mere idiots. Racial tensions and brutal police practices are on full display, with the most surprising aspects being that they continue even as the world is shining a spotlight on the offenders. World leadership appears to be in full retreat, leaving space for truly nefarious actors to shoulder their way into ever more troubling activities.Just last week, the White Sox beat the Cubs in two out of three. These are dark, dark times indeed.But, hark, all ye who may despair, for I bring good tidings. Mere days ago, we talked about a brand war that appeared to be brewing (heh) between grocerer Aldi and Brewdog, a self-styled "punk brewery." It started when Brewdog released a "Punk IPA", fully in line with its branding motif. Aldi then released a beer called "Anti-Establishment IPA", in a similar looking blue can. This led to Brewdog suggesting on Twitter that maybe it should release a "Yaldi" beer. Aldi said "ALD IPA" would be a better name... and Brewdog agreed, rebranding the beer under that name.Notably absent from the whole episode were cease and desist notices from either side, lawyers filing trademark lawsuits, or any legal machinations of any kind. Instead, there was much good-natured ribbing and a fair amount of congenial creativity at play. In the end, Aldi's social media accounts had a laugh at Brewdog taking its suggestion, and even mentioned it might have to save some aisle space for the newly branded beer.Which, in conclusion, appears to be happening.

Were you like me, where some part of your professional life is spent writing stories about ever more stupid trademark disputes and far too may of them ending in even more stupid litigation, you would realize just how satisfying this is. Compared with pointless protectionism, this is such good business on so many levels.Lawyer fees are completely avoided. Trademarks for all sides are still fine. Just fine. And, most importantly, an entirely new business arrangement, one which will make some good money judging by the response to this news, is entered into by both sides. Everyone is fine, everyone is happy, everyone makes money.And everyone has at least a little bit of fun with all of this on top of it. Bravo all the way around.

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posted at: 12:00am on 28-Aug-2020
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It's Time To Start Dismantling One Of The Nation's Oldest Racist Institutions: Law Enforcement

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For as long as cops have been poorly-behaved, people have talked about defunding the police. This talk has gotten louder in recent years and almost deafening in recent weeks as protests over police brutality erupted around the nation in the wake of the George Floyd killing.But what does it mean to defund the police? In most cases, it doesn't mean getting rid of police departments. It means taking some of the millions spent on providing subpar law enforcement and spreading it around to social services and healthcare professionals to steer people trained to react with violence away from people who would be better served with social service safety nets or interventions by people trained to handle mental health crises.Those opposed to defunding police departments (that's most police officials and officers) say it can't be done without ushering in a criminal apocalypse. Police departments demand an inordinate amount of most cities' budgets but law enforcement officials refuse to agree money should be steered away from them even as cities prepare to redirect some calls cops normally handle to other city services.Cops believe they're the "thin blue line" between order and chaos. They believe they're the only thing standing between good people and criminals. But that's just something they say to make themselves feel better about the babysitting and clerical work that consumes most of their working hours. Josie Duffy Rice's excellent article about the long racist history of American law enforcement brings the receipts. What's standing between us and supposed chaos is barely anything at all.

New Orleans has the fourth highest murder rate in the nation but clears only 35 percent of homicide cases. In 2018, the city’s police cleared only 2 percent of all rapes. The country at large isn’t much better. Last year, the Washington Post launched an investigation into murder clearance rates in 50 cities over the course of 10 years. The results were bracing. “Despite a nationwide drop in violence to historic lows,” the Post reported, “34 of the 50 cities have a lower homicide arrest rate than a decade ago.” In St. Louis, during the period the Post studied, it calculated that 54 percent of all homicides resulted in no arrest. In Baltimore, during the period it studied, the Post calculated that only 35 percent of all homicides resulted in an arrest. In Chicago the rate was 26 percent. The “line” isn’t just thin and blue—it’s porous and arbitrary.
What was a handy way to keep slaves (and then former slaves) in line evolved into the law enforcement community we have today. We may no longer send out police officers to round up slaves but we do allow a bunch of racist garbage data to decide where they should focus their efforts. Predictive policing is impossible to differentiate from the low-tech policing of yesteryear. In both cases, enforcement efforts focus on poor residents and minorities.And, like employees everywhere in every business, far too many cops look for the path of least resistance. Meaningful busts that actually reduce criminal activity are the exception. Low-level BS busts are better. They kill time, look busy, and turn citizens into junk content for the justice system. Clickbait churn but for human beings.It's the sort of thing that led to Charleston resident Henry Earl becoming a late night talk show punchline and the subject of nationwide ridicule. Earl was arrested more than 1,500 times -- almost always for public intoxication. Every two or three days, cops would pick up Earl and toss him in jail for three to five days. This happened over and over again for fifty years. And for what? What was the societal net gain of arresting the same man 1,500 times for a low-level violation? Well, it kept the cops paid and they got to look like they were doing something to earn their paychecks.This is how the "thin blue line" actually operates. And it bears no resemblance to the lofty statements they make in defense of their own profession. Most police work is busywork. But in this nation, the busywork tends to negatively affect certain people the most. This is the fact cops and law enforcement officials can't admit to themselves:
It would be at least honest if we said that enduring arbitrary harassing, beating, tasing, and strangulation by the state was the price of being “associated with reduction in violent crime relative to control areas.” That we don’t say this, and that we only imply it for certain classes of people, exposes the assumptions built into American policing. It’s those assumptions that, on the one hand, allow Henry Earl to be arrested more than a thousand times, and on the other offer a sporting chance for anyone who’d like to try their hand at murder or rape.
Given the history and the current state of policing, it makes sense to start stripping law enforcement down to its basic components and rebuild it to serve the public, rather than its own interests.

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posted at: 12:00am on 28-Aug-2020
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Content Moderation Case Study: US Army Bans Users For Asking About War Crimes On Twitch & Discord (July 2020)

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Summary: Content moderation questions are not just about the rules that internet platforms create for themselves to enforce: they sometimes involve users themselves enforcing some form of the site's rules, or their own rules, within spaces created on those platforms. One interesting case study involves the US Army's esports team and how it has dealt with hecklers.

The US Army has a variety of different channels for marketing itself to potential recruits, and lately it's been using its own professional esports team as something of a recruiting tool. Like many esports teams, the US Army team set up a Discord server. After some people felt that the Army was trying to be too cute on Twitter -- by tweeting the internet slang UwU -- a bunch of users set out to see how quickly they could be banned from the Army's Discord server. In fact, many users started bragging about how quickly they were being banned -- often by posting links or asking questions related to war crimes, and accusations of the US Army's involvement in certain war crimes.
This carried over to the US Army's esports streaming channel on Twitch, where it appears that the Army set up certain banned words and phrases, including war crimes, leading at least one user -- esports personality Rod Slasher Breslau -- to try to get around that filter by typing w4r cr1me instead. This made it through and a few seconds later Breslau was banned from the chat by the Army's esports player Green Beret Joshua Strotnium David, with David saying out loud during the stream have a nice time getting banned, my dude. Right before saying this David was mocking internet keyboard monsters for this kind of activity.When asked about this, the Army told Vice News that it considered the questions to be a form of harassment, and in violation of Twitch's stated rules, even though it was the Army that was able to set the specific moderation rules on the account and choose who to ban:
"The U.S. Army eSports Team follows the guidelines and policies set by Twitch, and they did ban a user from their account," a representative of the U.S. Army esports team said in a statement. "Team members are very clear when talking with potential applicants that a game does not reflect a real Army experience. They discuss their career experiences in real terms with factual events. Team members ensure people understand what the Army offers through a realistic lens and not through the lens of a game meant for entertainment. This user's question was an attempt to shift the conversation to imply that Soldiers commit war crimes based on an optional weapon in a game, and we felt that violated Twitch's harassment policy. The U.S. Army offers youth more than 150 different careers, and ultimately the goal of the Army eSports Team is to accurately portray that range of opportunities to interested youth."
Decisions to be made by the US Army:
  • Is it appropriate or reasonable to set up filters to block certain keywords that might be seen as harassing?
    • Is it legal to do so under the 1st Amendment?
  • How aggressive should the Army be in blocking words or phrases and banning accounts?
  • How does the Army determine who is harassing the esports team vs. who is asking legitimate questions?
    • Is it the Army's decision as to who is violating Twitch's rules?
    • If the Army is banning accounts, should it take direct responsibility for that, or should it point to Twitch's rules instead?
  • Will banning accounts or blocking phrases lead to even greater unwanted attention?
  • Are there alternative ways to deal with those who wish to highlight what they perceive to be war crimes by the US Army?
Decisions to be made by Twitch:
  • Should government accounts be allowed to enforce Twitch's rules any way they see fit?
  • Given litigation concerning US politician blocks on social media accounts violating the 1st Amendment, should we even allow US government accounts to have tools for blocking and banning?
Questions and policy implications to consider:
  • Unlike private companies, the US government is bound by the limitations of the 1st Amendment in moderating content. How does its use of social media deal with users who appear to be harassing government employees?
  • In situations like this one, bans and blocks will often get more attention, leading to even more people trying on purpose to get blocked. Are there policies in place to deal with this?  Is this kind of behavior something worth banning? Are there alternative approaches?
  • How much of the moderation for US government accounts should be managed by the companies, rather than the users?
  • If the companies are moderating on behalf of a US government account, do they also need to keep 1st Amendment limitations in mind?
Resolution: So far the U.S. Army has stood by the claim that it believed people asking about war crimes was harassment and thus against Twitch's rules. However, the ACLU has already stepped forward to say publicly that the comments were not harassment and the bans are in fact unconstitutional. It is possible that the ACLU or other 1st Amendment groups may bring litigation to this effect.Indeed, after this case study was originally published, the Knight 1st Amendment Center, which brought the legal challenge that had Trump's Twitter blocking being declared a violation of the 1st Amendment, warned the Army about this, leading the Army to temporarily stop using Twitch.However, the Army has recently returned to Twitch after first unbanning the users it had banned. Separately, Twitch told the Army to stop sharing fake prize giveaways after that practice was called out by The Nation.The Army's return to Twitch has not been without issues. Upon return, the chat for the Army's Twitch channel was flooded with references to war crimes, the issue over which it was initially banning users.




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posted at: 12:00am on 27-Aug-2020
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On Appeal, 'Star Trek Discovery' Still Doesn't Infringe On Video Game's Copyright

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As one of the most beloved science fiction series in history, it's no surprise that the Star Trek franchise has seen its share of intellectual property flare ups. With Viacom manning the IP enforcement guns, it only makes sense that the series has been the subject of the company's failed attempt to pretend Fair Use doesn't exist, the company's failed attempts at copyright enforcement taking down an authorized Star Trek panel, and the company's failed attempt to actually be good humans to the series' adoring fans.But this is not a story of Viacom failing at yet another thing. Instead, Viacom/CBS, along with Netflix, won in court, defeating an appeal by a video game maker that tried to claim that one episode of Star Trek Discovery infringed on the copyrights for a video game.

CBS and Netflix re-affirmed an earlier win in the U.S. Court of Appeals for the Second Circuit over a copyright infringement lawsuit filed against both companies due to a plotline in the first season of Star Trek: Discovery that a video game creator alleged infringed upon the plot of his unreleased game. The video game was about a giant tardigrade who traveled through outer space and a similar creature played a key role in Star Trek Discover Season 1.After the Second Circuit lower court had already dismissed the claims, the Court of Appeals agreed in upholding the lower court ruling that both the video game and the TV show were relying on uncopyrightable scientific facts about tardigrades and their ability to survive in outer space.
While it's a wonder the lawsuit was ever filed in the first place, why in the world Anas Osama Ibrahim Abdin went on to appeal that initial ruling is a complete mystery. The issue at hand was a story arch in the first season of Discovery which dealt with a giant tardigrade. Tardigrades are real life, tiny creatures that typically survive within water droplets. The most interesting aspect of tardigrades is that they have been shown to have been able to survive in the vacuum of outer space. Abdin's video game also dealt with tardigrades that survived the outer reaches of space. On essentially this basis alone, Abdin filed both his original suit and the appeal.This is yet another instance where the idea/expression dichotomy of copyright law comes into play. This dichotomy dictates that copyright can be afforded to specific expression, but not to a general idea. And certainly not to an idea comprised essentially of real life scientific discovery. So, if Discovery told the same story about the same tardigrade creature, merely having a tardigrade in its plot is not somehow infringement just because both works are set in space.
While "[t]he distinction between an idea and its expression is an elusive one," Crichton, 84 F.3d at 587-88, Abdin's space-traveling tardigrade is an unprotectible idea because it is a generalized expression of a scientific fact -namely, the known ability of a tardigrade to survive in space.
While the court's opinion is 40 pages long, that one paragraph does all of its work in affirming the lower court's ruling.

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posted at: 12:00am on 27-Aug-2020
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Activision Deletes And Replaces 'Call Of Duty' Trailer Worldwide Over 1 Second That Hurt China's Feelings

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While China-bashing is all the rage right now (much of it deserved given the country's abhorrent human rights practices), it's sort of amazing what a difference a year makes. While the current focus of ire towards the Chinese government seems focused on the COVID-19 pandemic and a few mobile dance apps, never mind the fully embedded nature of Chinese-manufactured technology in use every day in the West, late 2019 was all about China's translucent skin. Much of that had to do with China's inching towards a slow takeover of Hong Kong and how several corporate interests in the West reacted to it. Does anyone else remember when our discussion about China was dominated by stories dealing with Blizzard banning Hearthstone players for supporting Hong Kong and American professional sports leagues looking like cowards in the face of a huge economic market?Yeah, me neither. But with all that is going on the world and all of the criticism, deserved or otherwise, being lobbed at the Chinese government, it's worth pointing out that the problems of last year are still going on. And, while Google most recently took something of a stand against the aggression on Hong Kong specifically, other companies are still bowing to China's thin-skin in heavy-handed ways. The latest example of this is an admittedly relatively trivial attempt by Activision to kneel at the altar of Chinese historical censorship.

The debut trailer for Call of Duty: Black Ops Cold War has been blocked in China, and subsequently edited everywhere else, after featuring around one second’s worth of footage from the Communist government’s crackdown on pro-democracy protesters in 1989. When the game was first announced last week, a trailer running for 2:02 was released to the world and hosted on the official Call of Duty and Xbox YouTube pages, along with major trailer sites like IGN and Gamespot.On August 21, however, the videos on Call of Duty and Xbox’s YouTube pages were replaced with a much shorter, 1:00 version. This isn’t an additional trailer, it’s a replacement, which we know because...the original 2:02 video we embedded in our own story is no longer working, having been marked as “private”.
So here's the, ahem, tik-tok on this. Activision, which also owns Blizzard, releases a new trailer for a new Call of Duty game. That trailer includes a single second of an image from Chinese protests against the government from three decades ago. The Chinese government, true to form, flips the fuck out and bans the trailer entirely. One imagines there were also threats of banning the game entirely, but that is yet to be confirmed. Activision then, seeing the Chinese government go full carpet bomb over the trailer in its country, decides to try to out-carpet-bomb the carpet bomb by doing a delete/replace of the offending trailer worldwide.While we're talking about a mere video game trailer here, the implications aren't as insignificant as they might seem. Games are a subset of culture and commerce. While much of the discourse over how companies do business in China is overstated to say the least, what Activision did here is something different. Indeed, it could probably be best summarized as: Activision allowed the Chinese government to censor the company's art throughout the world.And, sinophobia aside, that is a very dangerous precedent to set. That it was an action taken on a trailer for a game called Call of Duty: Cold War, in fact, is probably proof that the universe is not without a sense of irony.

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posted at: 12:01am on 26-Aug-2020
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Arizona State University Sues Facebook With Bogus Trademark Claim To Try To Stop COVID Parties Account

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Let's start this one by noting that "COVID parties" are an incredibly dumb and insanely dangerous idea. A few people have suggested them as a way to expose a bunch of people to COVID-19 in the belief that if it's mostly young and healthy people, they can become immune by first suffering through having the disease, with a lower likelihood of dying. Of course, this leaves out the very real possibility of other permanent damage that getting COVID-19 might have and (much worse) the wider impact on other people -- including those who might catch COVID-19 from someone who got it at one of these "parties." It's also not at all clear how widespread the idea of COVID parties are. There have been reports of them, but most of them have been shown to be urban legends and hoaxes.Whether or not COVID parties are actually real or not, some jackass decided to set up an Instagram account called "asu_covid.parties," supposedly to promote such parties among students of Arizona State University as they return to campus. The account (incorrectly and dangerously) claimed that COVID-19 is "a big fat hoax." Of course, if it were a hoax, why would you organize parties to infect people? Logic is not apparently a strong suit. Arizona State University appears to believe that the account was created by someone (or some people) in Russia to "sow confusion and conflict." And that may be true.


You can understand why the University might be upset about this and want to stop it. But, that shouldn't mean that the University gets to abuse the law to do so. Unfortunately, the University decided to sue Facebook (and the anonymous account holder) over the account, claiming... trademark infringement.
Because of the serious public health issues involved here, and pursuant to Fed. R. Civ. P.65, ASU seeks a temporary restraining order and preliminary injunction to prohibit theasu_covid.parties account holder (i) from using the ASU Marks and the maroon and gold schoolcolors trade dress as part of any account username, profile name, profile picture, and/or biodescription, and (ii) from using the ASU Marks and the maroon and gold school colors trade dressin connection with the promotion of any parties, events, or other goods and services. ABOR alsoseeks relief against Facebook, Inc., the owner and operator of the Instagram platform and service,temporarily and preliminarily enjoining it from continuing to provide any services to theasu_covid.parties account holder as a means for infringing upon the ASU Marks and schoolcolors trade dress.
As dumb and dangerous as the account may be that remains no excuse for abusing trademark law for this purpose. The use by the account is clearly not "in commerce" and certainly is not likely to create confusion. No moron in a hurry is going to think this is coming from an official ASU account. Indeed, the filings admit that the account itself (falsely) claims that it won a legal fight with ASU... which proves that it's separate from ASU:
In addition to the instances of infringement of the ASU Marks, the John Doedefendant has engaged in a series of offensive and false statements about ASU. The accounthas posted objectively false statements and information about ASU, including, for example,the following post in which it claims that the account owner has won the battle in courtand that ASU has been ordered to pay its legal fees plus $500,000 in damages.... No such lawsuit or claim for damages exists.... If thatwere not enough, in several posts the owner of this account portrays ASU and its leadershipas Nazis, referring to ASU's President Crow as Fuhrer Crow and comparing ASU's maskrequirement to forcing Jews to wear a yellow Star of David...
While this is being used to argue tarnishment, it's difficult to see how that's a legit claim either. No one is believing these silly claims.Furthermore, making the trademark claim against Facebook, rather than just the account holder seems particularly stupid. Now, it is true that trademark claims are a kind of loophole when it comes to Section 230. Intellectual property is exempted from 230. And while copyright has the DMCA safe harbors, trademark has no official safe harbor of that nature -- so, in theory, if you want to get around Section 230, trademark is one way to do so. But, in reality, it doesn't work that well because courts are still quick to recognize when someone is trying to blame a third party for actions of their users.Here, ASU is claiming that when it complained to Instagram about the account over trademark claims, Instagram responded that it did not appear to violate ASU"s trademarks. That's correct. It does not violate ASU's trademarks. It may violate other Facebook/Instagram policies, but the company made the right call on the specific trademark complaint. But ASU claims this makes Facebook liable:
On August 12, 2020, undersigned counsel on behalf of ASU submitted a trademarkinfringement report using Instagram's reporting tool and identifying the federally registeredASU Marks as being infringed by the asu_covid.parties account.... On August 14, 2020, Instagram responded that the reported party appears to beusing your trademark to refer to or comment on your goods and services and that it wouldnot take any action regarding this account.... Instagram'sresponse mischaracterized the account's use of the ASU Marks because neither the accountprofile nor any of the referenced posts refer to or comment on any of ASU's goods orservices....
Of course, soon after the lawsuit was filed, Instagram did shut down the account. This was the right move because the account violated other policies that Instagram and Facebook have regarding COVID-19 disinformation -- but that's separate from a trademark claim.While Facebook taking down the account may make most of the rest of this moot, we should be concerned about the fact that ASU filed this in the first place (or if it does somehow go forward, what happens). Imagine a ruling in favor of ASU here and how it could be abused to silence many different student groups or organizations criticizing a university (or just to pressure Facebook and other platforms to delete such groups and accounts).I can completely understand why ASU wanted this account shut down. But it shouldn't abuse trademark law to do so.

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posted at: 12:01am on 26-Aug-2020
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Brew Dog, Aldi Get Into Brand Battle With Good Nature, Not Cease And Desists

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It's been quite a brief but impactful journey for Brewdog, a self-styled "punk brewery." The history starts with Brewdog first going after a pub in the UK over trademarks, getting a fair amount of backlash for it, and then having Brewdog ownership not only rescinding all the threats, but inviting the pub to collaborate on a gin together. As part of that whole episode, Brewdog promised to "do better" when it came to IP enforcement and even covered the pub's legal costs. It was a nice story.One which the brewery has by all accounts lived up to. Subsequent stories about them here dealt only with a strange attempt by the Estate of Elvis Presley trying to stop the brewery from trademarking a craft brew entitled Elvis Juice. Brewdog won that one, by the way.And now again Brewdog is making news for itself by poking at a larger entity, but has once again managed to do it in such a human and awesome way that Aldi of all companies appears to be a willing participant in the fun. The whole thing started with Brewdog putting out an on-brand IPA beer entitled "Punk IPA." From there, Brendan Palfreyman, an IP attorney that specifically focuses on the craft brew industry and is a fantastic follow on Twitter, picks up the back and forth when Aldi decided to poke the Brewdog.

Yeah, this is actually happening. Consider the back and forth here for a moment. Brewdog makes a Punk IPA in a blue can. Aldi decides to release a Establishment IPA in a blue can, one that harkens specifically to Brewdog's. Rather than go full IP lawyer-rage, Brewdog takes the whole thing in stride and announces the release of an IPA called Yaldi, which mimicks Aldi's branding. The whole thing is enough to make an IP maximilist keel over and die from an embolism.And, yet, no trademark threats. The only mention of a cease and desist comes from a third party that has a Yaldi brand beer. Aldi never gets in on the threats. Instead, the game continues.
Take notice: this is a major brand basically showing a brewery a better way to create an homage to its own brand. IP maximilists they are not. And, because the folks at Brewdog are apparently made of that old craft brewing DNA, where you treat this business with equal amounts reverence and irreverence, all while maintaining a sense of humor... they did as Aldi requested.
Aldi's response? It said it's looking forward to getting a case of ALD IPA and might even clear some aisle space for it. In other words, there might actually end up being a lucrative business deal coming out of this whole thing.And what's really striking in all of this is just how easily this whole thing could have gone ass up if anyone on either side had decided to play IP fun-police rather than act so human and cool about this whole thing. Brewdog could have gotten pissed at an obvious knockoff beer at Aldi and tried to threaten the grocery chain. It didn't. Aldi could have decided that Brewdog's retort was a bridge too far and tried to threaten the brewery. It didn't.Instead, we might have a business deal in the works. One wonders if this will get the rest of the craft beer industry to pay the slightest bit of attention so it can go back to its old, better ways.

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posted at: 12:00am on 25-Aug-2020
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Consumer Reports Study Shows Many 'Smart' Doorbells Are Dumb, Lack Basic Security

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Like most internet of broken things products, we've noted how "smart" devices quite often aren't all that smart. More than a few times we've written about smart lock consumers getting locked out of their own homes without much recourse. Other times we've noted how the devices simply aren't that secure, with one study finding that 12 of 16 smart locks they tested could be relatively easily hacked thanks to flimsy security standards, something that's the primary feature of many internet of broken things devices."Smart" doorbells aren't much better. A new study by Consumer Reports studied 24 different popular smart doorbell brands, and found substantial security problems with at least five of the models. Many of these flaws exposed user account information, WiFi network information, or, even in some cases, user passwords. Consumer Reports avoids getting too specific as to avoid advertising the flaws while vendors try to fix them:

"Since the manufacturers have yet to fix all but one of the 11 vulnerabilities we discovered, we can't fully describe the issues since we want to avoid supplying information to potential hackers. However, we can tell you which models are affected, some of the risks facing consumers, and how the manufacturers responded to our findings."
The report also found that most models of smart doorbells collect way more data than is actually needed to function (Amazon/Ring's relationship with law enforcement has been well documented by Tim Cushing). Beyond that, barely a quarter of the brands could be bothered to implement two-factor authentication, considered a fairly basic necessity to prevent your account from being compromised:
"Our tests also revealed that most video doorbells lack two-factor authentication, a widely used security feature that sends users a temporary, onetime passcode typically via text message, email, phone, or mobile app to use in addition to their password for logging into their accounts. With this feature enabled, a hacker can't log in to your video doorbell account even if they have your password. In fact, barely a quarter of the brands we tested have two-factor authentication. The only ones that have it are Arlo, August, Google Nest, Ring, and SimpliSafe."
As some security analysts like Bruce Schneier have long noted, there's market failure here in that consumers can't be bothered to research what they buy, manufacturers can't be bothered to properly secure their gear before moving on to hype the next model, and government guidance or punishment for lax security is inconsistent at best. Most of these products are advertised as smarter alternatives to older, dumber tech. But they inadvertently advertise how, in many instances, dumb technology (like a deadbolt, traditional doorbell, or a dog) is consistently the smarter option.

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posted at: 12:00am on 25-Aug-2020
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This Week In Techdirt History: August 16th - 22nd

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Five Years AgoThis week in 2015, new leaks confirmed what we suspected about AT&T's cozy relationship with the NSA, which was especially concerning given the company's long history of fraudulent and abusive behavior, and the fact that the NSA seemed to think telco partners freed it from the constraints of the Fourth Amendment. The leak also revealed that the agency was misleading at best about how many cellphone records it could access.Ten Years AgoThis week in 2010, Peter Sunde gave a fascinating presentation on the history of The Pirate Bay, while we were emphasizing that record labels can still have a role in music if they embrace the ways that role is changing, and a new comprehensive graphic aptly demonstrated just how insane the music licensing world is. The trend of established musicians and industry folk using apocalyptic language to describe the impact of the internet continued, with rants from U2's manager and John Mellencamp (who compared the internet to the atomic bomb).Fifteen Years AgoThis week in 2005, we took a look at how the DMCA was not just a failure but a completely avoidable one with flaws that were obvious from the start, while we were pleased to see one person finally ready to fight back against the RIAA's lawsuits. The mobile music market was on the rise with Japan blazing the trail (and trying to debunk claims that this was due to a lack of wired connections), but we wondered if the market might be killed by aggressive use of DRM. Mobile games were also on the rise, but the biggest and most important development was one we (like many people) underestimated when it happened: Google bought Android, leading to some speculation that they might be building a mobile OS which we said "seems unlikely".

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posted at: 12:00am on 23-Aug-2020
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Apple Goes In Even Harder Against Prepear Over Non-Apple Logo

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A couple of weeks ago, we wrote about Apple opposing the trademark for Prepear, a recipe sharing phone app, over its pear logo. The whole thing was completely absurd. The logos don't look anything alike, the color schemes and artistic styles are different, and also a pear is not an apple. I likened the whole thing to those absurd CNN commercials, which should give you some idea of just how dumb this whole thing was. So, thanks to this idiocy being exposed and the public backlash, Apple finally realized the error of its ways and backed off the opposition.Just kidding. Apple, in fact, has decided to double down in opposing Prepear's trademarks, now going after the Canadian trademark registration for the logo as well.

However, despite the petition now having hit 200,000 signatures, it doesn’t look like Apple is about to let this one go. As further evidence of Apple’s intransigence in this area, iPhone in Canada, which broke the original story earlier this month, is reporting that Apple has in fact doubled-down in its efforts to block the pear-shaped logo trademark registration, taking the fight beyond the U.S. and into Canada, likely as the next step in continuing its opposition to the logo globally.
Worth noting is that Prepear, the threat to Apple as it is, has five employees. That's one less than it previously had, actually, since it had to lay off one staff member due to the ongoing legal fees to fight for its right to have a trademark that is a pear. To try to put public pressure on Apple to stop being the trademark bully, Prepear started an online petition to Apple to back off. After getting thousands of signatures to the petition, Prepear sent it to Apple's PR wing and suggested that everyone get in a room and find an amicable way to end this stupid fight.Apple's PR group didn't even bother to respond.
This is not just Apple’s lawyers being lawyers, it appears that the organization at Apple stands behind its lawyers. As is the case in all bullying, silence about the behavior of the bully is the same thing as support.
Now, Prepear could just go ahead and change its logo, though what type of pear-based logo Apple would find acceptable is an open question. And, besides, that should be entirely besides the point. Prepear is right to think it should be able to use a pear logo. It doesn't look like Apple, isn't going to create any confusion, and Apple is purely a bully here.
While Prepear expects that its fight with Apple will still cost tens of thousands of dollars before it can see it through to the end, it’s stated that it has no plans to do any kind of fundraising through services like GoFundMe, although they’re still asking for moral support via their Change.org petition, and of course still hoping more people will show their support by downloading and using their app.
How this will turn out is anyone's guess. Prepear seems to want to fight, but Apple can almost certainly squeeze the company out in court until it dies if it really wants to. More public pressure might help, I suppose, but Apple has thus far seemed perfectly willing to ignore the will of the same public it claims to be defending from confusion.This is how trademark bullying works and it's a lesson being taught by a master at the art.

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posted at: 12:00am on 22-Aug-2020
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Content Moderation Case Study: Nextdoor Faces Criticism From Volunteer Moderators Over Its Support Of Black Lives Matter (June 2020)

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Summary: Nextdoor is the local neighborhood-focused social network, which allows for hyper-local communication within a neighborhood. The system works by having volunteer moderators from each neighborhood, known as leads. For many years, Nextdoor has faced accusations of perpetuating racial stereotyping from people using the platform to report sightings of black men and women in their neighborhood as somehow suspicious.

With the various Black Lives Matter protests spreading around the country following the killing of George Floyd in Minnesota, many companies have put out messages of support for the Black Lives Matter movement, including Nextdoor, which put up a short blog post entitled Black Lives Matter, with a few links to various groups supporting the movement.This happened around the same time that the site started facing criticism because users posting support of the Black Lives Matter movement were finding their own posts being removed as leads were claiming that posts about the protests violated guidelines not to discuss national and state political issues (even when the posts were about local protests).
Meanwhile, many of the leads were using their own forum to complain about the company's public support for Black Lives Matter at the same time that they believed discussing such issues on the platform violated rules. The ensuing discussion (which in many ways mimicked the wider national discussion) highlighted how frequently local leads are bringing their own political viewpoints into their moderation decisions.When the company also added posts to local Nextdoor communities that highlighted black-owned businesses, as part of its support for Black Lives Matter, it again angered some leads who felt that such posts violated the rules they had been told to enforce.Decisions to be made by Nextdoor:
  • When there are national conversations around movements like Black Lives Matter, when is it appropriate to take a public stand? How will that stand be perceived by users and by local moderators?
  • If the company is taking a stand on an issue like Black Lives Matter, should it then make it clear that related content should be kept on the platform -- even if some moderators believe it violates other guidelines?
  • How much leeway and power should local, volunteer moderators have regarding what content is on the platform?
  • How much communication and transparency should there be with those local moderators?
  • How involved should the company get with regards to implicit or unconscious bias that may come from non-employee, volunteer moderators?
  • Is it feasible to have a rule that suggests that local communities should not be a platform for discussing state or national political issues?  How does that rule play out when those national or state issues also involve local activism?
Questions and policy implications to consider:
  • When issues of national importance, such as civil rights, come to the forefront of the public discussion, there is often the likelihood of them becoming politically divisive. When is it important to take a stand despite this, and how should any messaging be handled -- especially in cases where some staff or volunteers may feel otherwise?
  • Issues of race are particularly controversial to some, and yet vitally important. How should companies handle these questions and debates?
  • Using volunteer moderators to help moderate targeted niche communities has obvious benefits, but how might historical bias and prejudice manifest itself in doing so?
Resolution: Nextdoor has continued to support the Black Lives Matter movement, and Gordon Strause, the company's director of community, went onto the forum where some leads were complaining to explain the company's position and why they were supporting Black Lives Matter, and to push back against those who argued that the movement itself was discriminatory, while also highlighting how there were a variety of perspectives, and there was value in learning about other viewpoints:
In an attempt to quell the furor, Gordon Strause, the company's director of community, wrote on the leads forum on Monday from his own perspective and not on behalf of Nextdoor. Noting that it's of course absolutely true all live [sic] matters, whether they are black, white, brown, blue, or any other color, he explained his views on Black Lives Matter.The goal of the BLM movement, at least as I understand it, is simply to make the point that black lives matter as much as any other lives but too often in America that isn't actually what happens in practice and this dynamic needs to change, he wrote.While no one that I know or respect believes that looting helps anything, there are folks that I respect (including people in my own family) who believe that riots may be a necessary step to help the country finally understand the scale of injustice that has been happening," he wrote, "while other folks I respect believe that the riots will be counterproductive and will only undermine the goals they are meant to achieve. Strause then went on to recommend a book from psychologist Jonathan Haidt and urged leads to listen and not to judge.While Nextdoor is generally not the place for discussions of national issues, I think it's going to [sic] hard to restrain those discussions in the coming days without being perceived as taking sides. So rather than trying to do so, I would recommend that Leads instead focus on a different goal: keeping the discussions as civil and issue focused (rather than personality focused) as possible, he wrote.


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posted at: 12:00am on 22-Aug-2020
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New Jersey Supreme Court Says 'Forgone Conclusion' Trumps Fifth Amendment In Crooked Cop Case

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The New Jersey Supreme Court has made the Fifth Amendment discussion surrounding compelled production of passwords/passcodes more interesting. And by interesting, I mean frustrating. (h/t Orin Kerr)The issue is far from settled and the nation's top court hasn't felt like settling it yet. Precedent continues to accumulate, but it's contradictory and tends to hinge on each court's interpretation of the "foregone conclusion" concept.If the only conclusion that needs to be reached by investigators is that the suspect owns the device and knows the password, it often results in a ruling that says compelled decryption doesn't violate the Fifth Amendment, even if it forces the suspect to produce evidence that could be used against them. Less charitable readings of this concept recognize that "admitting" to ownership of a device is admitting to ownership of everything in it, and view the demand for passcodes as violating Fifth Amendment protections against self-incrimination. The stronger the link between the suspect and the phone, the less Fifth Amendment there is to go around.This decision [PDF] deals with a crooked cop. Sheriff's officer Robert Andrews apparently tipped off a drug dealer who was being investigated. The dealer tipped off law enforcement about Andrews' assistance with avoiding police surveillance -- something that involved Officer Andrews telling the drug suspect to ditch phones he knew were being tapped and giving him information about vehicles being used by undercover officers.Two iPhones were seized from Andrews who refused to unlock them for investigators. Investigators claimed they had no other option but force Andrews to unlock them. According to the decision, there was no workaround available at that time (at some point in late 2015 or early 2016).

According to the State, its Telephone Intelligence Unit was unable to search Andrews’s iPhones -- an iPhone 6 Plus and an iPhone 5s -- because they “had iOS systems greater [than] 8.1, making them extremely difficult to access without the owner/subscriber’s pass code.” A State detective contacted and conferred with the New York Police Department’s (NYPD) Technical Services unit, as well as a technology company called Cellebrite, both of which concluded that the cellphones’ technology made them inaccessible to law enforcement agencies. The detective also consulted the Federal Bureau of Investigation’s Regional Computer Forensics Laboratory, which advised that it employed “essentially the same equipment used by” the State and NYPD and would be unable to access the phones’ contents. The State therefore moved to compel Andrews to disclose the passcodes to his two iPhones.
Apple implemented encryption-by-default in September 2014. Andrews was arrested in July 2015. This would be about the same time the DOJ was trying to force Apple to crack open an iPhone for it in the San Bernardino shooting case. This was ultimately resolved by an outside contractor (most likely Cellebrite), but it appears that no one had a workable solution when investigators in this case attempted to crack the seized phones.Andrews challenged the compelled production of passcodes, claiming this violated his Fifth Amendment rights. The trial court disagreed, as did the state appeals court. The state's top court arrives at the same conclusion.The state argued it actually knew far more than what's needed to clear the "foregone conclusion" bar.
[T]he State argues that communication between co-conspirators has no special privacy status, that the State “has established . . . that it already knows what is on the phone[s],” and that the State has a superior right to the contents of the phones because of the unchallenged search warrant.
The court finds in favor of the state, but it does recognize that passcodes are more testimonial than fingerprints or other biometric features used to unlock devices.
A cellphone’s passcode is analogous to the combination to a safe, not a key. Communicating or entering a passcode requires facts contained within the holder’s mind -- the numbers, letters, or symbols composing the passcode. It is a testimonial act of production.
It also recognizes there may be no clear way to distinguish between passcodes and biometrics when dealing with compelled production.
We also share the concerns voiced by other courts that holding passcodes exempt from production whereas biometric device locks may be subject to compulsion creates inconsistent approaches based on form rather than substance. The distinction becomes even more problematic when considering that, at least in some cases, a biometric device lock can be established only after a passcode is created, calling into question the testimonial/non-testimonial distinction in this context.
The court says the state has proven enough to be granted the "foregone conclusion" exception to the Fifth Amendment.
The State’s demonstration of the passcodes’ existence, Andrews’s previous possession and operation of the cellphones, and the passcodes’ self-authenticating nature render the issue here one of surrender, not testimony, and the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones.
The dissent disagrees. It says that although the tech has changed, the underlying principles of the Fifth Amendment haven't. And it's not just the dissent saying this. It's also the nation's top court, which has never held that the compelled production of incriminating testimony complies with the Constitution.
In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts -- the contents of our minds -- from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.
Given the current split in both federal district courts and state courts on the issue, the dissent says the New Jersey Supreme Court shouldn't be an enabler of potential Fifth Amendment violations in the absence of US Supreme Court precedent.
Until the Court clarifies its intentions about application of the act of production doctrine in this setting, I would follow the only sure directional signs the Court has given…
Things may be slightly harder for investigators at the moment, but it's not the court's role to make things easier for the government. They're supposed to be a check against government power grabs, not an ally in its attempts to limit the protections it supposedly granted to its citizens. We live in a "golden age of surveillance." There's more information available in unencrypted form than there's ever been. And the arms race between device makers and encryption crackers is ongoing. It hasn't ended and device encryption has not been declared the winner.
Law enforcement must find another means of obtaining access to the encrypted substantive information on two cell phones whose contents it wishes to search and for which the government has a search warrant. Technological barriers must be overcome without sacrificing constitutional, deep-seated historical protections against governmental intrusions forcing individuals to become assistants in their own prosecutions. Modern technology continues to evolve, bringing new problems; but it also may bring new solutions.
But that's just the dissent. The majority says the Fifth Amendment can be bypassed if the state can find enough connective tissue between the locked device and the person who refuses to unlock it.

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posted at: 12:00am on 21-Aug-2020
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Epic Games Sued By Company That Manages 'Coral Castle' In Florida Over New Fortnite Map

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Of all the trademark insanity we cover here, there are still little nuggets of niche gold when it comes to the truly insane trademark disputes. There are plenty of these categories, but one of my personal favorites is when real life brands get their knickers twisted over totally unrelated items in fiction. If you cannot conceptualize what I'm talking about, see the lawsuit brought by a software company that creates something called Clean Slate against Warner Bros. because...The Dark Knight Rises had a piece of software in it that was referred to as "clean slate."Which brings us, as most stories about insanity do, to Florida. Epic Games released a new map for its hit game Fortnite recently, entitled Coral Castle. The map includes motifs of water and structures made from coral. CCI, based out of Florida, holds trademarks for a real life landmark called Coral Castle. There too, you can catch real life motifs of water mixed with structures made to look like coral. It is not, however, a video game setting. It is real life. And, yet, CCI has decided to sue Epic Games over the name of its map.

CCI, a Florida corporation, owns two trademarks related to Coral Castle, which is “a limestone structure created by an eccentric Latvian-American named Edward Leedskalnin.” According to the filing, Coral Castle, “often referred to as ‘Florida’s Stonehenge’ … comprises numerous megalithic stones, mostly limestone formed from coral, each weighing several tons.” The two trademarks cover “[o]n-line retail services” like Coral Castle replicas, collectible spoons, thimbles, t-shirts, and CCI’s logo, according to the complaint.
So, merch for the landmark, got it. What that has to do with a video game map is quite literally anyone's guess, but CCI seems to think that between the name of the map and what the filing itself refers to as thematic elements, this is somehow both trademark infringement and going to cause confusion in some kind of manner.
The virtual Coral Castle, CCI contended, “shares common themes with the real Coral Castle,” like castle structures and partial walls, stone objects, and nautical motifs. The complaint avers that both the real and virtual Coral Castle “evoke the feeling of a centuries old mysterious place.”CCI argued that Epic has caused it harm by “utilizing the vast goodwill associated with the [t]rademarks” to promote Fortnite and the sale of in-game purchases without CCI’s consent. Too, Epic has purportedly “used reproductions, counterfeits, copies and/or colorable imitations of the Trademarks in commerce or in connection with the sale, offering for sale, distribution and/or advertising of Defendant’s goods and services, and such use is likely to cause confusion, to cause mistake, and/or to deceive.”
All of which is monumentally silly. Whatever fame Coral Castle might have regionally, it feels quite unlikely that the general populace is going to even know that the landmark exists, never mind somehow connect it to Fortnite's new map. In the absolute worst case scenario, perhaps some gamers might think, true or not, that the map is in some way inspired by the Florida spot. But some sort of confusion in commerce? Where? How?Add to all of this that the map isn't a likeness of the real life landmark what are we even debating this for? Epic made its map different. As in distinct. As in not really trying to fool the public into thinking there was any association here.What CCI could have done, however, would have been to have some fun with this and use it to draw attention to its real life landmark. It went legal instead, foregoing all of the potential good publicity it could have generated.

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posted at: 12:00am on 21-Aug-2020
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Paulding County School District Now Trying To Duck FOIA Requests

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You will recall the brief clusterfuck that occurred earlier this month in Georgia's Paulding County. The school district there, which opened back up for in-person classes while making wearing a mask completely optional, also decided to suspend two students who took and posted pictures of crowded hallways filled with maskless students. While the district dressed these suspensions up as consequences for using a smartphone on school grounds, the school's administration gave the game away by informing all students that they would be disciplined for any criticism by students on social media in general. That, as we pointed out, is a blatant First Amendment violation.Once the blow-back really got going, the school district rescinded the suspensions. In the days following, students and teachers at the school began falling ill and testing positive for COVID-19. It got bad enough that the school decided to shut down. With so much media attention, it was a matter of who was going to get the FOIA requests in for documents on what led to the suspensions first.Vice put a request in. However, because this district can't seem to stop punching itself in the gut, the school district is attempting to duck the FOIA requests entirely. Not through redactions. It just isn't going to give up any internal documents at all, even as it acknowledges it has documents in hand.

"The District is in possession of responsive documents," the response, signed by W. Thomas Cable in their role as the attorney for the Paulding County School District, reads. "However, pursuant to Georgia law, the following categories of information have not been produced, via redaction or removal, to the extent a statutory exclusion is directly applicable."The public records request response also says the records are "specifically required by the federal government to be kept confidential." School districts often attempt to reject freedom of information requests on the grounds of student privacy, but districts and individual schools should be able to produce redacted records that protect privacy while still giving information about how specific decisions were made behind the scenes.
Without question, the district has the ability to disclose the documents requested without violating any student or faculty privacy. What this is instead is a fairly brazen attempt to refuse a records request that will almost certainly be embarrassing for the district. Due to this, the refusal has gotten the attention of the Georgia First Amendment Foundation, which doesn't sound like the kind of group that is going to simply let this go.The cover up is always worse than the crime, as they say. However bad those records would have made Paulding County School District look, it's now going to look all the worse with this attempt to bury the truth, should those documents eventually come out. And, given the speed with which the district retreated from the suspensions when challenged, you have to imagine a little bit of public pressure is all it's going to take here as well.

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posted at: 12:00am on 20-Aug-2020
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Content Moderation Case Study: Amazon's Attempt To Remove 'Sock Puppet' Reviews Results In The Deletion Of Legitimate Reviews (November 2012)

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Summary: As is the case on any site where consumer products are sold, there's always the chance review scores will be artificially inflated by bogus reviews using fake accounts, often described as "sock puppets."Legitimate reviews are organic, prompted by a buyer's experience with a product. "Sock puppets," on the other hand, are bogus accounts created for the purpose of inflating the number of positive (or -- in the case of a competitor -- negative) reviews for a seller's product. Often, they're created by the seller themself. Sometimes these faux reviews are purchased from third parties. "Sock puppet" activity isn't limited to product reviews. The same behavior has been detected in comment threads and on social media platforms.In 2012 -- apparently in response to "sock puppet" activity, some of it linked to a prominent author -- Amazon engaged in a mass deletion of suspected bogus activity. Unfortunately, this moderation effort also removed hundreds of legitimate book reviews written by authors and book readers.In response to authors' complaints that their legitimate reviews had been removed (along with apparently legitimate reviews of their own books), Amazon pointed to its review guidelines, claiming they forbade authors from reviewing other authors' books.

We do not allow reviews on behalf of a person or company with a financial interest in the product or a directly competing product. This includes authors, artists, publishers, manufacturers, or third-party merchants selling the product. As a result, we've removed your reviews for this title. Any further violations of our posted Guidelines may result in the removal of this item from our website.
Multiple authors sought to have their legitimate reviews reinstated (including reviews of their books written by readers), but Amazon refused, insisting that authors reviewing other authors' books constituted a violation of its review guidelines, even if authors had no financial interest in the books they were reviewing.Amazon's handling of reviews in response to sock puppet activity continues to be criticized periodically, most recently over the mass removal of one-star reviews for Hillary Clinton's 2017 book about her presidential election run.Decisions to be made by Amazon:
  • What characteristics do sock puppet reviews have, that make them distinct from legitimate reviews?
  • Do more steps need to be added to the process of verifying reviewers?
  • When targeting sock puppet activity, are options considered that might reduce the chance of negatively affecting legitimate reviews?
  • Would more flexibility in moderation decisions help or harm efforts targeting abusers of the review system?
  • Is the loss of goodwill towards the company by sellers an acceptable tradeoff for moderation efforts that remove possibly legitimate reviews of their products?
  • Can moderation efforts be handled with more human interaction to reduce the number of legitimate reviews inadvertently targeted?
Questions and policy implications to consider:
  • As the number of vendors and products continues to expand, how reasonable is it to expect reviewers to avoid violating the rule forbidding reviews of products by someone offering a competing product?
  • How much moderation should be left to automatic mechanisms when dealing with suspected sock puppet activity?
  • Does the inevitable collateral damage of these efforts raise or lower the legitimacy of the remaining reviews in the eyes of potential customers?
  • Would more transparency on review moderation efforts lead to more or less abuse of the review system?
  • Do mishandled moderation efforts harm buyers or sellers more? Which harm is more acceptable?
Resolution: Amazon reacted to news reports about sock puppet activity involving major authors by engaging in mass removals of anything that appeared questionable to moderators. Legitimate reviews/reviewers were caught up in the sweep, resulting in several authors publicly criticizing the company for not being more careful with its moderation efforts.

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posted at: 12:00am on 20-Aug-2020
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DC Police Union Sues To Block The Release Of Names Of Officers Involved In Shootings

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Washington DC responded to widespread protests following the killing of George Floyd with a set of police reforms that tried to address some systemic problems in the district's police department, starting with its lack of transparency and accountability.The reform bill -- passed two weeks after George Floyd's killing -- placed new limits on deadly force deployment, banned the Metropolitan PD from acquiring military equipment through the Defense Department's 1033 program, and mandated release of body-camera footage within 72 hours of any shooting by police officers. The names of the officers involved are covered by the same mandate, ensuring it won't take a lawsuit to get the PD to disclose info about officers deploying deadly force.But there's a lawsuit already in the mix -- one that hopes to keep the public separated from camera footage and officers' names. Unsurprisingly, it's been filed by a longtime opponent of police accountability.

The Washington, D.C., police union said on Monday it asked a court to block the mandatory release of body camera footage and names of police officers involved in shootings.
According to the union, releasing the names of officers will do bad things to the good names of cops who kill people.
“The release of the body-camera footage and names of officers will unjustly malign and permanently tarnish the reputation and good name of any officer that is later cleared of misconduct concerning the use of force,” the union said in a statement.
First off, it's almost impossible to "permanently tarnish" a cop's reputation. Even the worst cops often have little trouble resuming their law enforcement careers after engaging in egregious misconduct. They may have to shop their resumes around a little bit, but lots of PDs and Sheriffs' offices are more than willing to hire bad cops no longer welcome at their original agency.Second, nothing about this should hinge on whether or not the force deployment was justified. If an officer is later cleared of wrongdoing, they'll be able to go back to work. If not, they'll probably still be able to go back to work -- either with the DCPD or with any other agency more interested in staffing their forces than performing due diligence.And it's a little rich for the union to ask that officers' names be withheld on the off chance they might be found innocent. The names of people arrested or cited are public records, even if they're ultimately never convicted of a crime. Suing to get cops held to a lower standard is a terrible use of taxpayer funds. Public sector unions collect dues from paychecks and build their litigation war chests using donations from officers -- all of which can ultimately be traced back to the same public the union is trying to keep in the dark.The lawsuit [PDF] (which inexplicably isn't included in multiple articles about the lawsuit) raises the specter of vengeful vigilantes hunting down cops who killed or maimed friends or family members.
When officers justifiably use force against a criminal suspect, the immediate public release of the officer's name and the body-worn camera footage will allow the suspect and their associates to identify the officer and potentially seek retribution against the officer and his or her family.
This is a ridiculous reason to withhold officers' names. This is Hollywood rationale -- an uninspired trope that's best left in an undeveloped screenplay. It's not that it never happens. It's that it happens so rarely it can't be raised as a plausible argument for blanket secrecy.The lawsuit also argues -- equally implausibly -- that there's an inherent right to privacy contained in actions performed by public servants in public.
The release of the officer's name and other identifying information contained in the body-worn camera footage will further impermissibly invade the officer's fundamental right to privacy.
Doesn't seem there would be that much privacy in performing public service, especially when someone gets serviced to death by an officer's force deployment. But that's the argument the union will make to shield its fan base from public criticism. Hopefully, the DC court will route this lawsuit to its OUT box as quickly as possible so DC residents can start benefiting from the transparency the district has finally forced on its police force.

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posted at: 12:00am on 19-Aug-2020
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Costco Gets Trademark Judgement Overturned, Defeating Tiffany And Co.

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Readers here will be sick of this, but we're going to have to keep beating it into the general populace's head: trademark law is about preventing confusion as to the source of a good or service. The idea is to keep buyers from being fooled into buying stuff from one company or person while thinking they were buying it from another. That's basically it.It's a lesson still to be learned, and one which a federal judge has imparted on famed jewelry maker Tiffany & Co. The backstory here is that back in 2013, on Valentine's Day of all days, Tiffany & Co. sued Costco over the latter's advertisement of "Tiffany" style rings.

U.S. District Judge Laura Taylor Swain said Tiffany deserves $11.1 million, plus interest, representing triple the lost profit from Costco's trademark infringement, plus the $8.25 million in punitive damages awarded by a jury last October.The Manhattan judge also permanently barred Costco from selling anything that Tiffany did not make as "Tiffany" products, unless it uses modifiers suggesting that the products have, for example, a Tiffany "setting," "set" or "style."
The reason for that last bit is that Costco's argument against the judgement was that its references to "Tiffany" were about an iconic setting for engagement rings. Tiffany & Co. did indeed make that setting famous, but tons of non-Tiffany rings are sold with that style. In fact, it's become such a generic term in the industry after nearly 150 years of use that articles discussing the setting essentially note that there is no trademark concern to have here. From Forbes, for instance:
The formula was immensely successful. So much so that the term “Tiffany setting” has reached Kleenex status—it’s now used colloquially throughout the jewelry industry to describe any multi-pronged solitaire setting, Tiffany or no.
So, even if there were a trademark claim to be had here at one point in history, that ship has sailed. Except in the lawsuit against Costco, the court disagreed, leading to an appeal by Costco.And with that appeal comes a reversal of the lower court's decision.
A federal appeals court Monday overturned a $21 million verdict against Costco Wholesale Corp. for trademark infringement over its marketing of diamond rings labeled as “Tiffany,” ruling that the lower court judge who had issued an initial ruling in the case had failed to adequately consider contrary evidence.Costco’s evidence “was sufficient to raise a question as to whether potential buyers of Costco’s diamond engagement rings were actually confused by the appearance of the word “Tiffany” on Costco’s signs,” the ruling said.
Now, this was the overturning of a summary judgement by the lower court. In other words, this ruling is essentially stating that the lower court improperly kept this from going to a full trial, where Costco would be allowed to present evidence that its use was proper given the generic nature of the term, as well as evidence that there was little to no customer confusion to be had. And that evidence is quite good, actually.Here again we go back to the beginning of this post, where we lay out that trademark law is supposed to be about keeping customers from being fooled as to the source of a good or service. Well, Costco decided to run a real life experiment on this of its use of the term "Tiffany."
It said after the complaint was filed, Costco sent a letter to all customers who had purchased the engagement rings with Tiffany settings and reminded them that its return policy entitled them to return their rings for a full refund at any time, but only 1.3% of its customers returned their rings.
Tiffany & Co. is already making noises about trying this case again, but hopefully it will instead simply bask in the glory that is a setting so popular that it's become generic. If not, I'd expect Costco to win out on the merits.

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posted at: 12:00am on 19-Aug-2020
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England's Exam Fiasco Shows How Not To Apply Algorithms To Complex Problems With Massive Social Impact

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The disruption caused by COVID-19 has touched most aspects of daily life. Education is obviously no exception, as the heated debates about whether students should return to school demonstrate. But another tricky issue is how school exams should be conducted. Back in May, Techdirt wrote about one approach: online testing, which brings with it its own challenges. Where online testing is not an option, other ways of evaluating students at key points in their educational career need to be found. In the UK, the key test is the GCE Advanced level, or A-level for short, taken in the year when students turn 18. Its grades are crucially important because they form the basis on which most university places are awarded in the UK.Since it was not possible to hold the exams as usual, and online testing was not an option either, the body responsible for running exams in the UK, Ofqual, turned to technology. It came up with an algorithm that could be used to predict a student's grades. The results of this high-tech approach have just been announced in England (other parts of the UK run their exams independently). It has not gone well. Large numbers of students have had their expected grades, as predicted by their teachers, downgraded, sometimes substantially. An analysis from one of the main UK educational associations has found that the downgrading is systematic: "the grades awarded to students this year were lower in all 41 subjects than they were for the average of the previous three years."Even worse, the downgrading turns out to have affected students in poorly performing schools, typically in socially deprived areas, the most, while schools that have historically done well, often in affluent areas, or privately funded, saw their students' grades improve over teachers' predictions. In other words, the algorithm perpetuates inequality, making it harder for brilliant students in poor schools or from deprived backgrounds to go to top universities. A detailed mathematical analysis by Tom SF Haines explains how this fiasco came about:

Let's start with the model used by Ofqual to predict grades (p85 onwards of their 319 page report). Each school submits a list of their students from worst student to best student (it included teacher suggested grades, but they threw those away for larger cohorts). Ofqual then takes the distribution of grades from the previous year, applies a little magic to update them for 2020, and just assigns the students to the grades in rank order. If Ofqual predicts that 40% of the school is getting an A [the top grade] then that's exactly what happens, irrespective of what the teachers thought they were going to get. If Ofqual predicts that 3 students are going to get a U [the bottom grade] then you better hope you're not one of the three lowest rated students.
As this makes clear, the inflexibility of the approach guarantees that there will be many cases of injustice, where bright and hard-working students will be given poor grades simply because they were lower down in the class ranking, or because the school did badly the previous year. Twitter and UK newspapers are currently full of stories of young people whose hopes have been dashed by this effect, as they have now lost the places they had been offered at university, because of these poorer-than-expected grades. The problem is so serious, and the anger expressed by parents of all political affiliations so palpable, that the UK government has been forced to scrap Ofqual's algorithmic approach completely, and will now use the teachers' predicted grades in England. Exactly the same happened in Scotland, which also applied a flawed algorithm, and caused similarly huge anguish to thousands of students, before dropping the idea.The idea of writing algorithms to solve this complex problem is not necessarily wrong. Other solutions -- like using grades predicted by teachers -- have their own issues, including bias and grade inflation. The problems in England arose because people did not think through the real-life consequences for individual students of the algorithm's abstract rules -- even though they were warned of the model's flaws. Haines offers some useful, practical advice on how it should have been done:
The problem is with management: they should have asked for help. Faced with a problem this complex and this important they needed to bring in external checkers. They needed to publish the approach months ago, so it could be widely read and mistakes found. While the fact they published the algorithm at all is to be commended (if possibly a legal requirement due to the GDPR right to an explanation), they didn't go anywhere near far enough. Publishing their implementations of the models used would have allowed even greater scrutiny, including bug hunting.
As Haines points out, last year the UK's Alan Turing Institute published an excellent guide to implementing and using AI ethically and safely (pdf). At its heart lie the FAST Track Principles: fairness, accountability, sustainability and transparency. The fact that Ofqual evidently didn't think to apply them to its exam algorithm means its only gets a U grade for its work on this problem. Must try harder.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 18-Aug-2020
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Confused Critic Of Section 230 Now In Charge Of NTIA

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Multiple experts on Section 230 have pointed out that the NTIA's bizarre petition to the FCC to reinterpret Section 230 of the Communications Decency Act is complete nonsense. Professor Eric Goldman's analysis is quite thorough in ripping the petition to shreds.

Normally we expect a government agency like NTIA to provide an intellectually honest assessment of the pros/cons of its actions and not engage in brazen partisan advocacy. Not any more. This petition reads like an appellate brief that would get a C- in a 1L legal writing course. It demonstrated a poor understanding of the facts, the law, and the policy considerations; and it ignored obvious counterarguments. The petition is not designed to advance the interests of America; it is designed to burn it all down.
As we mentioned, it seemed likely that the petition was written by Adam Candeub, a lawyer who was only hired a few months ago by the NTIA. Readers may recognize Candeub's name because he represented the white nationalist Jared Taylor in a failed lawsuit against Twitter for kicking him off the platform. At the time of the lawsuit, I engaged in an email discussion with Candeub in which he tried to justify his lawsuit, and it included the same sort of nonsense and debunked legal theories we now see in the NTIA petition. In that email exchange, he told me that "Section 230 doesn't help Twitter" because "if an internet firm starts to edit or curate others' comments -- creating its own content, it loses this immunity." That, of course, is incorrect.Indeed, the California courts agreed with me (and basically every other court) in ruling that Section 230 protected Twitter's decision to remove Candeub's client.Of course, in the past couple of years since all of that went down, Candeub has continued his quixotic quest to reimagine Section 230 to say what he wants it to say, rather than what the plain language of the law, and basically every court on record (and the authors of the law) have said that it actually says.And now he'll get to do that as the guy in charge of NTIA. Axios is reporting that Candeub has been promoted to become the acting head of NTIA. Given Candeub's activism on this issue it's an odd role for him, and, as has happened so often in this particular administration, a destruction of historical norms. NTIA has historically been extremely balanced and avoids direct political advocacy type positions. It certainly appears that it will be taking a different approach under Candeub, and that approach includes a blatant misrepresentation of key laws about the internet. Historically, NTIA has been an important agency in protecting the open internet -- but now it should be seen as hostile to such an open internet. And that's disappointing for its legacy.

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posted at: 12:00am on 18-Aug-2020
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This Week In Techdirt History: August 9th - 15th

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Five Years AgoThis week in 2015, Google was in the news twice — first for their inevitable admission that Google+ was a failure, and then for their surprising announcement of the new corporate structure under the parent company Alphabet. Meanwhile, a CIA FOIA dump provided new information about spying on the Senate, including the accidental release of an apology letter the CIA wrote but never sent. We also saw more DMCA shenanigans as Vimeo complied with bogus mass-takedowns over the word "Pixels" and a convicted fraudster sent a bogus takedown to Techdirt over our coverage of previous bogus takedowns.Ten Years AgoThis week in 2010, RIM managed to work out a deal with the Saudi Arabian government to prevent a BlackBerry ban, raising the question of just what device security would be like under this new agreement. We saw some... questionable journalism choices as the Washington Post peddled anti-Craigslist ideas by citing one of its own anti-Craigslist advertisers, and the Associated Press was strangely not reporting on the judge denying sanctions in its lawsuit against Shepard Fairey. Meanwhile, we took a look at how the FBI was prioritizing copyright issues, Congress introduced yet another iteration of a disastrous fashion copyright bill, Viacom unsurprisingly appealed the YouTube ruling, and, in a major move to protect free speech, the anti-libel-tourism SPEECH Act became law.Fifteen Years AgoThis week in 2005, AOL was trying to regain some relevance by moving into the wireless space, while Blockbuster gave up on trying to beat Netflix on price by raising its online DVD rental prices to match. The FCC was subtly but significantly downgrading the concept of internet freedoms, one school was refusing to back down on felony charges against students over some harmless hacking, and an Australian ISP was threatening to sue a forum over public information. We also talked some more about the myth of copy protection as a useful idea, and wondered if some of the companies trying to foist it on people thought buyers were complete idiots.

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posted at: 12:00am on 16-Aug-2020
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Content Moderation Case Study: Twitter Acts To Remove Accounts For Violating The Terms Of Service By Buying/Selling Engagement (March 2018)

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Summary: After an investigation by BuzzFeed uncovered several accounts trafficking in paid access to "decks" -- Tweetdeck accounts from which buyers could mass-retweet their own tweets to make them go "viral" -- Twitter acted to shut down the abusive accounts.

Most of the accounts were run by teens who leveraged the tools provided by Twitter-owned Tweetdeck to provide mass exposure to tweets for paying customers. Until Twitter acted, users who saw their tweets go viral under other users' names tried to police the problem by naming paid accounts and putting them on blocklists.Twitter's Rules expressly forbid users from "artificially inflating account interactions. But most accounts were apparently removed under Twitter's anti-spam policy -- one it beefed up after BuzzFeed published its investigation. The biggest change was the removal of the ability to simultaneously retweet tweets from several different accounts, rendering these "decks" built by "Tweetdeckers" mostly useless. Tweetdeckers responded by taking a manual approach to faux virality, sending direct messages requesting mutual retweets of posted content.Unlike other corrective actions taken by Twitter in response to mass abuse, this cleanup process appears to have resulted in almost no collateral damage. Some users complained their follower counts had dropped, but this was likely the result of near-simultaneous moderation efforts targeting bot accounts.Decisions to be made by Twitter:
  • Do additional moderation efforts -- AI or otherwise -- need to be deployed to detect abuse of Twitter Rules?
  • How often do these efforts mistakenly target legitimately "viral" content?
  • Will altering Tweetdeck features harm users who aren't engaged in the buying and selling of "engagement?"
  • Will power users or those seeking to abuse the rules move to other third-party offerings to avoid moderation efforts?
  • Is there any way to neutralize "retweet for retweet" requests in direct messages without raising concerns about user privacy?
Questions and policy implications to consider:
  • Does targeting spam more aggressively risk alienating advertisers who rely on repetitive/scheduled posts and active user engagement?
  • Does spam (in whatever form -- including the manufactured virality seen above) still provide some value for Twitter as a company, considering it relies on active users and engagement to secure funding and/or sell ad space to companies?
  • Do viral posts still add value for Twitter users, even if the source of the virality is illegitimate?
  • Will increased moderation of spam reduce user engagement during events where advertising efforts and user engagement are routinely expected to increase (elections, sporting events, etc.)?  
Resolution: Twitter moved quickly to disable and delete accounts linked to the marketing of user engagement. It chose to use its anti-spam rules as justification for account removals, even though users were allegedly engaged in other violations of the terms of service. The buying and selling of Twitter followers -- along with retweets and likes -- continues to be a problem, but Twitter clearly has a toolset in place that is effective against the behavior seen here. Due to the reliance on spam rules, the alterations to Tweetdeck -- a favorite of Twitter power users -- appear to have done minimal damage to legitimate users who enjoy the advantages of this expanded product.

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posted at: 12:00am on 15-Aug-2020
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Just As The Postal Service Is Being Dismantled To Prevent The Handling Of Mail In Ballots, It Tries To Patent Blockchain Voting By Mail

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We are living in truly dystopian times. As you may have heard, this week there have been a bunch of stories regarding the somewhat systematic dismantling of US Postal Service operations in what appears to be a coordinated effort by this administration to foil the process of sending and collecting mail-in ballots. But, apparently, rather than ensuring its own ability to handle mail-in ballots for this election, the US Postal service is trying to... patent blockchain-based voting?As you almost certainly know, President Trump has been -- without any factual basis at all -- decrying mail-in ballots, despite the fact that they have been proven safe and effective. As we're in the middle of a pandemic -- made significantly worse by this administration's own incompetence -- whose made mode of transmission is gathering indoors, the need for more mail-in ballots is obvious to anyone who cares about a functioning democracy. Instead, the President has apparently focused on making it impossible. While that seemed like a conspiracy theory to many, he admitted he was holding up funding for exactly that reason:

"They want three and a half billion dollars for something that'll turn out to be fraudulent, that's election money basically. They want three and a half billion dollars for the mail-in votes. Universal mail-in ballots. They want $25 billion, billion, for the Post Office. Now they need that money in order to make the Post Office work so it can take all of these millions and millions of ballots," Trump said, repeating his false claims that mail-in voting would be "fraudulent.""But if they don't get those two items that means you can't have universal mail-in voting because you they're not equipped to have it," Trump added.
Except, again, there is no evidence to support the claims of mail-in ballot fraud. Indeed, Trump and the first lady themselves have requested mail-in ballots in Florida (where he does not reside) and when questioned as to why it was okay for their to be mail-in ballots there, has said it works in Florida because there's a Republican governor.
So Florida has got a great Republican governor, and it had a great Republican governor. Ron DeSantis, Rick Scott, two great governors. And over a long period of time, they've been able to get the absentee ballots done extremely professionally. Florida is different from other states.
He's also supported mail-in ballots among his supporters in North Carolina. Of course, it's notable that North Carolina is basically the one place where there was some evidence of mail-ballot fraud... conducted by Republican operatives.At the same time, however, beyond just blocking funding for the USPS, other efforts have been made to harm the ability to handle mail-in ballots. The Postmaster General, Louis DeJoy, who was only just appointed in May, fired a bunch of top USPS execs in a "Friday Night Massacre" a week ago. And this week, it seems like there's been a new story every hour or so. All over the country, the USPS started removing and dismantling expensive postal sorting machines for now clear reason.There have also been reports in places like Montana and Oregon that the familiar blue postal boxes were being removed for unclear reasons.To drive all of this home, the USPS has directly warned 46 states (and Washington DC) that it may have delays in handling mail-in ballots.But have no fear (or, really, have lots and lots of fear), because in the midst of all of this, a USPS patent application for blockchain-based mail-in ballots has been released. Applied for back in February, but just now revealed, the patent application first noticed by Jamie Love is for:
A voting system that can use the security of blockchain and the mail to provide a reliable voting system. A registered voter receives a computer readable code in the mail and confirms identity and confirms correct ballot information in an election. The system separates voter identification and votes to ensure vote anonymity, and stores votes on a distributed ledger in a blockchain.
Of course, as we've highlighted in the past, while some people keep pushing for blockchain-based voting it solves none of the problems of actual online voting, and leverages none of the benefits of the blockchain. Indeed, basically every blockchain-based voting system to date has been a dumpster fire of security concerns and, given everything else discussed above, you can bet the same would be true for any USPS-based blockchain voting system.Even so, the timing of this release of this patent, in the midst of everything else going on with the USPS and efforts to suppress mail-in ballots (well, at least from those who don't support the President) is the kind of coincidental timing that even the worst Hollywood writers would reject as just too on the nose. Alas...

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posted at: 12:00am on 15-Aug-2020
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Boston University Applies For Trademark On Offensive COVID-19 Awareness Slogan For Some Reason

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Anyone who knows anything about me knows how much I both love and rely on profanity. Love, because profane language is precisely the sort of color the world needs more of. Rely on, because I use certain profane words the way most people use commas. So, when the courts decided that even the most profane words could be used in trademarks, I applauded. Fucks were literally given.But not every piece of profanity deserves a trademark. And, while I again applaud Boston University's decision to create a profane slogan around COVID-19 safety awareness for its student body, why in the actual fuck did the slogan have to be trademarked?First, the context:

Boston University asked a group of communications students for help encouraging their peers to follow the school’s strict COVID-19 safety guidelines when they return to campus for the upcoming semester.What it got back was a slogan that did not mince words.Last week, BU officials filed a trademark application for the slogan “F*ck It Won’t Cut It” in order to promote “public awareness of safe and smart actions and behaviors for college and university students in a COVID-19 environment.” The filing first garnered attention after a trademark lawyer flagged it Tuesday morning on Twitter.
On the slogan, fuck yeah! In fact, pretty good for a Methodist school! But on the trademark application, what the fuck? I have serious questions as to whether the application even meets the criteria for a valid mark to begin with. How, precisely, is this being used in commerce? What good or service is this trademark supposed to identify a source for? Schooling? Not really. Healthcare? Nah. What precisely are we doing here?
“Our slogan is a powerful phrase that sparks a reminder for students to make safe choices at decision points each day, because saying ‘F-it’ to responsible protocols won’t keep us on campus,” Hailey McKee, a BU graduate student and public relations manager for the campaign, told the Boston Business Journal.
Well, sure, but why hell does this need to be siloed to Boston U via trademark? The school really doesn't want its sister universities to be able to raise effective awareness using the slogan as well? Why not?This feels ultimately like another long-tail outcome of permission culture and expansive IP enforcement, where an entity just defaults to wanting to claim IP on all the things. But the world would be better if leading institutions like BU... you know... did better.

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posted at: 12:00am on 14-Aug-2020
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Another Day, Another Judge Is Wondering Whether Or Not A Richard Liebowitz Client Knows He's A Richard Liebowitz Client

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Richard Liebowitz appears to be in trouble with a judge yet again. Judge Lewis Kaplan has issued quite an order in one of Liebowitz's thousands of cases -- Chosen Figure LLC v. Smiley Miley -- asking for proof that the plaintiff actually knows it's a client of Richard Liebowitz. The judge seems quite aware of Liebowitz's reputation:

Plaintiff's attorney, Richard Liebowitz has become quite well known for his failures to comply with court rules and orders, for having been sanctioned, and in a couple of cases for having lied to judges.
When an order starts that way, you know that it's not going to go well for Liebowitz.Judge Kaplan notes that right as Liebowitz was required to send notices to every docket of the benchslap ruling he had received from Judge Jesse Furman, he dismissed this particular case (as he did with a bunch of others), claiming that a settlement had been reached. But, thanks to Liebowitz's reputation, Judge Kaplan wanted more info. This is... not particularly common. If you tell a judge you have a settlement they usually don't squint questionably at you. But here:
The Court, concerned in light of Mr. Liebowitz's history as to whether he in fact had been retained by the plaintiff and authorized to sue and to settle, entered an order stating in relevant part, the following:
On or before August 6, 2020, Mr. Liebowitz shall file (1) a personal affidavit or declaration (a) stating whether and when the plaintiff in this case specifically authorized him to (i) file this action and (ii) settle it, and (b) attaching any retainer agreement or other documentary evidence as to the foregoing, as well as (2) a personal affidavit or declaration of the plaintiff (a) stating whether and when the plaintiff in this case specifically authorized Mr. Liebowitz to (i) file this action and (ii) settle it, and (b) attaching any documentary evidence as to the foregoing. Failure to comply in all respects may result in the imposition of sanctions."
Judge Kaplan appears well aware of Liebowitz's history of not actually following instructions and felt the need to spell things out rather specifically in the order, rather than leave any chance for vagueness or confusion. Did Richard Liebowitz comply with the order? I'll give you one guess, and I know you'll get it right... because, no, of course Richard Liebowitz did not actually comply with the order. He did submit two declarations -- one from himself, and another from Josiah Kamau, who is a principal for Chosen Figure LLC -- but neither fulfilled the requirements of the order. First, as to Liebowitz's own declaration:
The Liebowitz declaration asserts that "[o]n February 28, 2019, Plaintiff, via itsprincipal Josiah Kamau, signed a retainer agreement with Liebowitz Law Firm, PLLC, ('LLF') inwhich Plaintiff authorized LLF to file copyright infringement lawsuits on his behalf." It goes on tostate that Mr. Liebowitz filed this action on June 23, 2020 (almost 16 months after the allegeddate of the retainer agreement), that he notified plaintiff on June 23, 2020 that he had broughtthis action, and that Mr. Liebowitz had plaintiffs authority to settle the case. It attaches whatMr. Liebowitz claims are copies of the signature page of the retainer agreement and an email toMr. Kamau notifying Kamau that he had brought this action in the name of an entity.Several points are notable about this declaration. First, Mr. Liebowitz did not complywith the Court's direction to submit the retainer agreement. The purported signature page revealsnothing whatsoever about the alleged retainer agreement, and Mr. Liebowitz did not submit anydocumentary evidence as to anything beyond this page and the notification email. Second, Mr.Liebowitz claims that plaintiff (Chosen Figure, LLC) authorized him to file this action, but thepurported signature page of the retainer agreement that he submitted was executed on behalf of Mr.Kamau personally and not on behalf of any corporate or other entity. Third, the purported retaineragreement was signed on February 28, 2019. This is nearly a year before the alleged infringementin this case took place, which the complaint makes clear was February 12, 2020. Whatever theterms of the agreement may be - the Court does not know because Mr. Liebowitz failed to submitit, despite a clear order requiring him to do so under threat of sanctions - the agreement cannotpossibly serve as evidence that "the plaintiff in this case specifically authorized him to (i) file thisaction and (ii) settle it."
That's not good, Richard. Not good at all. For what it's worth, I'll just note that since this is a case from this year, in other cases, Liebowitz has insisted that since having an epic benchslap back in November of last year, he had put in place better case management tools. So, he has no excuse this time around.As for the other declaration, well, that's not going to cut it either:
The Kamau declaration avers that, "[o]n February 28, 2019, [Kamau]personally signed a retainer agreement with Liebowitz Law Firm, PLLC ('LLF') in which[he] authorized LLF to file copyright infringement lawsuits on [his] behalf"; that Mr. Liebowitz"had [his] authority to file the present copyright infringement lawsuit as of March 17,2020"; that Mr. Liebowitz notified him of the filing of this action on June 23, 2020 byemail; and that Mr. Liebowitz had authority to settle the case. The declaration contains twoexhibits, which are the same signature page and notification email attached to Mr. Liebowitz'sdeclaration. It does not include any evidence supporting Kamau' s claim that he gave Mr.Liebowitz permission to file this lawsuit on March 17, 2020 or to settle it at a later time.This declaration raises additional questions. Mr. Liebowitz claims that he hadauthority to bring this action by virtue of the purported February 28, 2019 retainer agreement. Mr.Kamau, however, declares that Mr. Liebowitz "had authority to file the present ... lawsuit as ofMarch 17, 2020," thus implying that the retainer agreement of February 28, 2019 did not authorizethe filing of this action. And Mr. Kamau, like Mr. Liebowitz, has submitted no documentation apartfrom the purported signature page and the June 23, 2020 email.
Given Liebowitz's history, which this judge is well acquainted with, let's just say Judge Kaplan is not happy:
This Court's order of July 30 required - and still requires - production of the fullretainer agreement or agreements and all documentary evidence with respect to Mr. Liebowitz'sauthority to bring and settle this case. That includes all emails, letters, notes and other writings orelectronically stored information bearing on the retention, the scope of the engagement (includingas it may have changed from time to time), and the settlement.All of this material shall be filed by Messrs. Liebowitz and Kamau no later thanAugust 18, 2020.
Get your popcorn ready...

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posted at: 12:00am on 14-Aug-2020
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Las Vegas Police Are Running Lots Of Low Quality Images Through Their Facial Recognition System

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Even when facial recognition software works well, it still performs pretty poorly. When algorithms aren't generating false positives, they're acting on the biases programmed into them, making it far more likely for minorities to be misidentified by the software.The better the image quality, the better the search results. The use of a low-quality image pulled from a store security camera resulted in the arrest of the wrong person in Detroit, Michigan. The use of another image with the same software -- one that didn't show the distinctive arm tattoos of the non-perp hauled in by Detroit police -- resulted in another bogus arrest by the same department.In both cases, the department swore the facial recognition software was only part of the equation. The software used by Michigan law enforcement warns investigators search results should not be used as sole probable cause for someone's arrest, but the additional steps taken by investigators (which were minimal) still didn't prevent the arrests from happening.That's the same claim made by Las Vegas law enforcement: facial recognition search results are merely leads, rather than probable cause. As is the case everywhere law enforcement uses this tech, low-quality input images are common. Investigating crimes means utilizing security camera footage, which utilizes cameras far less powerful than the multi-megapixel cameras found on everyone's phones. The Las Vegas Metro Police Department relied on low-quality images for many of its facial recognition searches, documents obtained by Motherboard show.

In 2019, the LVMPD conducted 924 facial recognition searches using the system it purchased from Vigilant Solutions, according to data obtained by Motherboard through a public records request. Vigilant Solutions—which also leases its massive license plate reader database to federal agencies—was bought last year by Motorola Solutions for $445 million.Of those searches, 471 were done using images the department deemed “suitable,” and they resulted in matches with at least one “likely positive candidate” 67% of the time. But 451 searches, nearly half, were run on “non-suitable” probe images. Those searches returned likely positive matches—which could mean anywhere from one to 20 or more mugshots, all with varying confidence scores assigned by the system—only 18% of the time.
Fortunately, low-quality images seemingly rarely return anything investigators can use. (Although that 18% is still 82 "likely positive matches...") If the system did, we'd be seeing far more bogus arrests than we've seen to this point. Of course, prosecutors and police aren't letting suspects know facial recognition software contributed to their arrests, so courtroom challenges have been pretty much nonexistent.Although most of the information in the documents is redacted -- making it difficult to verify LVMPD claims about the software's contribution to arrests and prosecutions -- enough details remained to provide a suspect facing murder charges with information the LVMPD had never turned over to him or admitted to in court.
Clark Patrick, the Las Vegas attorney representing [Alexander] Buzz, told Motherboard that neither the LVMPD nor the Clark County District Attorney’s office ever informed him that investigators identified Buzz as a suspect using, at least in part, facial recognition technology. The Clark County District Attorney’s office did not respond to an interview request or written questions.
Had this information been given to Buzz and his attorney at the beginning of the trial, he likely would not have waived his right to a preliminary evidentiary hearing. If this had taken place -- along with knowledge of a private company's contribution to the investigation -- prosecutors may have had to produce information about the tech and the surveillance footage it pulled images from.The documents don't appear to show a reliance on low-quality images to make arrests, but they do show investigators will run nearly any image through the software to see if it generates some hits. The precautions taken after this matter most. If investigators are only considering matches to be leads, it will head off most false arrests. But if investigators take shortcuts -- as appears to have happened in Detroit -- the outcome is disastrous for those falsely arrested. A person's rights and freedoms shouldn't be at the mercy of software that performs poorly even when given good images to work with. The use of this software is never going to go away completely, but agencies can mitigate the damage by refusing to treat matches as probable cause.

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Creating Family Friendly Chat More Difficult Than Imagined (1996)

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Summary: Creating family friendly environments on the internet presents some interesting challenges that highlight the trade-offs in content moderation. One of the founders of Electric Communities, a pioneer in early online communities, gave a detailed overview of the difficulties in trying to build such a virtual world for Disney that included chat functionality. He described being brought in by Disney alongside someone from a kids' software company, Knowledge Adventure, who had built an online community in the mid-90s called KA-Worlds. Disney wanted to build a virtual community space, HercWorld, to go along with the movie Hercules. After reviewing Disney's requirements for an online community, they realized chat would be next to impossible:

Even in 1996, we knew that text-filters are no good at solving this kind of problem, so I asked for a clarification: "I'm confused. What standard should we use to decide if a message would be a problem for Disney?"The response was one I will never forget: "Disney's standard is quite clear:No kid will be harassed, even if they don't know they are being harassed."..."OK. That means Chat Is Out of HercWorld, there is absolutely no way to meet your standard without exorbitantly high moderation costs," we replied.One of their guys piped up: "Couldn't we do some kind of sentence constructor, with a limited vocabulary of safe words?"Before we could give it any serious thought, their own project manager interrupted, "That won't work. We tried it for KA-Worlds.""We spent several weeks building a UI that used pop-downs to construct sentences, and only had completely harmless words - the standard parts of grammar and safe nouns like cars, animals, and objects in the world.""We thought it was the perfect solution, until we set our first 14-year old boy down in front of it. Within minutes he'd created the following sentence:
I want to stick my long-necked Giraffe up your fluffy white bunny.
In that initial 1996 project, chat was abandoned, but as they continued to develop HercWorld, they quickly realized that they still had to worry about chat, even without a chat feature:
It was standard fare: Collect stuff, ride stuff, shoot at stuff, build stuff Oops, what was that last thing again?"kids can push around Roman columns and blocks to solve puzzles, make custom shapes, and buildings.", one of the designers said.I couldn't resist, "Umm. Doesn't that violate the Disney standard? In this chat-free world, people will push the stones around until they spell Hi! or F-U-C-K or their phone number or whatever. You've just invented Block-ChatTM. If you can put down objects, you've got chat. We learned this in Habitat and WorldsAway, where people would turn 100 Afro-Heads into a waterbed." We all laughed, but it was that kind of awkward laugh that you know means that we're all probably just wasting our time.
Decisions for family-friendly community designers:
  • Is there a way to build a chat that will not be abused by clever kids to reference forbidden content (e.g., swearing, innuendo, harassment, abuse)?
  • Can you build a chat that does not require universal moderation and pre-approval of everything that users will say?
  • Are there ways in which kids will still be to communicate with others even without an actual chat feature?
  • How much of a community do you have with no chat or extremely limited chat?
Questions and policy implications to consider:
  • Is it possible to create an online family friendly environment that will work?
    • If so how do you prevent abuse?
    • If not, how do you handle the fact that kids will get online whether they are allowed to or not?
  • How do you incentivize companies to create spaces that actually remain as child-friendly as possible?
  • If the kids will always find a way to get around limitations, does it make sense to hold the companies themselves responsible?
  • Should family friendly environments require full-time monitoring, or pre-vetting of any usage?
Resolution: Disney eventually abandoned the idea of HercWorld due to all of the issues raised. However, the interview highlights the fact that they tried again a couple of years later, with an online chat where users could only pull from a pre-selected list of sentences, but it did not have much success:
"The Disney Standard" (now a legend amongst our employees) still held. No harassment, detectable or not, and no heavy moderation overhead.Brian had an idea though: Fully pre-constructed sentences - dozens of them, easy to access. Specialize them for the activities available in the world. Vaz Douglas, our project manager working with Zoog, liked to call this feature "Chatless Chat." So, we built and launched it for them. Disney was still very tentative about the genre, so they only ran it for about six months; I doubt it was ever very popular.
The same interview notes that Disney tried once again in 2002 with a new world called ToonTown, with pulldown menus that allowed you to construct very narrowly tailored speech within the chat to try to avoid anything that violated the rules.As the story goes, Disney still had problems with this. To make sure people were only communicating with people they knew in real life, one of the restrictions in this new world was that you had to have a secret code from any user you wished to chat with. The thinking was that parents would print these out for kids who could then share them with their friends in real life, and they could link up and chat in the online world.And yet, once again, people figured out how to get around the restrictions:
Sure enough, chatters figured out a few simple protocols to pass their secret code, several variants are of this general form:User A:"Please be my friend."
User A:"Come to my house?"
User B:"Okay."
A:[Move the picture frames on your wall, or move your furniture on the floor to make the number 4.]
A:"Okay"
B:[Writes down 4 on a piece of paper and says] "Okay."
A:[Move objects to make the next letter/number in the code] "Okay"
B:[Writes] "Okay"
A:[Remove objects to represent a "space" in the code] "Okay"
[Repeat steps as needed, until]
A:"Okay"
B:[Enters secret code into Toontown software.]
B:"There, that worked. Hi! I'm Jim 15/M/CA, what's your A/S/L?"
Incredibly, there was an entire Wiki page on the Disney Online Worlds domain that included a variety of other descriptions on how to exchange your secret number within the game, even as users were not supposed to be doing so:
For example, let's say you have a secret code (1hh 5rj) which you would like to give to a toon named Bob.First, you should make clear that you want to become their SF.
You: Please be my friend!
You: (random SF chat)
You: I can't understand you
You: Let's work on that
Bob: Yes
Now, start the secret.
You: (Jump 1 time and say OK. Jump 1 time because that is the first thing in your code. Say OK to confirm that was part of your secret.)
Bob: OK (Wait for this, as this means he has written down or otherwise recorded the 1)
You: Hello! OK (Say hello because the first letter of hello is h, which is the second part of your secret.)
Bob: OK (again, wait for confirmation)
Repeat above step, as you have the same letter for the third part of your secret.
Bob: OK (by now you should know to wait for this)
You: (Jump 5 times and say OK. Jump 5 times as this is the 4th part of your secret)
Bob: OK
You: Run! OK (The 5th part of your secret is r, and "Run!" starts with r)
Bob: OK
You: Jump! OK (Say this because j is the last part of your secret.)
Bob: OK
At this point, you have successfully transmitted the code to Bob.
Most likely, Bob will understand, and within seconds, you will be Secret Friends!
So even though Disney eventually did enable a very limited chat, with strict rules to keep people safe, it still left open many challenges for early trust & safety work.Images from HabitChronicles

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The Silver Lining Of Internet Regulation: A Regulatory Impact Assessment

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Todesign better regulation for the Internet, it is important tounderstand two things: the first one is that today's Internet,despite how much it has evolved, still continues to depend on itsoriginal architecture; and, the second relates to how preserving thisdesign is important for drafting regulation that is fitfor purpose.On top of this, the Internet invites a certain way of networking -let's call it the Internet way of networking. There are manytypes of networking out there, but the Internet way ensuresinteroperability and global reach, operates on building blocks thatare agile, while its decentralized management and general purposefurther ensure its resilience and flexibility. Rationalizing this,however, can be daunting because the Internet is multifaceted, whichmakes its regulation complicated. The entire regulatory processinvolves the reconciliation of a complex mix of technology and socialrules that can be incompatible and, in some cases, irreconcilable.Policy makers, therefore, are frequently required to make toughchoices, which often manage to strike the desired balance, while,other times, they lead to a series of unintended consequences.Europe'sGeneral Data Protection Regulation (GDPR) is a good example. Thepurpose of the regulation was simple: fix privacy by providing aframework that would allow users to understand how their data isbeing used, while forcing businesses to alter the way they treat thedata of their customers. The GDPR was set to create much-neededstandardsfor privacy in the Internet and, despite continuous enforcement andcompliance challenges, this has majorly been achieved. But,when it comes to the effect it has had on the Internet, the GDPR hasposed some challenges. Almost two months after going into effect, itwas reportedthat more than 1000 websites were affected, becoming unavailable toEuropean users. And, even now, two years after, fragmentationcontinues to be an issue.So,what is there to do? How can policy makers strike a balance betweenaddressing social harms online and policies that do not harm theInternet?A starting point isto perform a regulatory impact assessment for the Internet. It atestedmethod of policy analysis, intended to assist policy makers in thedesign, implementation and monitoring of improvements to theregulatory system; it provides the methodology for producing highquality regulation, which can, in turn, allow for sustainabledevelopment, market growth and constant innovation. A regulatoryimpact assessment constitutes a tool that ensures regulation isproportional(appropriate to the size of the problem it seeks to address),targeted(focused and without causing any unintended consequences),predictable(it creates legal certainty), accountable(in terms of actions and outcomes) and, transparent(on how decisions are made).Thistype of thinking can work to the advantage of the Internet. TheInternet is an intricate system of interconnected networks thatoperates according to certain rules. It consists of a set offundamental properties that contribute to its flexible and agilecharacter, while ensuring its continuous relevance and constantability to support emerging technologies; it is self-perpetuating inthe sense that it systematically evolves while its foundation remainsintact. Understanding and preserving the idiosyncrasy of the Internetshould be key in understanding how best to approach regulation.Ingeneral, determining the context, scope and breadth of Internetregulation is important to determine whether regulation is needed andthe impact it may have. Asking questions that under normalcircumstances policy makers contemplate when seeking to make informedchoices is the first step. These include: Does the proposed new rulesolve the problem and achieve the desired outcome? Does it balanceproblem reduction with other concerns, such as costs? Does it resultin a fair distribution of the costs and benefits across segments ofsociety?Is it legitimate, credible and, trustworthy? But, there should be anadditional question: Does the regulation create any consequences forthe Internet?Activelyseeking answers to these questions is vital because regulation isgenerally risky, and risksarise from acting as well as from not acting.To appreciate this, imagine if the choices made in the early days ofthe Internet dictated a high regulatory regime in the deployment ofadvanced telecommunications and information technologies. TheInternet would, most certainly, not be able to evolve the way it hasand, equally the quality of regulation would suffer.Inthis context, the scope of regulation is important. The fundamentalproblem with much of the current Internet regulation is that it seeksto fix social problems by interfering with the underlying technologyof the Internet. Across a wide range of policymaking, we know thatsolely technical fixes rarely fix social problems. It is importantthat governments do not regulate aspects of the Internet that couldbe seen as compromising network interoperability, to solve societalproblems. Thisis a "category error" or, more elaborately, amisunderstanding of the technical design and boundaries of theInternet. Such a misunderstanding tends to confuse the salientsimilarities and differences between the problem and where thisproblem occurs; it not only fails to tackle the root of the problembut causes damage to the networks we all rely on. Take, for instance,data localization rules, which seek to force data to remain withincertain geographical boundaries. Various countries, most recentlyIndia,are tryingto forcibly localize data, and risk impeding the openness andaccessibility of the global Internet. Data will not be able to flowuninterrupted on the basis of network efficiency; rather, specialarrangements will need to be put in place in order for that data tostay within the confines of a jurisdiction. The result will beincreased barriers to entry, to the detriment of users, businessesand governments seeking to access the Internet. Ultimately, forceddata localization makes the Internet less resilient, less global,more costly, and less valuable.Thisis where a regulatory risk impact analysis can come in handy.Generally, what the introduction of a risk impact analysis does isthat it shows how policy makers can make informed choices about howsome of the regulatory claims can or cannot possibly be true. Thiswould require a shift in the behavior of policy makers from solelyfocusing on process to a more performance-oriented and result-basedapproach.Thissounds more difficult than it actually is. Jurisdictions around theworld are accustomed to performing regulatory impact assessmentswhich has successfully been integrated in many governments' policymaking process for more than 35 years. So, why can't it be partof Internet regulation?Dr. Konstantinos Komaitis is the Senior Director, Policy Strategy and Development at the Internet Society.

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Apple Opposes Trademark Application For Recipe App's Pear-Shaped Logo

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This is an apple. Some people might try to tell you that this is a banana. They might scream banana, banana, banana. Over and over and over again. They might put BANANA in all caps. You might even start to believe that this is a banana. But it's not. This is an apple.


Now, why would I subject our dear readers to one of the most insultingly patronizing, insipid advertisements ever run by a news organization, nevermind CNN? Because it does make at least one point relatively well: apples are not bananas. Logic holds, therefore, that if apples are not bananas, they are also quite unlikely to be grapes, or kiwis, or, say, pears.And, yet, it appears that Apple, tech manufacturer most notable for making rounded corners, would like to attempt to animate CNN's commercial into some flavor of real life. See, Apple has decided to oppose a recipe app's logo because it consists of the shape of a pear. Prepear (groan) must have assumed that everyone would agree that we could tell fruits apart with the following logo.
In an Instagram post, the app's developer said Apple has objected to the firm's logo, claiming that the pear used is "too close" to the Apple logo and hurts the Apple brand. The filing also cites brand confusion and dilution caused by "blurring." According to the publication, the trademark was filed in 2017 and accepted by the US Trademark Office. It was only on the last day possible for objections to be filed that Apple did so.
This is a pear. Some enormous corporations might tell you morons in a hurry would think it was an apple. They might scream apple, apple, apple. Over and over and over again. They might put their apple next to your pear and insist they look alike. You might even start to believe that someone out there could mistake the pear for the apple. But they won't. Because a pear is not a fucking apple.Also because the logos don't actually look anything alike. The color scheme is wildly different, the drawing lines totally distinct, and the style fully unique. There is literally no reason to think there is any chance of confusion here, not to mention that the companies are quite distinct in how the public perceives their product offerings.But, of course, trademark bullying doesn't work on the merits. It works on the size of the legal war chest.
"To fight this it will cost tens of thousands of dollars," Prepear claims. "The CRAZY thing is that Apple has done this to dozens of other small business fruit logo companies, and many have chosen to abandon their logo or close doors."Prepear has launched a change.org petition in an attempt to convince Apple to drop legal action as the process reaches the discovery phase, a particularly expensive part of the process. The company has only five members and says that fighting Apple on this matter could cost tens of thousands of dollars.
Yeah. And, unless Prepear gets some kind of rescue here, the most likely scenario is that it will need to change its logo. Losing all kinds of time and money in developing its branding. Or, it can risk bankrupting itself by fighting back.Trademark bullying works. Again, not because of any legitimate legal or market concern. But purely as a matter of who can fight the fight and who cannot.

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Michigan Supreme Court: Selling A $24,000 House (And Keeping The Proceeds) Over An $8.41 Debt Is Unlawful

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This seems like the sort of thing a court shouldn't need to sort out, but here we are. More specifically, here are two plaintiffs suing over Oakland County, Michigan's forfeiture policy. This isn't civil asset forfeiture -- where property is treated as guilty until proven innocent. This isn't even criminal asset forfeiture -- the seizure of property by the government following a conviction.But this form of forfeiture can be just as abusive as regular civil asset forfeiture. There's no criminal act involved -- real or conjectured. It's the result of a civil violation: the nonpayment of property taxes. And Oakland County, the plaintiffs argue, is performing unconstitutional takings to unjustly enrich itself.It's not that these sorts of things are uncommon. Tax liens are often put on property when tax payments are delinquent. It's that one of these seizures -- and subsequent auction -- was triggered by a delinquent amount that would have required the county to make change from a $10 bill. (via Volokh Conspiracy)This is from the opening of the state Supreme Court's decision [PDF], which shows just how much the county government can profit from these forfeitures.

Plaintiff Rafaeli, LLC, owed $8.41 in unpaid property taxes from 2011, which grew to $285.81 after interest, penalties, and fees. Oakland County and its treasurer, Andrew Meisner (collectively, defendants), foreclosed on Rafaeli’s property for the delinquency, sold the property at public auction for $24,500, and retained all the sale proceeds in excess of the taxes, interest, penalties, and fees.
That's right. It only took $8.41 to initiate these proceedings. Even after accounting for the additional fees, the county turned less than $300 in delinquencies into a $24,200 profit.Rafaeli, LLC isn't the only plaintiff. Another property owner, Andre Ohanessian, saw $6000 in taxes, fines, and fees turn into a $76,000 net gain for the county when it auctioned his property for $82,000 and kept everything above what it was owed.The lower court said there was nothing wrong with the government keeping thousands of dollars property owners didn't owe it.
The circuit court granted summary disposition to defendants, finding that defendants did not “take” plaintiffs’ properties because plaintiffs forfeited all interests they held in their properties when they failed to pay the taxes due on the properties. The court determined that property properly forfeited under the GPTA [General Property Tax Act] and in accordance with due process is not a “taking” barred by either the United States or Michigan Constitution. Because the GPTA properly divested plaintiffs of all interests they had in their properties, the court concluded that plaintiffs did not have a property interest in the surplus proceeds generated from the tax-foreclosure sale of their properties.
The appeals court felt the same way about the issue, resulting in this final appeal to the state's top court. The Michigan Supreme Court says this isn't proper, going all the way back to English common law that had been adopted by the new nation more than two hundred years ago.
At the same time that it was common for any surplus proceeds to be returned to the former property owner, it was also generally understood that the government could only collect those taxes actually owed and nothing more.[...]This Court recognized a similar principle in 1867, stating that “[n]o law of the land authorizes the sale of property for any amount in excess of the tax it is legally called upon to bear.” Indeed, any sale of property for unpaid taxes that was in excess of the taxes owed was often rendered voidable at the option of the landowner. Rather than selling all of a person’s land and risk the sale being voided, officers charged with selling land for unpaid taxes often only sold that portion of the land that was needed to satisfy the tax debt. That is, early in Michigan’s statehood, it was commonly understood that the government could not collect more in taxes than what was owed, nor could it sell more land than necessary to collect unpaid taxes.
That all changed with the General Property Tax Act. The current version of the GPTA unilaterally declares all ownership rights "extinguished" the moment the government begins proceedings against the property, well before the foreclosure sale occurs.This law -- as exercised in these forfeitures and auctions -- is unlawful, the Supreme Court says.
We conclude that our state’s common law recognizes a former property owner’s property right to collect the surplus proceeds that are realized from the tax-foreclosure sale of property. Having originated as far back as the Magna Carta, having ingratiated itself into English common law, and having been recognized both early in our state’s jurisprudence and as late as our decision in Dean in 1976, a property owner’s right to collect the surplus proceeds from the tax-foreclosure sale of his or her property has deep roots in Michigan common law. We also recognize this right to be “vested” such that the right is to remain free from unlawful governmental interference.
The government argued that without being able to take everything (even when less is owed), it does not have a stick of sufficient size to wield against delinquent taxpayers. Nonsense, says the state's top court. The state can still collect what is owed. What it can't do is take more than that.
We recognize that municipalities rely heavily on their citizens to timely pay real-property taxes so that local governments have a source of revenue for their operating costs. Nothing in this opinion impedes defendants’ right to hold citizens accountable for failing to pay property taxes by taking citizens’ properties in satisfaction of their tax debts. What defendants may not do under the guise of tax collection is seize property valued far in excess of the amount owed in unpaid taxes, penalties, interest, and fees and convert that surplus into a public benefit. The purpose of taxation is to assess and collect taxes owed, not appropriate property in excess of what is owed.
If the county wants its eight dollars, it can take its eight dollars. Everything above that still belongs to the original property owner. This should seem obvious, but it isn't. It took the state's top court 49 pages to arrive at this conclusion. What seems obvious to citizens is far too often deliberately unclear to government agencies. Legislation is rarely written in plain language. And it's crafted by people who have a vested interest in ensuring their employer's financial stability. The end result -- years down the road -- is the government turning a $285 foreclosure into a $24,000 surplus. The final insult is taxpayers paid for county officials to argue against the taxpayers' best interests. But, from now on, the government will have to share its takings with the people it's taking property from.

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Get Ready For Deepfakes To Be Used In Financial Scams

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Last month, scammers hijacked the Twitter accounts of former President Barack Obama and dozens of other public figures to trick victims into sending money. Thankfully, this brazen act of digital impersonation only fooled a few hundred people. But artificial intelligence (AI) is enabling new, more sophisticated forms of digital impersonation. The next big financial crime might involve deepfakes—video or audio clips that use AI to create false depictions of real people.Deepfakes have inspired dread since the term was first coined three years ago. The most widely discussed scenario is a deepfake smear of a candidate on the eve of an election. But while this fear remains hypothetical, another threat is currently emerging with little public notice. Criminals have begun to use deepfakes for fraud, blackmail, and other illicit financial schemes.This should come as no surprise. Deception has always existed in the financial world, and bad actors are adept at employing technology, from ransomware to robo-calls. So how big will this new threat become? Will deepfakes erode truth and trust across the financial system, requiring a major response by the financial industry and government? Or are they just an exotic distraction from more mundane criminal techniques, which are far more prevalent and costly?The truth lies somewhere in between. No form of digital disinformation has managed to create a true financial meltdown, and deepfakes are unlikely to be the first. But as deepfakes become more realistic and easier to produce, they offer powerful new weapons for tech-savvy criminals.Consider the most well-known type of deepfake, a “face-swap” video that transposes one person’s expressions onto someone else’s features. These can make a victim appear to say things she never said. Criminals could share a face-swap video that falsely depicts a CEO making damaging private comments—causing her company’s stock price to fall, while the criminals profit from short sales.At first blush, this scenario is not much different than the feared political deepfake: a false video spreads through social or traditional media to sway mass opinion about a public figure. But in the financial scenario, perpetrators can make money on rapid stock trades even if the video is quickly disproven. Smart criminals will target a CEO already embroiled in some other corporate crisis, who may lack the credibility to refute a clever deepfake.In addition to video, deepfake technology can create lifelike audio mimicry by cloning someone’s voice. Voice cloning is not limited to celebrities or politicians. Last year, a CEO’s cloned voice was used to defraud a British energy company out of $243,000. Financial industry contacts tell me this was not an isolated case. And it shows how deepfakes can cause damage without ever going viral. A deepfake tailored for and sent directly to one person may be the most difficult kind to thwart.AI can generate other forms of synthetic media beyond video and audio. Algorithms can synthesize photos of fictional objects and people, or write bogus text that simulates human writing. Bad actors could combine these two techniques to create authentic-seeming fake social media accounts. With AI-generated profile photos and AI-written posts, the fake accounts could pass as human and earn real followers. A large network of such accounts could be used to denigrate a company, lowering its stock price due to false perceptions of a grassroots brand backlash.These are just a few ways that deepfakes and other synthetic media can enable financial harm. My research highlights ten scenarios in total—one based in fact, plus nine hypotheticals. Remarkably, at least two of the hypotheticals already came true in the few months since I first imagined them. A Pennsylvania attorney was scammed by imposters who reportedly cloned his own son’s voice, and women in India were blackmailed with synthetic nude photos. The threats may still be small, but they are rapidly evolving.

What can be done? It would be foolish to pin hopes on a silver bullet technology that reliably detects deepfakes. Detection tools are improving, but so are deepfakes themselves. Real solutions will blend technology, institutional changes, and broad public awareness.Corporate training and controls can help inoculate workers against deepfake phishing calls. Methods of authenticating customers by their voices or faces may need to be re-examined. The financial industry already benefits from robust intelligence sharing and crisis planning for cyber threats; these could be expanded to cover deepfakes.The financial sector must also collaborate with tech platforms, law enforcement agencies, journalists, and others. Many of these groups are already working to counter political deepfakes. But they are not yet as focused on the distinctive ways that deepfakes threaten the financial system.Ultimately, efforts to counter deepfakes should be part of a broader international strategy to secure the financial system against cyber threats, such as the one the Carnegie Endowment is currently developing together with the World Economic Forum.Deepfakes are hardly the first threat of financial deception, and they are far from the biggest. But they are growing and evolving before our eyes. To stay ahead of this emerging challenge, the financial sector should start acting now.Jon Bateman is a Cyber Policy Initiative, Technology and International Affairs Fellow at the Carnegie Endowment for International Peace.

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This Week In Techdirt History: August 2nd - 8th

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Five Years AgoThis week in 2015, we wrote about how the TPP would override five years of democratic discussion about patents in New Zealand, and then got a look at the latest leak of the agreement which showed the US fighting hard to permit patent and copyright abuse, opposing provisions in support of the public domain, trying to include rules that would kill any future Aereo clones, and generally making copyright mandatory but public rights voluntary — but then, after missing a key deadline because of the failure to reach an agreement, the whole deal was put in jeopardy.Ten Years AgoThis week in 2010, Indonesia ordered a ban on all online porn while the United Arab Emirates and Saudi Arabia announced plans to ban Blackberry usage and lawyers in New Zealand were suggesting total internet bans for repeat copyright infringers. Meanwhile, the Pentagon was freaking out about Wikileaks in a way that was reminiscent in some ways of the RIAA's response to Napster, first demanding the "return" of the digital documents then taking a total head-in-the-sand approach and banning military personnel from accessing the site. And the FBI was starting its own stupid fight with a different "wiki" — telling Wikipedia that it can't display the FBI logo.Fifteen Years AgoThis week in 2005, we were watching the rise of the online counterfeit drug market and the beginning of the deflation of the ringtone market bubble. Even back then, the US was already working hard to export the worst of its copyright law to other countries, though plenty of other countries had it was sued for letting people download movies and music, but that didn't seem to put a dent in the massive investments that flowed in when the IPO hit.

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posted at: 12:00am on 09-Aug-2020
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Content Moderation Case Study: Social Media Services Respond When Recordings Of Shooting Are Uploaded By The Person Committing The Crimes (August 2015)

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Summary: The ability to instantly upload recordings and stream live video has made content moderation much more difficult. Uploads to YouTube have surpassed 500 hours of content every minute (as of May 2019), making any form of moderation inadequate.The same goes for Twitter and Facebook. Facebook's user base exceeds two billion worldwide. Over 500 million tweets are posted to Twitter every day (as of May 2020). Algorithms and human moderators are incapable of catching everything that violates terms of service.When the unthinkable happens -- as it did on August 26, 2015 -- these two social media services swiftly responded. But even their swift efforts weren't enough. The videos posted by Vester Lee Flanagan, a disgruntled former employee of CBS affiliate WDBJ in Virginia, showed him tracking down a WDBJ journalist and cameraman and shooting them both.

Both platforms removed the videos and deactivated Flanagan's accounts. Twitter's response took only minutes. But the spread of the videos had already begun, leaving moderators to try to track down duplicates before they could be seen and duplicated yet again. Many of these ended up on YouTube, where moderation efforts to contain the spread still left several reuploads intact. This was enough to instigate an FTC complaint against Google, filed by the father of the journalist killed by Flanagan. Google responded by stating it was still removing every copy of the videos it could locate, using a combination of AI and human moderation.Users of Facebook and Twitter raised a novel complaint in the wake of the shooting, demanding "autoplay" be opt in -- rather than the default setting -- to prevent them from inadvertently viewing disturbing content.Moderating content as it is created continues to pose challenges for Facebook, Twitter, and YouTube -- all of which allow live-streaming.Decisions to be made by social media platforms:
  • What efforts are being put in place to better handle moderation of streaming content?
  • What efforts -- AI or otherwise -- are being deployed to potentially prevent the streaming of criminal acts? Which ones should we adopt?
  • Once notified of objectionable content, how quickly should we respond?
  • Are there different types of content that require different procedures for responding rapidly?
  • What is the internal process for making moderation decisions on breaking news over streaming?
  • While the benefits of auto-playing content are clear for social media platforms, is making this the default option a responsible decision -- not just for potentially-objectionable content but for users who may be using limited mobile data?
Questions and policy implications to consider:
  • Given increasing Congressional pressure to moderate content (and similar pressure from other governments around the world), are platforms willing to "over-block" content to demonstrate their compliance with these competing demands? If so, will users seek out other services if their content is mistakenly blocked or deleted?
  • If objectionable content is the source for additional news reporting or is of public interest (like depictions of violence against protesters, etc.), do these concerns override moderation decisions based on terms of service agreements?
  • Does the immediate removal of criminal evidence from public view hamper criminal investigations? 
  • Are all criminal acts of violence considered violations of content guidelines? What if the crime is being committed by government agents or law enforcement officers? What if the video is of a criminal act being performed by someone other than the person filming it? 
Resolution: All three platforms have made efforts to engage in faster, more accurate moderation of content. Live-streaming presents new challenges for all three platforms, which are being met with varying degrees of success. These three platforms are dealing with millions of uploads every day, ensuring objectionable content will still slip through and be seen by hundreds, if not thousands, of users before it can be targeted and taken down.Content like this is a clear violation of terms of service agreements, making removal -- once notified and located -- straightforward. But being able to "see" it before dozens of users do remains a challenge.

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posted at: 12:00am on 08-Aug-2020
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Console Exclusive Games Have Given Way To Console Exclusive Game Characters

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Editor's Note: Originally, this article was set to run before the article of Crystal Dynamics defending this decision... but somehow that didn't happen. You can read that article here if you like, or if you haven't already, you can read this one first, and recognize that time has no meaning any more, so the linear publishing of articles is no longer necessary... or maybe Mike just screwed things up. One of those.For anything that isn't first-party content, I will never understand why games sell as console exclusives. Maybe there is math out there that makes having a game publisher limit itself to one sliver of the potential market make sense, but somehow I have a hard time believing it. That's all the more the case given that the recent trend has been less exclusivity, rather than more. While the PC market is now seeing platform exclusivity emerge, something which makes even less sense than with consoles, game franchises that were once jealously guarded exclusives, such as MLB The Show, are announcing opening up to more systems, including PCs.But it seems the instinct to carve out something exclusive for your system is hard to shake. Or, that's at least the case for Sony, which has managed to retain exclusive rights for the character Spider-Man in the upcoming Marvel's Avengers game.

In a move already being roundly criticized on social media, Crystal Dynamics’ Jeff Adams revealed today that Spider-Man will be available as a free update for PlayStation players of this September’s Marvel’s Avengers game in “early 2021.” PC and Xbox One players, apparently, won’t get to play as him.Adams announced the move in a PlayStation blog post, offering no insight as to why PC and Xbox players would miss out and outlining no exclusive content for those games. It doesn’t appear to be a timed exclusive. When Kotaku reached out to Square Enix, the game’s publisher, for comment, about that and the rest of the deal, we were directed to Adams’ blog post—which didn’t answer any of our questions.
Now, there is some complicated licensing potentially at issue here. While Disney owns the rights to The Avengers generally, Sony has retained many of the publishing rights for the Spider-Man character. In 2018, the excellent Spider-Man video game came out as a PlayStation and many assumed that Sony had the sole game publishing rights to the character. But that doesn't seem to be true, no matter what noises Sony's made in the past. Instead, these rights still seem to reside with Marvel, which has tended to lean towards the PlayStation. But, as the Kotaku article points out, it's not as though Spider-Man has never made an appearance on other systems. He's been in Nintendo games, along with other games, such as Marvel's Lego series of games.The idea behind these exclusive deals, be it for entire game franchises or for characters like Spider-Man, is to try to engender some kind of loyalty among the fan-base by having this exclusive content. And perhaps at one point that worked. But these days, the only thing Sony seems to be getting for its trouble is backlash. And when Forbes is out here saying that this character exclusive isn't just bad for the other platforms the game will appear on, but bad for PlayStation players as well, then maybe it's time to rethink this whole thing.
The problem with exclusives is that they not only hurt the obvious suspects, the platforms that are not getting X or Y exclusive, which in this case is Xbox and PC players, but they even hurt the platform that’s supposed to benefit from them.With Avengers, it’s easy to see how this could play out in a similar fashion. While the main storyline of Avengers seems to be playing out around six launch heroes, Black Widow, Hulk, Thor, Captain America, Iron Man and Ms. Marvel, the entire point of the game is that it will be an ongoing story that unfolds in time. It’s easy to see how a character like Spider-Man, a prominent Avenger in both the MCU and the comics, could have been integrated into a major storyline at some point in the future as the game expands. But the fact that he’s exclusive to PlayStation essentially insures that he cannot be a major player in the story, relegated to some sort of introductory side mission, and that’s it, or as a tag-along to other missions without a major active role.
So why do this at all? Because old habits are hard to shake, probably. And, frankly, Sony's gonna Sony. But that doesn't make any of this less dumb, less bad for the gaming community, or less bad for even those who will get this exclusive character.

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posted at: 12:00am on 08-Aug-2020
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Crystal Dynamics Explains Spider-Man PS4 Exclusivity By Saying A Bunch Of... Words, I Guess?

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We had just been talking about the upcoming Marvel's Avengers multi-platform game and its very strange plan to make Spider-Man a PlayStation exclusive character. In that post, I mentioned that I don't think these sorts of exclusive deals, be they for games or characters, make any real sense. Others quoted in the post have actually argued that exclusive characters specifically hurt everyone, including owners of the exclusive platform, since this can only serve to limit the subject of exclusion within the game. But when it came to why this specific deal had been struck, we were left with mere speculation. Was it to build on some kind of PlayStation loyalty? Was it to try to drive more PlayStation purchases? Was it some kind of Sony licensing thing?Well, we have now gotten from the head of the publishing studio an...I don't know... answer? That seems to be what was attempted, at least, but I'll let you all see for yourselves, if you can make out what the actual fuck is going on here. The co-leader of Crystal Dynamics gave an interview to ComicBook and touched on the subject.

So the beauty of Spider-Man, and what Spider-Man represents as a character, and as a world is...again, it comes back to the relationship with PlayStation and Marvel. We happened to be...once you can execute and deliver, when it comes down to choices of where and what Spider-Man can be, that’s a relationship question that PlayStation absolutely has the rights to, that as you guys know, with Sony’s ownership there, and Marvel with Sony saying, ‘Hey, this is something we can do. This is something we can do on this platform.’
If anything was deserving of a Jonathan Swan meme, this must surely be it. I have read the above paragraph no less than ten times and I have no idea what the hell it is saying. There seems to be some nod to Sony's publishing rights for video games and Spider-Man, but, as we've said previously, those rights don't seem to actually exist. Then there's some talk about how special Spider-Man is, alongside "Hey, this is something we can do."...okay. It doesn't get any better as it goes on.
And so, what we do as creators is say, ‘This is an opportunity that we can make something unique, and fun, and awesome that we all...you just talked about Black Widow, and to be able to have that experience. So we love the idea of being able to bring this character to the PlayStation players.
Blink, blink. But why exclusively? Why wouldn't you love to bring that character to Xbox owners? PC gamers? Nothing in this dump truck of words strung together seems to have anything to do with the exclusivity deal this man's studio struck with Sony. What the hell?
But I really do think people will look at this and say, ‘Yeah, okay, we get that, we can understand the business behind that’, but in general, we’re making this game for everybody.
They sure as shit don't. The response to this deal has been nearly universally negative. Which makes all the sense in the world. Owners of other platforms don't get to play the character. PlayStation owners might be glad they do, but does anyone really think they're also cheering on owners of other systems not getting to play Spider-Man? Why in the world would they even care?Whatever else, the studio should try harder to explain its decisions rather than simply trot out an ill-prepared studio head to weave a tangled web of words.

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posted at: 12:00am on 07-Aug-2020
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Content Moderation At Scale Is Impossible: Twitter Locks Accounts For Fact Checking The President

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Another day in which we get to explain how content moderation is impossible to do well at scale. On Wednesday, Twitter (and Facebook) chose to lock the Trump campaign's account after it aired a dangerous and misleading clip from Fox News' "Fox & Friends" in which the President falsely claimed that children are "almost immune" from COVID-19.People can debate whether it was appropriate or not for Twitter (and Facebook) to make those content moderation decisions, but it seems perfectly defensible. Claiming that kids are "almost immune" is insane and dangerous. However, where things get sketchy on the content moderation front is that Twitter also then ended up freezing the accounts of journalists and activists who fact checked that "Fox & Friends" nonsense:

Or in the case of Bobby Lewis from Media Matters, Twitter suspended his account for simply mocking part of the Fox & Friends clip, noting that when a host asked the President to "say something to heal the racial divisions in America" Trump couldn't do it and could only brag about himself:
Now, tons of people are reasonably pointing out that this is ridiculous, and arguing that Twitter is "bad" at content moderation. But, again, this all comes just a few weeks (has it been a few weeks? time has no meaning) since Facebook, Twitter, and YouTube all received tremendous criticism from people for not being fast enough in pulling down another nonsense video -- one that Breitbart livestreamed of "doctors" spewing under nonsense about COVID-19 in front of the Supreme Court. Indeed, at least week's Congressional anti-trust hearing, Rep. David Cicilline lit into Facebook for leaving that video up for five hours, allowing it to get 20 million views (meanwhile, multiple Republican representatives yelled at Zuckerberg for taking down the video).So, if you have some politicians screaming about how any clip of disinformation about COVID-19 must be taken down, it's no surprise that social media platforms are going to rush to take that content down -- and the easiest way to do that is to take down any of the clips, even the clips that are people debunking, criticizing, or mocking the speech. Would it be nice if content moderation systems could figure out which one is which? Yes, absolutely it would. But doing so would mean taking extra time to understand context (which isn't always so easy to understand), and in the process also allowing the videos that some say are dangerous by themselves to remain online.In fact, if Twitter said to keep up the videos that are people fact checking or criticizing the videos, you create a new dilemma -- in that those who want the dangerous nonsense to spread can, themselves, retweet the videos criticizing the content, and add their own commentary in support of the video. And then what should Twitter do?Part of the issue here is that there are always these difficult trade-offs in making these decisions, and even if you think it's an easy call, the reality is that it's going to be more complex than you think.

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posted at: 12:00am on 07-Aug-2020
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Law Firm Southtown Moxie Responds Hilariously To Stupid Cease And Desist Letter

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There are many ways to respond to a cease and desist notice over trademark rights. The most common response is probably fear-based capitulation. After all, trademark bullying works for a reason, and that reason is that large companies have access to large legal war chests while smaller companies usually just run away from their own rights. Another response is the aggressive defenses against the bullying. And, finally, every once in a while you get a response so snarky in tone that it probably registers on the richter scale, somehow.The story of how a law firm called Southtown Moxie responded to a C&D from a (maybe?) financial services firm called Financial Moxie is of the snark variety. But first, some background.

Financial Moxie is a financial advisory catering to working moms. Or at least I think it is… the website also lists multiple fitness instructors on staff so I don’t know what that’s all about. The “moxie” term aligns with the phenomenon of “Moxie Tribes” which seem to be groups for working moms to talk about how awesome they are. It’s basically Goop with fewer vagina candles. Meanwhile “Southtown Moxie” is a law firm in Tennessee and North Carolina.After receiving a cease and desist letter demanding that Southtown Moxie withdraw its trademark application, Kevin Christoper of Rockridge Venture Law (Southtown Moxie’s sibling firm) sat down with a beer to pen a response.
Which is how we get to the response. The full letter is embedded below, but you damn well know you're in for a treat when the response to a C&D notice begins with:
Dear Ms. Harper,THANK YOU SO MUCH for your C&D letter and notice of opposition to our trademark application! This case presents a wonderful training opportunity for our noob associates. (And, lawyer-to-lawyer I must add it’s an honor to correspond with you. You are obviously a sensational salesperson-attorney to convince your client to pay you for challenging another law firm’s trademark application—I’m truly in awe and look forward to learning a thing or two from you. When I think of it, your client is paying you, and also giving us good trademark cannon fodder for our noobs, so it’s a win-win all around.)
And we're off! The letter then goes into noting all of the things Ms. Harper's client could buy instead of wasting everyone's time on a losing potential lawsuit. Examples include: a speedboat, glamorous clothing and jewelry, or hiring a social media influencer. The most important part of all of this, I have to stress, is that each example comes with an embedded photo of a barbie doll pantomiming these suggestions.With that throat-clearing complete, the response goes on to note in creative terms that financial and legal services are not the same thing, nor in the same markets, and therefore any trademark concern evaporates.
But I wouldn’t be drinking a Purple Haze in my skivvies if I didn’t point out the irony that your client has hired you to represent her BECAUSE SHE IS NOT LICENSED TO PRACTICE LAW. Based on your letter, she claims that our mark, limited to the provision of legal services, infringes upon her financial advisory, personal coaching, and tribal businesses and causes her great harm. Basically she thinks someone looking for “Moxie Tribe” fellowship is going to get sucked up into our vortex of intellectual property services.
The notice then goes on to note that Financial Moxie has a disclaimer listed on its site that all communication is intended for select states in America, none of which include North Carolina or Tennessee, where Southtown Moxie is located. So, different industries and different geographic locations. None of this adds up to a valid trademark dispute and it seems likely that Southtown Moxie is going to win in front of the Trademark Trial and Appeal Board.But, hey, we should at least thank Financial Moxie and its legal team for setting things up for this gem of a C&D response.

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posted at: 12:00am on 06-Aug-2020
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Content Moderation Case Study: Facebook Nudity Filter Blocks Historical Content And News Reports About The Error (June 2020)

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Summary: Though social media networks take a wide variety of evolving approaches to their content policies, most have long maintained relatively broad bans on nudity and sexual content, and have heavily employed automated takedown systems to enforce these bans. Many controversies have arisen from this, leading some networks to adopt exceptions in recent years: Facebook now allows images of breastfeeding, child-birth, post-mastectomy scars, and post-gender-reassignment surgery photos, while Facebook-owned Instagram is still developing its exception for nudity in artistic works. However, even with exceptions in place, the heavy reliance on imperfect automated filters can obstruct political and social conversations, and block the sharing of relevant news reports.

One such instance occurred on June 11, 2020 following controversial comments by Australian Prime Minister Scott Morrison, who stated in a radio interview that there was no slavery in Australia. This sparked widespread condemnation and rebuttals from both the public and the press, pointing to the long history of enslavement of Australian Aboriginals and Pacific Islanders in the country. One Australian Facebook user posted a late 19th century photo from the state library of Western Australia, depicting Aboriginal men chained together by their necks, along with a statement:
Kidnapped, ripped from the arms of their loved ones and forced into back-breaking labour: The brutal reality of life as a Kanaka worker - but Scott Morrison claims 'there was no slavery in Australia'
Facebook removed the post and image for violation of their policy against nudity, although no genitals are visible, and restricted the user's account. The Guardian Australia contacted Facebook to determine if this decision was made in error and, the following day, Facebook restored the post and apologized to the user, explaining that it was an erroneous takedown caused by a false positive in the automated nudity filter. However, at the same time, Facebook continued to block posts that included The Guardian's news story about the incident, which featured the same photo, and placed 30-day suspensions on some users who attempted to share it. Facebook's community standards report shows that in the first three months of 2020, 39.5-million pieces of content were removed for nudity or sexual activity, over 99% of those takedowns were automated, 2.5-million appeals were filed, and 613,000 of the takedowns were reversed.Decisions to be made by Facebook:
  • Can nudity filters be improved to result in fewer false-positives, and/or is more human review required?
  • For appeals of automated takedowns, what is an adequate review and response time?
  • Should automated nudity filters be applied to the sharing of content from major journalistic sources such as The Guardian?
  • Should questions about content takedowns from major news organizations be prioritized over those from regular users?
  • Should 30-day suspensions and similar account restrictions be manually reviewed only if the user files an appeal?
Questions and policy implications to consider:
  • Should automated filter systems be able to trigger account suspensions and restrictions without human review?
  • Should content that has been restored in one instance be exempted from takedown, or flagged for automatic review, when it is shared again in future in different contexts?
  • How quickly can erroneous takedowns be reviewed and reversed, and is this sufficient when dealing with current, rapidly-developing political conversations?
  • Should nudity policies include exemptions for historical material, even when such material does include visible genitals, such as occurred in a related 2016 controversy over a Vietnam War photo?
    • Should these policies take into account the source of the content?
    • Should these policies take into account the associated messaging?
Resolution: Facebook's restoration of the original post was undermined by its simultaneous blocking of The Guardian's news reporting on the issue. After receiving dozens of reports from its readers that they were blocked from sharing the article and in some cases suspended for trying, The Guardian reached out to Facebook again and, by Monday, June 15, 2020, users were able to share the article without restriction. The difference in response times between the original incident and the blocking of posts is possibly attributable to the fact that the latter came to the fore on a weekend, but this meant that critical reporting on an unfolding political issue was blocked for several days while the subject was being widely discussed online.Photo Credit (for first photo):
State Library of Western Australia
[Screenshot is taken directly from a Twitter embed]

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posted at: 12:00am on 06-Aug-2020
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Senators Graham And Blumenthal Can't Even 'Earn' The EARN IT Act: Looking To Sneak Vote Through Without Debate

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Senator Lindsey Graham very badly wants to push the extremely dangerous EARN IT Act across the finish line. He's up for re-election this fall, and wants to burnish his "I took on big tech" creds, and sees EARN IT as his path to grandstanding glory. Never mind the damage it will do to basically every one. While the bill was radically changed via his manager's amendment last month, it's still an utter disaster that puts basically everything we hold dear about the internet at risk. It will allow for some attacks on encryption and (somewhat bizarrely) will push other services to more fully encrypt. For those that don't do that, there will still be new limitations on Section 230 protections and, very dangerously, it will create strong incentives for internet companies to collect more personal information about every one of their users to make sure they're complying with the law.It's a weird way to "attack" the power of big tech by forcing them to collect and store more of your private info. But, hey, it's not about what's actually in the bill. It's about whatever bullshit narrative Graham and others know the press will say is in the bill.Either way, we've heard that Graham and his bi-partisan supporter for EARN IT, Senator Richard Blumenthal, are looking to rush EARN IT through with no debate, via a process known as hotlining. Basically, it's a way to try to get around any floor debate, by asking every Senator's office (by email, apparently!) if they would object to a call for unanimous consent. If no Senator objects, then they basically know they can skip debate and get the bill approved. If Senators object, then (behind the scenes) others can start to lean on (or horse trade) with the Senators to get the objections to go away without it all having to happen on the floor of the Senate. In other words, Graham and Blumenthal are recognizing that they probably can't "earn" the EARN IT Act if it has to go through the official process to have it debated and voted on on the floor, and instead are looking to sneak it through when no one's looking.While Senator Wyden (once again) has said he'll do whatever he can to to block this, it would help if other Senators would stand up as well. Here's what Wyden had to say about it:

The EARN IT Act will not protect children. It will not stop the spread of child sexual abuse material, nor target the monsters who produce and share it, and it will not help the victims of these evil crimes. What it will do is threaten the free speech, privacy, and security of every single American. This is because, at its core, the amended EARN IT Act magnifies the failures of the Stop Enabling Sex Traffickers Act--SESTA--and its House companion, the Fight Online Sex Trafficking Act--FOSTA. Experts believe that SESTA/FOSTA has done nothing to help victims or stop sex trafficking, while creating collateral damage for marginalized communities and the speech of all Americans. A lawsuit challenging the constitutionality of FOSTA on First Amendment grounds is proceeding through the courts, and there is bicameral Federal legislation to study the widespread negative impacts of the bill on marginalized groups.Yet, the authors of the EARN IT Act decided to take this kind of carveout and expand it further to State civil and criminal statutes. By allowing any individual State to set laws for internet content, this bill would create massive uncertainty, both for strong encryption and constitutionally protected speech online. What is worse, the flood of State laws that could potentially arise under the EARN IT Act raises strong Fourth Amendment concerns, meaning that any CSAM evidence collected could be rendered inadmissible in court and accused CSAM offenders could get off scot-free. This is not a risk that I am willing to take.Let me be clear: The proliferation of these heinous crimes against children is a serious problem. However, for these reasons and more, the EARN IT Act is not the solution. Moreover, it ignores what Congress can and should be doing to combat this heinous crime. The U.S. has a number of important evidence-based programs in existence that are proven to keep kids safe, and they are in desperate need of funding to do their good work. Yet the EARN IT Act doesn't include a single dollar of funding for these important programs. It is time for the U.S. Government to spend the funds necessary to save children's lives now.
While a Wyden hold would block any attempt to get unanimous consent via the hotlining process, it would help quite a lot if other Senators were willing to speak up and stand with him as well. If it's just Wyden, then he'll face tremendous pressure to remove the hold. If more Senators join Wyden in saying this isn't okay, then Graham and Blumenthal will realize they have a bigger challenge in front of them.Again, if you haven't been following this debate closely, everything that Wyden says above is accurate. EARN IT is an attack on both free speech and privacy (a twofer) without doing anything to actually deal with the problem of child sexual abuse material online. That is very much a law enforcement issue, and it's one which Congress has failed to provide the funds to law enforcement that it promised on this issue, and (even worse) the DOJ has simply ignored its requirement mandates to deal with this issue as required by Congress. The DOJ seems more focused on attacking tech companies and blaming them for its own failure to do its job.The EARN IT Act is an incredibly dangerous piece of legislation, but it's also a complicated one -- one that many people don't understand. But Senators see something that says "protect the children" and they immediately think "well, of course we support that." But this bill doesn't protect children. It attacks free speech and privacy online in very insidious ways. Please call your Senators and ask them not to let this through.

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posted at: 12:00am on 05-Aug-2020
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Taylor Swift Changes Artwork For New Album, Merch After Online Retailer Complains Of Similarities

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If ever there were an artist who seems to straddle the line of aggressive intellectual property enforcement, that artist must surely be Taylor Swift. While Swift has herself been subject to silly copyright lawsuits, she has also been quite aggressive and threatening on matters of intellectual property and defamation when it comes to attacking journalists and even her own fans over trademark rights. So, Taylor Swift is, among other things, both the perpetrator and the victim of expansive permission culture.You would think someone this steeped in these concerns would be quite cautious about stepping on the rights of others. And, yet, it appears that some of the iconography for Swift's forthcoming album and merchandise was fairly callous about those rights for others.

Amira Rasool, founder of the online retailer The Folklore, accused the pop star last week of selling merchandise that ripped off the logo of her company, which sells apparel, accessories and other products by designers in Africa and the diaspora.Rasool shared photos on Twitter and Instagram that showed cardigans and sweatshirts with the words "The Folklore Album" for sale on Swift's website.
Are those logos confusingly similar? Given the shared brand name... yeah, probably! While not exactly the same, particularly given the font and style choices, the overall placement of the words in each logo is similar enough that I can see a valid trademark issue here.Now, let's be super clear about a couple of things. First, Swift has changed the logo after Rasool's complaint. She also reached out to Rasool and commended her organization and appears to have made a contribution to it as well. Rasool herself has responded appreciatively and has said the matter is closed. A monster Taylor Swift is not.But that isn't really the point. In many instances, this is how trademark infringement issues happen. I have seen nothing to suggest that Swift's team knew of Rasool's organization and blatantly ripped off her logo. Maybe they did, maybe they didn't. But it's not tough to picture how this could have happened relatively innocently. And that immediately brings to mind the following question: would Swift have offered the same grace to the targets of her own enforcement as did Rasool? Given how aggressive she's been in trying to trademark all the things and then going after her own fans as a result, it seems doubtful.But maybe this is the learning opportunity she needs. I won't hold my breath.

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posted at: 12:00am on 05-Aug-2020
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Five Years Later, Team Solves Puzzles In Women In Tech Book

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When we released our CIA: Collect It All card game based on a declassified CIA training card game, we had included a fun little Easter egg in there, with help from Jon Callas, who helped create modern day encryption. So far, I believe a grand total of... two people have found it, solved it, and told me about it (though it's possible many more have done so). That was neat, but we had nothing to give them beyond the satisfaction of having solved the puzzle. It seems that others have gone much, much farther with this idea.Five years ago, Tarah Wheeler put together a big Kickstarter for the book Women in Tech, with advice/ideas/thoughts/stories from a variety of successful women in the tech field.Five years after publishing that book, Wheeler has now revealed that she flooded the book with hidden puzzles, and while releasing the book itself was a massively difficult project, the fact that a bunch of people found and worked on the puzzles was part of what made it all worth it:

I hated this fucking book. I hated it while I was writing it. I didn't think that would happen. But I did....And yet...There was a secret in that book. It's a secret that I've kept for half a decade, and while I've loved the wonderful messages and notes of support from people who've benefitted from this work, the puzzles I hid in it are the only unmitigated, unsoured, pure joy I've experienced in creating this Frankenstein's Creature of a book.I filled it with puzzles. I plastered it with puzzles. I was filled with anticipation at the thought that someday, people would see it.Then some people noticed the codes and puzzles. A few people tried to solve them. Teams formed on Reddit and Twitter and Discord. And one small crew of four people finally journeyed to the end of the epic. And that's how they won the secret buried treasure of pounds of precious silver.
The link above has some examples of the hidden puzzles, but here's just one:
Tarah then worked with Jon Callas (a familiar name!) to create amazing cipher wheels out of silver. You can see the wheels demonstrated in a video that Tarah put up recently:
Even better, she put up details on how to make your own cipher wheels, including 3D printing files to make your own as well at Github. This is a very cool project that, along with everything else that's fun about it, is a neat way to demonstrate how encryption works and why it's so important.

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posted at: 12:00am on 04-Aug-2020
path: /Policy | permalink | edit (requires password)

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Days After FCC Commissioner Mike O'Rielly Suggests Trump's Section 230 Exec Order Is Unconstitutional... His Renomination To The FCC Is Withdrawn

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Earlier today we wrote about how Ajit Pai was pushing ahead with the Commerce Department's silly FCC petition regarding a re-interpretation of Section 230 of the Communications Decency Act. We noted that it wouldn't actually be that hard to just say that the whole thing is unconstitutional and outside of the FCC's authority (which it is). Some people have pushed back on us saying that if Pai didn't do this, Trump would fire him and promote some Trump stan to push through whatever unconstitutional nonsense is wanted.Well, now at least there's some evidence to suggest that Trump also views the FCC -- a supposedly "independent" agency -- as his personal speech police. Of the Republican Commissioners, Brendan Carr has been quite vocal in his Trump boot-licking, especially with regards to Section 230. He's been almost gleeful in his pronouncements about how evil "big tech" is for "censoring conservatives," and how much he wants to chip away at Section 230. Pai has been pretty much silent on the issue until the announcement today. But the other Republican Commissioner, Mike O'Rielly, has at least suggested that he recognizes the Trump executive order is garbage. Six weeks ago he said he hadn't done his homework yet, but suggested he didn't think Congress had given the FCC any authority on this matter (he's right).Just last week, during a speech, he made it pretty clear where he stood on this issue. While first saying he wasn't necessarily referencing the Trump executive order, he said the following:

Today, I would like to address a particularly ominous development in this space. To be clear, thefollowing critique is not in any way directed toward President Trump or those in the White House, whoare fully within their rights to call for the review of any federal statute's application, the result of whichwould be subject to applicable statutory and constitutional guardrails. Rather, I am very troubled bycertain opportunists elsewhere who claim to be the First Amendment's biggest heroes but only come toits defense when convenient and constantly shift its meaning to fit their current political objectives. Theinconsistencies and contradictions presented by such false prophets would make James Madison's headspin, were he alive to witness them.The First Amendment protects us from limits on speech imposed by the governmentnot privateactorsand we should all reject demands, in the name of the First Amendment, for private actors tocurate or publish speech in a certain way. Like it or not, the First Amendment's protections apply tocorporate entities, especially when they engage in editorial decision making. I shudder to think of a dayin which the Fairness Doctrine could be reincarnated for the Internet, especially at the ironic behest ofso-called free speech defenders. It is time to stop allowing purveyors of First Amendment gibberish toclaim they support more speech, when their actions make clear that they would actually curtail itthrough government action. These individuals demean and denigrate the values of our Constitution andmust be held accountable for their doublespeak and dishonesty. This institution and its members havelong been unwavering in defending the First Amendment, and it is the duty of each of us to continue touphold this precious protection.
To be clear: I agree 100% with that statement, and am glad that O'Rielly was willing to stand up on principle to defend it.And then, today, it was announced that the White House is pulling his renomination to the FCC. In other words, the White House is being a petty asshole, again, and firing anyone for not being in lockstep with the President's ridiculous unconstitutional whims.There was some talk last week about how Senator James Inhofe's office was blocking O'Rielly's renomination over a different issue: the approval of L-Band spectrum for use by Ligado (formerly LightSquared). A variety of government organizations had opposed the use of this spectrum, fearing that it might interfere with GPS systems. However, the Ligado deal was unanimously approved by all five commissioners, so it's difficult to see why O'Rielly would be singled out, other than his nomination was up. The Inhofe/Ligado thing feels like a smokescreen for the 230 issue.The question now is whether or not O'Rielly will serve out his term, or if he'll leave now that his renomination is not being considered. One hopes that he'll at least stick it out long enough to vote down the Petition on 230. Even if he did leave, it's unclear if a new Commissioner would get through any confirmation process prior to the election. Either way, at least it's nice to see one Republican Commissioner willing to stand up to Trump. We've criticized O'Rielly plenty of times in the past, but at least he's not taking the path of Carr (and even Pai) in dealing with this nonsense.

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posted at: 12:00am on 04-Aug-2020
path: /Policy | permalink | edit (requires password)

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This Week In Techdirt History: July 26th - August 1st

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Five Years AgoThis week in 2014, we saw a judge slam a sheriff for an attack on Backpage that raised serious first amendment questions, and a student succeed after an eight-year legal battle against a university over being expelled for speech. On the other side of the free speech coin, we saw the cops shut down a hologram concert because they didn't like a rapper's lyrics, James Woods sue a random Twitter user for $10-million, and of course Donald Trump continue his lawsuit against Univision (and that post contains our first mention of a certain lawyer, with the now-entertaining phrasing of "apparently, it's some guy named Michael Cohen, who isn't just out of his depth on stuff, but he appears to be actively making things worse.")We also saw a huge bombshell in the lawsuit over the copyright status of Happy Birthday, with new evidence showing the song is in the public domain that Warner Music quickly tried to muddy the waters around.Ten Years AgoThis week in 2010, we wondered why the press was still blindly believing entertainment industry "studies", and how there were new copyrights being claimed on work by an artist who died 70 years ago. Copyright was interfering with technology both old-old and new-old, disrupting the preservation of decaying player piano rolls as well as obsolete video games. And the new round of DMCA anti-circumvention exemptions surprised everyone by including phone jailbreaking, though it left out plenty of good suggestions too.Fifteen Years AgoThis week in 2005, the anti-open-WiFi brigade was stirring up FUD about cantennas and the press was taking the bait. ISP Telus learned all about the Streisand Effect by blocking its customers from reaching websites supporting its employees in their union battle against the company, while offering weak excuses, and we were not exactly shocked to learn that Qualcomm founder Irwin Jacobs doesn't like muni-WiFi. Canada put the final nail in the idea of an iPod tax, one UK court showed it wasn't fooled by ridiculous claims of losses to software piracy, and yet another study showed that file sharers are the music industry's best customers.

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posted at: 12:00am on 02-Aug-2020
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DOJ And Florida Officials Announce Arrests Relating To Twitter Hack

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This seemed fairly inevitable, after it became quite clear that the Twitter hack from a few weeks ago was done by teen hackers who didn't seem to do much to cover their tracks, but officials in Florida announced the arrest of a Florida teenager for participating in the hack, followed by the DOJ announcing two others as well -- a 19 year old in the UK and a 22 year old in Florida.As for why the first announced was separate and done by Florida officials, it appears that it involved a 17-year-old, and apparently it was easier to charge him as an adult under state laws, rather than under federal law, as with the other two.

Hillsborough State Attorney Andrew Warren filed 30 felony charges against the teen this week for scamming people across America in connection with the Twitter hack that happened on July 15. The charges he's facing include one count of organized fraud, 17 counts of communications fraud, one count of fraudulent use of personal information with over $100,000 or 30 or more victims, 10 counts of fraudulent use of personal information and one count of access to computer or electronic device without authority.Hillsborough County Jail records show Clark was booked into jail shortly after 6:30 a.m. Friday.Warren's office says the scheme to defraud stole the identities of prominent people and posted messages in their names directing victims to send Bitcoin to accounts that were associated with the Tampa teen. According to the state attorney, the scheme reaped more than $100,000 in Bitcoin in just one day.
Once again, it's looking like we got incredibly lucky -- that it was just some young hackers mostly messing around, rather than anyone with serious ill-intent and the ability to plan something bigger. It now appears that Twitter's internal security controls were kind of a mess. Over 1,000 employees had access to the control panel that would allow people to make the changes that enabled the hack -- and even that some staffers and contractors somehow made it a game to abuse their powers to spy on users.Once again, it seems that Twitter needs to fix up a lot of things on the security side, including figuring out how to do end-to-end encryption for direct messages.

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posted at: 12:00am on 01-Aug-2020
path: /Policy | permalink | edit (requires password)

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Content Moderation Case Studies: Misleading Information From Official Sources (2020)

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Summary: With news breaking so rapidly, it's possible that even major newspapers or official sources may get information wrong. Social media sites, like Twitter, need to determine how to deal with news tweets that later turn out to be misleading -- even when coming from major news organizations, citing official government organizations.With widespread protests around the United States calling attention to police brutality and police activity disproportionately targeting the black community, the NY Post tweeted a link to an article discussing an internal communication by the NY Police Department (NYPD) warning of concrete disguised as ice cream cups that were supposedly found at some of the protests, with the clear implication being that this was a way to disguise items that could be used for violence or property destruction.

The article was criticized widely by people who pointed out that the items in fact appear to be part of a standard process for testing concrete mixtures, with the details of each mixture written on the side of the containers. Since these were found at a construction site, it seems likely that the NYPD's alert was, at best, misleading.In response to continuing criticism, the NY Post made a very minor edit to the story, noting only that the markings on the cups make them resemble concrete sample tests commonly used on construction sites. However, the story and its title remained unchanged and the NY Post retweeted it a day later -- leading some to question why the NY Post was publishing misinformation, even if it was accurately reporting the content of an internal police memo.Questions for Twitter:
  • Should it flag potentially misleading tweets when published in major media publications, such as the NY Post?
  • Should it matter if the information originated at an official government source, such as the NYPD?
  • How much investigation should be done to determine the accuracy (or not) of the internal police report? How should the NY Post's framing of the story reflect this investigation?
  • Does it matter that the NY Post retweeted the story a day after the details were credibly called into question?
Questions and policy implications to consider:
  • Do different publications require different standards of review?
  • Does it matter if underlying information is coming from a governmental organization?
  • If a media report accurately reports on the content of an underlying report that is erroneous or misleading, does that make the report itself misleading?
  • How much does wider context (protests, accusations of violence, etc.) need to be considered when making determinations regarding moderation?
Resolution: To date, Twitter has left the tweets up, and the NY Post article remains online with only the very minor edit that was added a few hours after the article received widespread criticism. The NY Post tweets have not received any fact check or other moderation to date. There are, however, many replies and quote tweets calling out what people feel to be misleading aspects of the story (as well as plenty from people taking the content of the story at face value, and worrying about how the items might be used for violence).

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