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October 2020
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Content Moderation Case Studies: Using AI To Detect Problematic Edits On Wikipedia (2015)

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Summary: Wikipedia is well known as an online encyclopedia that anyone can edit. This has enabled a massive corpus of knowledge to be created, that has achieved high marks for accuracy, while also recognizing that at any one moment some content may not be accurate, as anyone may have entered in recent changes. Indeed, one of the key struggles that Wikipedia has dealt with over the years is with so-called vandals who change a page not to improve the quality of an entry, but to deliberately decrease the quality.In late 2015, the Wikimedia Foundation, which runs Wikipedia, announced an artificial intelligence tool, called ORES (Objective Revision Evaluation Service) which they hoped might be useful to effectively pre-score edits for the various volunteer editors so they could catch vandalism quicker.

ORES brings automated edit and article quality classification to everyone via a set of open Application Programming Interfaces (APIs). The system works by training models against edit- and article-quality assessments made by Wikipedians and generating automated scores for every single edit and article.What's the predicted probability that a specific edit be damaging? You can now get a quick answer to this question. ORES allows you to specify a project (e.g. English Wikipedia), a model (e.g. the damage detection model), and one or more revisions. The API returns an easily consumable response in JSON format:
The system was not designed, necessarily, to be user-facing, but rather as a system that others could build tools on top of to help with the editing process. Thus it was designed to feed some of its output into other existing and future tools.Part of the goal of the system, according to the person who created it, Aaron Halfaker, was to hopefully make it easier to teach new editors how to be productive editors on Wikipedia. There was a concern that more and more of the site was controlled by an increasingly small number of volunteers, and new entrants were scared off, sometimes by the various arcane rules. Thus, rather than seeing ORES as a tool for automating content moderation, or as a tool for quality control over edits, Halfaker saw it more as a tool to help experienced editors better guide new, well-meaning, but perhaps inexperienced editors in ways to improve.
The motivation for Mr. Halfaker and the Wikimedia Foundation wasn't to smack contributors on the wrist for getting things wrong. I think we who engineer tools for social communities, have a responsibility to the communities we are working with to empower them, Mr. Halfaker said. After all, Wikipedia already has three AI systems working well on the site's quality control, Huggle, STiki and ClueBot NG.I don't want to build the next quality control tool. What I'd rather do is give people the signal and let them work with it, Mr. Halfaker said.The artificial intelligence essentially works on two axes. It gives edits two scores: first, the likelihood that it's a damaging edit, and, second, the odds that it was an edit made in good faith or not. If contributors make bad edits in good faith, the hope is that someone more experienced in the community will reach out to them to help them understand the mistake.If you have a sequence of bad scores, then you're probably a vandal, Mr. Halfaker said. If you have a sequence of good scores with a couple of bad ones, you're probably a good faith contributor.
Decisions to be made by Wikipedia:
  • How useful is artificial intelligence in helping to determine the quality of edits?
  • How best to implement a tool like ORES?
    • Should it automatically revert likely bad edits?
    • Should it be used for quality control?
    • Should it be a tool to just highlight edits for volunteers to review?
  • What is likely to encourage more editors to help keep Wikipedia as up to date and clean of vandalism?
  • What data do you train ORES on?  How do you validate the accuracy of the training data?
Questions and policy implications to consider:
  • Are there issues when, because the AI has scored something, the tendency is to assume the AI must be correct? How do you make sure the AI is accurate?
  • Does AI help bring on new editors or does it scare away new editors?
  • Are there ways to prevent inherent bias from being baked into any AI moderation system, especially one trained by existing moderators?
Resolution: Halfaker, who later left Wikimedia to go to Microsoft Research, has published a few papers about ORES since it launched. In 2017, a paper by Halfaker and a few others noted that the tool was increasingly used over the previous three years.
The ORES service has been online since July 2015. Since then, usage has steadily risen as we've developed and deployed new models and additional integrations are made by tool developers and researchers. Currently, ORES supports 78 different models and 37 different language-specific wikis.Generally, we see 50 to 125 requests per minute from external tools that are using ORES' predictions (excluding the MediaWiki extension that is more difficult to track). Sometimes these external requests will burst up to 400-500 requests per second
One thing they noticed was that those using the ORES output often wanted search through the metrics and set their own thresholds rather than accepting the hard coded ones in ORES:
Originally, when we developed ORES, we defined these threshold optimizations in ourdeployment configuration. But eventually, it became apparent that our users wanted tobe able to search through fitness metrics to choose thresholds that matched their ownoperational concerns. Adding new optimizations and redeploying quickly became a burden on us and a delay for our users. In response, we developed a syntax for requesting an optimization from ORES in realtime using fitness statistics from the models tests
The project also appeared to be successful in getting built into various editing tools, and possibly inspiring ideas for new editing quality tools:
Many tools for counter-vandalism in Wikipedia were already available when we developed ORES. Some of them made use of machine prediction (e.g. Huggle27, STiki, ClueBot NG), but most did not. Soon after we deployed ORES, many developers that had not previously included their own prediction models in their tools were quick to adopt ORES. For example, RealTime Recent Changes includes ORES predictions along-side their realtime interface and FastButtons, a Portuguese Wikipedia gadget, began displaying ORES predictions next to their buttons for quick reviewing and reverting damaging edits.Other tools that were not targeted at counter-vandalism also found ORES predictionsspecifically that of article quality (wp10)useful. For example, RATER,30 a gadget forsupporting the assessment of article quality began to include ORES predictions to help their users assess the quality of articles and SuggestBot,31[5] a robot for suggesting articles to an editor, began including ORES predictions in their tables of recommendations.Many new tools have been developed since ORES was released that may not have been developed at all otherwise. For example, the Wikimedia Foundation product department developed a complete redesign on MediaWiki's Special:RecentChanges interface that implements a set of powerful filters and highlighting. They took the ORES Review Tool to it's logical conclusion with an initiative that they referred to as Edit Review Filters. In this interface, ORES scores are prominently featured at the top of the list of available features, and they have been highlighted as one of the main benefits of the new interface to the editing community.
In a later paper, Halfaker explored, among other things, concerns about how AI systems like ORES might reinforce inherent bias.
A 2016 ProPublica investigation [4] raised serious allegations of racial biases in a ML-based tool sold to criminal courts across the US. The COMPAS system by Northpointe, Inc. produced risk scores for defendants charged with a crime, to be used to assist judges in determining if defendants should be released on bail or held in jail until their trial. This expos began a wave of academic research, legal challenges, journalism, and organizing about a range of similar commercial software tools that have saturated the criminal justice system. Academic debates followed over what it meantfor such a system to be fair or biased. As Mulligan et al. discuss, debates over these essentially contested concepts often focused on competing mathematically-definedcriteria, like equality of false positives between groups, etc.When we examine COMPAS, we must admit that we feel an uneasy comparison between how it operates and how ORES is used for content moderation in Wikipedia. Of course, decisions about what is kept or removed from Wikipedia are of a different kind of social consequence than decisions about who is jailed by the state. However, just as ORES gives Wikipedia's human patrollers a score intended to influence their gatekeeping decisions, so does COMPAS give judges a similarly functioning score. Both are trained on data that assumes a knowable ground truth for the question to be answered by the classifier. Often this data is taken from prior decisions, heavily relyingon found traces produced by a multitude of different individuals, who brought quite different assumptions and frameworks to bear when originally making those decisions


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posted at: 12:00am on 31-Oct-2020
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Billy Mitchell's Defamation Case Against Twin Galaxies Over 'Donkey Kong' High Score Can Go Forward

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We've discussed Billy Mitchell a couple of times here at Techdirt, both times due to his overtly litigious nature, rather than his apparent video game playing prowess. See, Mitchell is rather well known primarily as the record holder for video game scores, including briefly holding the Guinness World Record for a Donkey Kong high score, until he was stripped of it. See, Twin Galaxies, an official tracker of such video game records, determined based on video evidence that Mitchell wasn't playing an official version of the arcade cabinet of the game. Upon being stripped of his records, Mitchell sued for... defamation. Oh, and he also sued the Cartoon Network over a very clear parody depiction in part inspired by his gregarious personage.But back to the defamation suit, which Mitchell filed against Twin Galaxies. He recently got the court allow him to proceed to trial after Twin Galaxies brought an anti-SLAPP suit to the court.

In his ruling on Twin Galaxies' anti-SLAPP motion, Judge Gregory Alarcon ruled that Mitchell is a public figure in the gaming community and that Twin Galaxies was discussing a controversy of public interest to that community. That means Mitchell will have to prove at trial both the falsity of Twin Galaxies' claims and that the organization acted with "actual malice" in making them.While the ruling is careful not to "weigh evidence or resolve conflicting factual claims" on that score until the full trial, Judge Alarcon does tip his hand a little as to what evidence he finds potentially compelling. In particular, the judge seems interested in why Twin Galaxies refused to interview a number of witnesses Mitchell put forward to testify to the authenticity of his score performances.
Apparently at issue is that Mitchell wanted a witness, specifically the referee of his Donkey Kong high score, to be interviewed and considered by Twin Galaxies prior to their having negated Mitchell's high scores. Here's the problem: that referee has also been banned by Twin Galaxies for cheating in trying to get high scores in an unrelated video game. Still, the court notes that, at this stage, the deference is given to the plaintiff and, in that specific light, Twin Galaxies' refusal to consider witness testimony is enough to let this proceed.Mitchell, true to his self-promoting history, is taking a victory lap on all this, as though he'd won a trial. He hasn't. Instead, he's opened himself up to discovery.
Even as Mitchell has met his burden of "minimal merit" in the anti-SLAPP motion, Judge Alarcon also writes that Twin Galaxies has "satisfied the low burden to show a reasonable possibility of prevailing in this action" in a separate motion.The scoreboard has presented evidence to "[support] that its statement does not show actual malice," the judge writes, and which "supports that Twin Galaxies did not harbor doubt as to the truth of its statement, as its statement was made after Twin Galaxies' lengthy investigation on the dispute. The testimony of [Twin Galaxies owner and CEO Jace] Hall's belief that eyewitness evidence was unnecessary may reasonably go in [Twin Galaxies'] favor on this point, undermining [Mitchell]'s claim that [Twin Galaxies] acted with reckless disregard of the truth."
It's important to be able to keep two things in your head at once: that Mitchell may well have validly broken the Donkey Kong record as he claims and that Twin Galaxies did not do anything close to reaching the actual malice standard required for a defamation case of a public figure. And, despite Mitchell's public statements to the contrary, the lawyer for Twin Galaxies doesn't seem particularly worried.
Mitchell was helped in the anti-SLAPP motion, Tashroudian says, by the fact that "at this early stage the court is bound to accept whatever Mitchell puts forward as true." That includes a lot of what Tashroudian calls hearsay evidence involving phone calls where Hall allegedly told Mitchell and Twin Galaxies founder Walter Day that he "didn't care about certain evidence.""The court is not allowed to determine the credibility of these statements [at this point] and must accept them as true," Tashroudian tells Ars. "[At trial] we'll be able to show that Mitchell is not credible because we have numerous situations of documented falsehoods in his papers. I'm confident that... after all of the evidence has been adduced, and when Billy is deposed and not allowed to hide behind declarations, the truth will come out."
I have no tea leaves to read, but those are the words of an attorney quite confident in the video evidence his client has to back up its statements. All I'll say is that Mitchell had damned well better be right that he broke those Donkey Kong records on a legit and standard Donkey Kong machine if he's really goin to proceed to discovery.

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posted at: 12:00am on 31-Oct-2020
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Twitch Marketing Promo Over Golden Emoji Goes Horribly Wrong After DMCA Nuclear Strike

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Mere days ago, we discussed the bonkers path Twitch chose for itself in dealing with a flood of DMCA takedowns issued by the RIAA. The whole episode screamed of panic. Rather than dealing with DMCA takedowns via the normal method -- taking down the content, providing the content maker with a path for a counternotice, and then putting the content back if no lawsuit was filed -- , Twitch, instead, took the extraordinary action of simply and permanently nuking the videos in question. It then, rather brazenly, informed the content maker it had done so and advised them to "learn about copyright law." In fact, given its actions, there is some question as to whether or not this is all enough to have lost Twitch its safe harbor protections.Regardless, it would be an understatement to suggest that this pissed off the Twitch community. The public backlash was both swift and severe, with content producers openly wondering if it was time to march off to a different platform entirely. Well, the very next day, Twitch began teasing a new offering coming in November and promoted this tease by releasing a sought after emote to all Twitch users.

Yesterday, Twitch took to teasing something that’s happening on November 14 (likely a digital convention called GlitchCon), as though everything is right as rain and not a corporate-friendly garbage fire. Twitch tweeted out a video that said “There’s a place where all Kappas are golden” and then temporarily turned all Kappa emotes gold.For perhaps as long as Twitch has existed, there has been a myth: On exceedingly rare occasions, if the stars align perfectly, the ever-popular “Kappa” chat emote will turn gold. Some have suggested that a single Twitch user receives golden Kappa abilities every 24 hours. Others believe you have to fulfill highly specific prerequisites in order to unlock it. Yesterday, out of the blue, Twitch gave it to everybody. Twitch streamers and viewers, in turn, did not give a shit, because they were too busy recovering from the DMCApocalypse.
It was actually worse than streamers and users not giving a shit. This fully angered people, given Twitch's actions merely hours earlier. Streamers ran to Twitter and elsewhere to congratulate Twitch on its completely tone-deaf attempt to win over users with an emote, while others noted that Twitch had some serious communicating to do with the community and "shiny emotes" ought not have been on the agenda. Others once again wondered allowed if Twitch was the right platform on which to stream.
“Twitch gets slammed by the music industry, meanwhile they changed all the Kappas to gold, maybe in the hopes we all forget about how terribly the company has been running,” said Rocket League pro Lethamyr. “I think it’s nearly time to stream live on YouTube.”
And its not as though Twitch's extreme actions have even gotten the RIAA and its comrades off of the platform's back. Instead, various industry groups released a letter still complaining that Twitch wasn't doing enough on the copyright front and was mismanaging its Soundtrack by Twitch feature, which is supposed to help streamers use authorized music.In other words, in a world where Twitch was presented with the choice of siding with its own content creators and users, or the copyright industry associations, it took the bold step of managing to piss off everyone instead. That it thought that golden emojis would somehow either stave off criticism of the platform, or at least be received without this resulting anger, seems to indicate that there are some very out of touch folks running this company at the moment.

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posted at: 12:00am on 30-Oct-2020
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A Quick Bite Post Mortem For For Quibi: Hollywood Still Doesn't Get The Internet

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So Quibi, the Hollywood dream of creating a new "professional" video streaming service by throwing $1.75 billion at Jeffrey Katzenberg and Meg Whitman and hoping they could create something, lasted all of 199 days before announcing that it was throwing in the towel (even though it apparently still has a chunk of that cash on hand, which it will be handing back to some investors). As we noted when it launched, Quibi is the perfect example of Hollywood thinking about the internet. It overvalued the content (and believed that you got the best content by throwing money at big names), and completely undervalued the internet and the fact that the killer application of the internet is community and communication.For decades now, we've pointed out time and time again that Hollywood seems to view the internet through the lens of their existing industry -- one built up with a few giant gatekeepers who "greenlight" what content gets made -- and that the content they pick must be financed with ungodly sums of money. I'm reminded of the former NBC exec who quizzed me years ago about how to make sure his company could keep making $200 million movies. As I've noted repeatedly in the 15 years since I was challenged over that, the whole question is wrong. No one in the tech industry demands that others explain "how do we keep making $5,000 computers." The industry looks at how best to serve customers -- and often looks for creative ways to do it cheaper and more efficiently, rather than just setting a cost and tossing cash into it.Quibi was the result of this kind of hubris: taking the Hollywood approach to an internet world. And it showed.As James Surowiecki highlights in his own post-mortem, Quibi is basically the opposite of what a compelling internet service is because it relies on the idea of the brilliant visionary anointing the best content, rather than letting it bubble up via the wisdom of the crowds.I find it notable that Quibi shut down the week that there was a flood of stories (and TV commercials) featuring Nathan Apodaca, the Idaho potato farmer who's random TikTok video of himself on a skateboarding heading into work (after his truck broke down) while drinking cranberry juice from a giant bottle and singling along to Fleetwood Mac went super viral. It was also a "quick bite" video, but it was basically the anti-Quibi. That one random video going viral has even brought Fleetwood Mac's "Dreams" back onto the charts 43 years after the song came out.That's the power of the internet. It allows anyone to create. It allows anyone to share. And out of all of that, it allows some amazing content to bubble up, because tons of people like it -- and not because some super rich Hollywood dude decides "this is what the people want."

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posted at: 12:00am on 30-Oct-2020
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One Restaurant Sends Cease And Desist To Another Over The Word 'Juicy'

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If it seems like there are more stupid trademark battles per capita fought in the restaurant industry, it's not because you're crazy. It's very much a thing. Whether it's Taco John's wanting to own "Taco Tuesday", McDonalds insisting only it can call a fish sandwich a "filet o' fish", or two Brazilian restaurants fighting over the rights to use image of a fire in their logos, the common theme you should notice is how these battles are all over things that are descriptive or generic. And, yet, these fights rage on.Take, for instance, a burger joint in Texas sending a cease and desist notice to another burger joint in Texas for daring to use the word "juicy."

Longhorn Cafe LLC sent a cease-and-desist letter to local restaurateur Andrew Weissman, owner of Mr. Juicy restaurants, demanding he stop using that name for his growing burger spots.The letter, which Weissman posted to his Instagram yesterday, was sent on Longhorn Cafe’s behalf by lawyer John Cave of Gunn, Lee and Cave PC. It demands that Weissman stop using the name “Mr. Juicy” at the McCullough and Hildebrand locations, or any other restaurants. The letter also demands that Weissman remove Mr. Juicy from all internet listing sites such as Yelp and food delivery sites such UberEats. It gave Weissman 10 days to respond.
While the letter itself doesn't tease out what trademarks it has that make this all trademark infringement, its menu does include an item called the "Original Big Juicy" burger. That truly seems to be what all of this is about.Which is stupid. We'll start with the fact that "juicy" is a descriptive term, particularly in the restaurant industry. Even if its use in the name of the restaurant is not describing a specific product, it's still descriptive generally. When you add to all of that the simple fact that the term "juicy," when it comes to food, is laughably generic, then the validity of this whole dispute goes right out the window.To be clear, Longhorn Cafe's actual trademark is valid: "The Original Big Juicy". That whole term seems worthy of trademark status. But it certainly doesn't make a competitor in the foodstuffs industry using "juicy" infringing upon that trademark.
Weissman said it is unfortunate that Longhorn Cafe didn’t reach out to him to work something out before sending the letter. Nevertheless, he intends to fight it, which he acknowledges will cost money.
Needless money from a burger joint that probably can't afford it. Yay, trademark bullying!

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posted at: 12:00am on 29-Oct-2020
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Content Moderation Case Study: Facebook's Moderation Of Terrorist Content Results In The Removal Of Journalists' And Activists' Accounts (June 2020)

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Summary: In almost every country in which it offers its service, Facebook has been asked -- sometimes via direct regulation -- to limit the spread of "terrorist" content.But moderating this content has proven difficult. It appears the more aggressively Facebook approaches the problem, the more collateral damage it causes to journalists, activists, and others studying and reporting on terrorist activity.

Because documenting and reporting on terrorist activity necessitates posting of content considered to be "extremist," journalists and activists are being swept up in Facebook's attempts to purge its website of content considered to be a violation of terms of service, if not actually illegal.
The same thing happened in another country frequently targeted by terrorist attacks.
In the space of one day, more than 50 Palestinian journalists and activists had their profile pages deleted by Facebook, alongside a notification saying their pages had been deactivated for "not following our Community Standards.""We have already reviewed this decision and it can't be reversed," the message continued, prompting users to read more about Facebook's Community Standards.
There appears to be no easy solution to Facebook's over-moderation of terrorist content. With algorithms doing most of the work, it's left up to human moderators to judge the context of the posts to see if they're glorifying terrorists or simply providing information about terrorist activities.Decisions to be made by Facebook:
  • How do you define terrorist or extremist content?
  • Does allowing terrorist content to stay up in the context of journalism or activism increase the risk it will be shared by those sympathetic/supportive of terrorists?
  • Should moderated accounts be allowed to challenge takedowns of terrorist content or the deactivation of their accounts?
  • Does aggressive moderation of terrorist content result in additional unintended harms, like the removal of war crime evidence?
Questions and policy implications to consider:
  • Would providing more avenues for removal challenges and/or additional transparency about moderation decisions result in increased government scrutiny of moderation decisions?
  • Can this collateral damage be leveraged to push back against government demands for harsher moderation policies by demonstrating the real world harms of over-moderation?
  • Does this aggressive moderation allow the terrorists to "win" by silencing the journalists and activists who are exposing their atrocities?
  • Could Facebook face sanctions/fines for harming journalists and activists and their efforts to report on acts of terror?
Resolution: Facebook continues to struggle to eliminate terrorist-linked content from its platform. It appears to have no plan in place to reduce the collateral damage caused by its less-than-nuanced approach to a problem that appears -- at least at this point -- unsolvable. In fact, its own algorithms have generated extremist content by auto-generating "year in review" videos utilizing "terrorist" content uploaded by users, but apparently never removed by Facebook.Facebook's ongoing efforts with the Global Internet Forum to Counter Terrorism (GIFCT) probably aren't going to limit the collateral damage to activists and journalists. Hashes of content designated "extremist" are uploaded to GIFCT's database, making it easier for algorithmic moderation to detect and remove unwanted content. But utilizing hashes and automatic moderation won't solve the problem facing Facebook and others: the moderation of extremist content uploaded by extremists and similar content uploaded by users who are reporting on extremist activity. The company continues to address the issue, but it seems likely this collateral damage will continue until more nuanced moderation options are created and put in place.

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posted at: 12:00am on 29-Oct-2020
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Not Just America: CEO Of Esports Org In India Says COVID-19 Resulted In Explosive Growth

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While we've covered the growth of esports throughout the world for some time, it's also true that the COVID-19 pandemic has resulted in that growth accelerating with incredible speed. Back in March and April, when states began shutting down because we had -- checks notes -- 20k to 30k new COVID cases per day, esports really took off. Due to shut downs, IRL professional and college sports shut down too. The result is that Americans who thirst to watch competition dove headlong into esports broadcasts, with participation and viewership clipping at 20% growth month over month. An entire economy sprung up around the industry as well, with streaming companies and broadcasters catching up to the sudden rise in interest.But if you thought this was a uniquely American thing, you're wrong. And if you think that this wave is going to crest once we're all putting vaccine needles in our arms, I think you're wrong about that, too. An Indian sporting news site recently did an interview with the CEO of Skyesports, a prominent esports company in India. While you will have to forgive some translation wonkiness in them, two questions and answers jumped out at me as I read the interview. The first was about the impact of the COVID-19 pandemic on esports' growth in India.

Q. Did Covid-19 really help esports in India as much as people say? Or were you expecting this kind of growth already?Definitely, agree. Covid19 impact has amplified the gaming scene across the world. Our Viewership and user base increased 10x and we are seeing a 20x growth rate in terms of revenues for this year alone. We have created more IPs and all of this was due to covid situation.
Twenty times growth is the sort of thing industry captains salivate for. And, while it is tough to get too excited about the silver linings of a pandemic that has killed and hurt so many people, it is still true that this growth in esports is exciting for fans. With growth comes better competition, more professional broadcasts, deeper market penetration, and jobs and opportunities.This pandemic is going to go away some day. But esports' growth might be here to stay. Why? Well, because in many markets, such as in India, all of this growth still hasn't scratched the surface of the potential market.
Q. Has Skyesports thought of expanding into South Asia? Where in specific?A:In India, esports are explored by only less than 10%. There is more to explore in India before we think about stepping foot in the South Asia region. We want to grass-root in India at the largest level before thinking of other regions and we are focusing the most to conquer India. We want to take esports to nook and corner.
It's but one anecdotal example, but an important one. Given how ripe the Indian marketplace is, and how important its economy and industries are on the world stage, an explosion of esports there is a sign of worldwide growth as well. And, the horrors of this pandemic aside, that's fun for us fans.

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posted at: 12:00am on 28-Oct-2020
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Zuckerberg And Facebook Throw The Open Internet Under The Bus; Support Section 230 Reform

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This shouldn't be much of a surprise, unfortunately, but it appears that once again Facebook is the first to crack under political pressure, and has decided to sell out the open internet and free speech online. In testimony Mark Zuckerberg is planning to give tomorrow to the Senate Commerce Committee, he's going to say a few nice things about Section 230, immediately followed by him saying the company now supports reforming the law. The praise for Section 230 is accurate, but it doesn't much matter when he takes it back immediately:

However, the debate about Section 230 shows that people of all political persuasions areunhappy with the status quo. People want to know that companies are taking responsibility forcombatting harmful contentespecially illegal activityon their platforms. They want to knowthat when platforms remove content, they are doing so fairly and transparently. And they want tomake sure that platforms are held accountable.
This ignores that people are unhappy for contradictory reasons. Some are unhappy because sites are taking down propaganda and disinformation. Others are upset that they're not taking down propaganda and disinformation (or not taking it down fast enough). NOTHING will satisfy everyone. Pretending that there's some magical reform that will work is crazy talk.But here's the real problem. Whatever nuance there is to be discussed here, whatever recognition of the problems this will cause, the following paragraph will be seen as declaring open season on Section 230 because "even Facebook supports changing the law."
Section 230 made it possible for every major internet service to be built and ensured importantvalues like free expression and openness were part of how platforms operate. Changing it is asignificant decision. However, I believe Congress should update the law to make sure it'sworking as intended. We support the ideas around transparency and industry collaboration thatare being discussed in some of the current bipartisan proposals, and I look forward to ameaningful dialogue about how we might update the law to deal with the problems we facetoday.
This is nonsense. It is working as intended. It's allowing companies to make their own decisions, and to experiment with different moderation regimes. That many people are unhappy with those choices is the very nature of content moderation. It's not like Congress is going to step in and create rules that work any better. It will only create rules that work worse.
At Facebook, we don't think tech companies should be making so many decisions about theseimportant issues alone. I believe we need a more active role for governments and regulators,which is why in March last year I called for regulation on harmful content, privacy, elections,and data portability. We stand ready to work with Congress on what regulation could look like inthese areas. By updating the rules for the internet, we can preserve what's best about itthefreedom for people to express themselves and for entrepreneurs to build new thingswhile alsoprotecting society from broader harms. I would encourage this Committee and other stakeholdersto make sure that any changes do not have unintended consequences that stifle expression orimpede innovation.
And, yes, he's repeating what he's said before, knowing full fucking well that any regulations that Congress puts in place will simply serve to lock in Facebook's position. Facebook can handle the compliance costs. The upstart companies that might disrupt Facebook will have a much harder time.Make no mistake about it: this is Mark Zuckerberg pulling up the innovation ladder he climbed behind him.This probably isn't a huge surprise. Facebook's vocal support for FOSTA -- the law that amended Section 230 and put lives at risk -- was only a first step. I was told, point blank, by a Facebook lobbyist that the company needed to support that "minor" change to Section 230 or Congress would have passed something even worse. And here we are, with Congress seeing Facebook's initial caving not as a way to be satiated, but rather as the go-ahead to continue dismantling the framework of an open internet.And, once again, here's Facebook, happily willing to go along with it.Facebook is throwing the open internet under the bus -- in part gleefully, as so-called "critics" of Facebook stupidly demanded "reforms to Section 230" incorrectly believing that 230 was a "special subsidy" for Facebook. Facebook doesn't need it any more, but all of the people who called for such reforms are now going to help cement Facebook's position of dominance.Unfortunately, this is likely to be the focus of tomorrow's hearing, with Senators taking this as permission to destroy the open internet. It is likely that they will ignore fellow panelist Jack Dorsey giving the opposing message that Section 230 is necessary to enable new competitors and free speech on an open internet:
As we consider developing new legislative frameworks, or committing to self-regulationmodels for content moderation, we should remember that Section 230 has enabled newcompaniessmall ones seeded with an ideato build and compete with established companiesglobally. Eroding the foundation of Section 230 could collapse how we communicate on theInternet, leaving only a small number of giant and well-funded technology companies.We should also be mindful that undermining Section 230 will result in far more removalof online speech and impose severe limitations on our collective ability to address harmfulcontent and protect people online. I do not think anyone in this room or the American peoplewant less free speech or more abuse and harassment online. Instead, what I hear from people isthat they want to be able to trust the services they are using.
That's the right message and an accurate one. And it will be stomped on by the message from Zuckerberg agreeing to throw the open internet under a speeding bus.

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posted at: 12:00am on 28-Oct-2020
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2K Sports Could Have Avoided Its Un-Skippable Ads Backlash If The Ads Were Better Content

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For over a decade, we have been trying to drive home the point that advertising actually is content and that content is advertising. It's a mindset sort of thing, but one that is incredibly important in an internet age where so much of a revenue emphasis is on ad-driven business models. The point of this all is that you can make any advertising included in a good or service all the more effective if --wait for it -- your customers actually want and enjoy the ads. If they're engaging, useful, or funny, the normal complaints you hear about commercials and the like simply melt away.But if your ads both suck and you force them on your customers in a paid-for product in the most ham-fisted way? Well, then it turns out you're 2K sports.

One of the many shitty things about the NBA 2K series is the fact that, for the last few years, there have been unskippable ads that sometimes load before a game. This year is no exception.The ads usually turn up as part of a pre-game video, and while in previous years they’ve been for brands like Converse and the TV show Snowfall, this year it’s an Oculus Quest commercial that’s got fans upset.
I'm a fan of the NBA 2K series, but it is undeniable that this is the worst part of the franchise. When it comes to pissing off your own customers, who are often paying $60 for your product, there is no more comprehensive way to irritate them than by forcing advertisements upon them that are shitty and not useful. While this practice would be irritating for any game, it is especially so for NBA 2K, which is a retail game customers pay for and which already is chockablock full of in-game sponsorship advertising to go alongside microtransactions. And making the ads un-skippable seems to indicate just what media the 2K Sports folks think they're delivering, because this is more of a television thing than a practice for video games.Meanwhile, gamers are generally pissed, enough so that 2K Sports responded with a tweet.
It's frankly quite hard to believe them, given that this has been the norm and the public response to it for some time. And, again, what if the ads were good? What if some real effort was made to put in content that was relevant, entertaining, or useful? Do we really think 2K Sports would be getting the same backlash?

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posted at: 12:00am on 27-Oct-2020
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Join The Fan Fiction Deep State And Watch This Latest Video That Addison Cain Really Doesn't Want You To See

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Last month we had a post about wolf kink erotica writer Addison Cain (pen name) and her abuse of the DMCA which we had first written about in May, but which came up again after YouTuber Lindsay Ellis did a fantastic video analyzing the entire case. If you haven't seen that, here it is:

The reason we wrote about it again last month was that after Ellis posted her video, a lawyer named Tynia Watson had sent Ellis what appeared to be one of the stupidest legal threat letters I've ever seen (and I've seen a lot). Ellis only revealed a brief portion of that letter, but that was enough.Now, in a new video, Ellis describes all of the nonsense that has happened since then, which goes super deep in the weeds on a variety of things. You can watch the whole thing here:
I'm not going to go over everything in the video because (1) you should watch it and (2) a bunch of it is super crazy and I don't even want to start to think about figuring out how to explain all of the background necessary. Instead, I'm just going to focus on the legal threats of Tynia Watson, who is, somehow, an actual lawyer, meaning she should fucking know better than to send such bullshit conspiracy-theory laden emails to basically everyone.As we noted, the original letter from Watson seemed to be claiming both copyright infringement (on the basis that Ellis quoted a few short segments in an obviously fair use manner) and "numerous false statements" that I could see no evidence of. In fact, Ellis' reporting got me to go back and read through a whole bunch of documents in one of the lawsuits that the video was about, and discover how Cain had insisted, repeatedly, that it was her publisher who filed the lawsuits and she had nothing to do with it -- though in discovery in a different lawsuit, it came out that Cain was in the driver's seat through much of this, telling her publisher to send the (bogus) DMCA notices, and then later telling her publisher how she was going to "hide behind" them. In fact, Cain got dismissed from one of the lawsuits on the basis that the DMCA notices were all sent by the publisher. That's kind of a big deal.Anyway, Watson then started sending more threat letters, including to Patreon and YouTube, to try to get the video taken down. Any real copyright (or defamation) lawyer should be embarrassed that Watson is also a lawyer, because these letters are... bad. You can see them in the video (so I don't have full copies to post here, as I normally would). First, Watson sent a takedown to... Patreon. Even though the video was hosted at YouTube. Ellis, like many YouTubers and podcasters, uses Patreon as a revenue source, but there's little reason to target them for copyright infringement other than being vindictive. Patreon told Ellis to go through the standard counternotice process, but did ask her to remove the link to YouTube from her Patreon post for the requisite 10 days under the DMCA to retain its safe harbors (and then relink the video). But then it also told Ellis that if this did go to court, it would totally back her up (FWIW, Patreon has some great people who work on this stuff, so I'm not surprised to see them stand behind their user like that).Then, YouTube notified her that it had also received a takedown from Cain. YouTube went even further and said that it didn't see how the video was infringing at all, and had rejected the takedown demand. Ellis seems surprised about this and says that she's never heard of YouTube not complying with a takedown, but it actually happens reasonably often. Despite all the mess with things like ContentID, YouTube's legal team does take fair use seriously, and especially on high profile videos is pretty quick to push back on censorial thuggish bullshit takedowns.Ellis then has a fun narration of the takedown letter that Cain sent to YouTube, which the company passed on. It's... stunningly stupid. Here's a key clip that I want to post here just to make sure that everyone can see just how incredibly stupid it is:
The work infringed is not "fair use". My book is not public domain; it is a creative work, not a text book. The poster reads my books to degrade my work. This is not fair use of a copyrighted work, nor was this video a review of my work. It was a personal attack framed around two lawsuits filed against me personally in which the poster did not like the outcomes....[....]The power significantly transformed my original work, both by altering the work and by mocking it for the poster's financial gain via YouTube and Patreon. Monetizing the video does not make this fair use.
Yeah. So. About all that. Fair use applies to copyright-covered works. If it were public domain, you wouldn't need fair use because... it's not covered by copyright. So that opening line is just... weird. Second, who cares if it's not a text book? Fair use is not limited to text books. Whether it's a personal attack (it wasn't) is completely meaningless to a fair use analysis as well.But it's that second highlighted paragraph that is truly stunning. Because a key point for a court determining whether or not something is fair use is, literally, was it "transformative." And here you have Cain saying it's not fair use because it was transformative. She even used the word transformative. Also, the fact that the video is monetized is also (mostly) meaningless. Yes, "commercial" works sometimes are considered to have a higher standard when it comes to fair use, but not by much, and tons and tons of stuff is still done commercially and is fair use. The main way in which the commercial nature comes into play is if the work is somehow competing in the marketplace with the original. And in no world is Ellis' video competing with Cain's books.From there, the takedown demand goes off on a rant about people being mean to her on the internet and then claims that the video is defamatory. And, like, that sucks, and people shouldn't be mean to Cain (or anyone) on the internet, and shouldn't threaten people, but that's got absolutely nothing at all to do with whether or not something can or should be taken down via a copyright claim. It's pure performative emotional bullshit victim-playing. Also, the video is not defamatory.The video then goes into a bunch of other stuff which is fascinating and insane and bad, but we'll pick it up again later on in the story, after EFF steps in to defend Ellis and sends Cain's lawyer a letter basically saying "c'mon, you know this is nonsense." Rather than just walking away, the way a smart lawyer would, Cain's lawyer doubles down in a manner I've only rarely seen before. Again, I don't have the whole letter, but the parts that Ellis highlights are... whoo boy. A journey.It argues that EFF is part of some giant conspiracy with Ellis and the Organization for Transformative Works (OTW). OTW is a great organization. We've written about them a few times, and once even teamed up with them on an amicus brief. But they're not EFF. They've worked with EFF on some things where their work has overlapped, but... so what? Watson/Cain seem to think there's a big conspiracy:
As your organization, the Electronic Frontier Foundation ("EFF"), is a close partner with the Organization for Transformative Works ("OTW"), and was clearly working with Lindsay Ellis on the Video, the EFF is aware that for over two years, my client, Addison Cain ("Ms. Cain") has been involved in two lawsuits in which the plaintiff (Quill Ink Books, Limited) was supported by the OTW...
Huh? What does that have to do with anything beyond attempting to tie red strings to cork boards. It gets worse.
Regardless of what really happened during the two lawsuits, it is clear that you and your client were intent on spreading false allegations and outright lies about my client and the litigation in the monetized Video, which the EFF received a portion of the proceeds to produce.
Ellis did mention EFF at the end of her first video because that's a nice thing to do when talking about bogus copyright abuse to try to silence critics, but it had nothing to do with the video. This is just random nonsense conspiracy theory claptrap.
Ms. Ellis could have easily condensed use of Ms. Cain's book into a few paragraphs for illustration instead of reading from the book for over two minutes.
Er. She did condense it down to just a few illustrative paragraphs. As is kinda obvious from the fact that in her nearly hour long video, there was just about two minutes of text from the book. It's bizarre to claim that Ellis should have done... what she actually did. And then complain about it.It gets more and more unhinged, tying Zoey Ellis (the pen name of the plaintiff in the original case, who is no relation to Lindsay Ellis and has nothing to do with the creation of any of these videos) to all of this.
Zoey Ellis and her attorneys utilized numerous methods to obtain their objective to smear Ms. Cain's name, but one common denominator has been their utilization of the OTW, of which EFF is a close partner.....[....]Though you failed to directly address our allegations of defamation in your letter, it is our opinion that defamation exists, and because the EFF worked in collusion with Lindsey Ellis to create the monetized Video, the EFF is also culpable for the copyright infringement and the defamation.
Just to be clear, again, though it shouldn't need to be said: the EFF did not work with Lindsay Ellis on the video (nor did OTW, which is a totally separate organization from EFF). The video is neither defamatory nor infringing. And, even if it were (which it's not), there is no way that EFF would be "also culpable" of either the infringement or the defamation (which, again, does not exist). We're in pure crazy town.And we're not leaving crazy town any time soon:
The tie between OTW and the EFF and the history of abuse my client faced the last two years, makes the use of Lindsay Ellis, a YouTube/Patreon personality with public sway, suspicious in the least, particularly where you assisted in the creation of a monetized Video where both the EFF and Linsday Ellis could profit off copyright infringement and defamation.
Again, none of that makes any sense, either from a "this is how facts work" standpoint or a "this is how law works" standpoint. If an actual lawyer wrote this, it is truly embarrassing. It goes on and on and on in this fashion and those are only the clips that Ellis shares. The full letter was apparently 40 pages. I'm flabbergasted.As Ellis points out, Cain/Watson are effectively arguing that there's a vast fan fiction deep state working together to bring down... this one random author of wolf kink erotica. Because that makes sense.Here's a simple lesson that Cain and Watson might want to learn: after people call you out on bullshit DMCA notices... stop digging. Don't file more. Don't claim defamation. Don't draw stupidly obviously bullshit conspiracy theories on the cork board with red yarn. Admit you fucked up, don't do it again, and move on with your life writing terrible wolf kink erotica fiction.

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posted at: 12:00am on 27-Oct-2020
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This Week In Techdirt History: October 18th - 24th

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Five Years AgoThis week in 2015, the FBI was seriously dragging its heels on a FOIA request we filed, while we were looking at a recent terrorist bust by the agency that didn't seem to be very hampered by people "going dark", and Apple was in court fighting against demands that it unlock a phone. We took a look at how cable television is the exception to a pattern of decreasing prices for tech hardware and services, while the cable industry was still trying to explain how cord-cutting wasn't a real problem. And Tim Berners-Lee was speaking out about Facebook's plan to bastardize the internet with a limited free offering.Ten Years AgoThis week in 2010, there were a lot of shots fired in the legal war over commenters, with Google being ordered to turn over the IP addresses of YouTube commenters in one case just as a Canadian cop was filing another case with a similar demand, and a Broadway actor was also suing Twitter to unmask an anonymous tweeter — though perhaps the most fiery anger towards anonymity was from Gene Simmons who... wanted the nebulous online group Anonymous thrown in jail. Blizzard was employing a dubious copyright theory to go after cheat creators, an English heritage organization was making a beyond-dubious claim that it holds effective copyright on any and all photos of Stonehenge, and Joe DiMaggio's estate was trying to block the use of a photo of DiMaggio and Marilyn Monroe with a threat that seemed like it might turn into a battle over questionable publicity rights — something we generally expected to fuel a growing category of IP trolling. There were developments in a few major copyright lawsuits too, with Righthaven losing to fair use in the first ruling to come down on its operation, the Golan case being appealed to the Supreme Court, and Viacom busting out the big guns for its YouTube appeal by hiring former solicitor general Ted Olson.Fifteen Years AgoThis week in 2005, the booming world of blogs was facing its first big spam crisis, while traditional news publishers were beginning to come to terms with how deeply they needed to rethink their operations for the internet. India joined the list of countries getting scared about Google Earth, though a tragedy in Pakistan was demonstrating how satellite images can be a good thing. Viral video makers JibJab were being awfully hypocritical about fair use and apparently failing to properly understand what it's for, while Craigslist was disappointingly fighting against scrapers and aggregators. And two of the biggest and most controversial internet names of the era were teaming up as Michael Robertson hired DVD Jon to hack for him.

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posted at: 12:00am on 25-Oct-2020
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Content Moderation Case Studies: Facebook Removes Militia Event Following A Shooting (August 2020)

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Summary: Following the shooting of Black man Jacob Blake by Kenosha police officers, protests erupted in the Wisconsin town.As law enforcement attempted to rein in the damage, citizens aligning themselves with private "militias" discussed taking action during the civil unrest.Some of this organizing began on Facebook. A Facebook "event" created by the Kenosha Guard account (and promoted by conspiracy theorist/far right website Infowars) possibly caught the eye of 17-year-old Kyle Rittenhouse. Rittenhouse traveled from his home in Antioch, Illinois with his weapons to the protest/riot occurring less than 30 minutes away in Kenosha, Wisconsin. Before the night was through, Rittenhouse had killed two residents and injured one other.Facebook finally removed the "event" posted by the Kenosha Guard account -- one the account referred to as a "call to arms." Posts by the group asked "patriots" to "take up arms" against "evil thugs." The event was deemed a violation of Facebook's policy regarding "Dangerous Individuals and Organizations." Facebook also claimed it could find no link between the account and this event and Kyle Rittenhouse.Some viewed this response by Facebook as too little too late. Someone had already apparently heeded the call to "take up arms" and had taken people's lives. According to a report by BuzzFeed, the event had been reported 455 times before Facebook removed it. Four moderators had responded to multiple flaggings with a determination that the event (and the account behind it) did not violate Facebook's rules. During an internal meeting with moderators, CEO Mark Zuckerberg admitted the company should have reacted sooner to reports about the event.Decisions to be made by Facebook:

  • Should moderators be given more leeway to remove events/accounts/pages (at least temporarily) that have generated hundreds of complaints, even if they don't immediately appear to violate policies?
  • Would a better/more transparent appeal process allow moderators to make more judgment calls that might address issues like this more expediently by allowing them to make mistakes that can be undone if no violation occurred?
  • How does the addition of more forms of content to the "unwanted" list complicate moderation efforts?
Questions and policy implications to consider:
  • Does the seemingly constant addition of new forms of content to "banned" lists invite closer government inspection or regulation?
  • Is a perceived failure to react quickly enough an impetus for change within the company?
  • Are policies in place to allow for judgment calls by moderators? If so, do they encourage erring on the side of caution or overblocking?
  • Does taking credit for actions not actually performed by Facebook make it appear more focused on serving its own interests, rather than its users or public safety in general?
Resolution: The event flagged by hundreds of users was ultimately removed but not by Facebook, as was earlier reported. The group that posted the event took it down following the shooting in Kenosha. The company appears to realize this delay may have contributed to events that unfolded in Kenosha and has put policies in place to make things clearer for moderators.

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posted at: 12:00am on 24-Oct-2020
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Tom Lehrer, Still Awesome, Releases Lyrics Into The Public Domain

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Back in 2014 we had a post about Tom Lehrer and copyright. As you hopefully know, Lehrer, the unassuming retired math teacher, had a brief and massively successful music career, in part because all of his work is amazing. Years back, Buzzfeed had a fantastic article about Lehrer that is worth reading. That's what spurred my post about Lehrer and copyright, because in the Buzzfeed piece it became clear that Lehrer did not care one bit about retaining his copyrights.

While Lehrer has made startlingly little effort to ensure a future for his work, a handful of superfans have filled in the gap. One is Erik Meyn, a Norwegian who manages the Tom Lehrer Wisdom Channel on YouTube, a feed of performance videos and playlists that has received more than 10 million views since 2007. Meyn originally posted content to the channel without Lehrer's permission and called him from overseas in December 2008 to apologize, a conversation he later posted on the Tom Lehrer! Facebook page. An excerpt:
TL: Well, you see, I'm fine with that channel.EM: You're very kind. But my question is: Who in your family will take care of your copyright and your songs in the distant future?TL: I don't have a family.EM: OK, but what do you think will happen to the channel and your songs? And if you have someone who will act on your behalf, could you give them my name in case they'd want the channel taken down?TL: Yes, but there's no need to remove that channel.EM: I was just wondering what will happen in the future, because you're certainly going to continue to sell records.TL: Well, I don't need to make money after I'm dead. These things will be taken care of.EM: I feel like I gave away some of your songs to public domain without even asking you, and that wasn't very nice of me.TL: But I'm fine with that, you know.EM: Will you establish any kind of foundation or charity or something like that?TL: No, I won't. They're mostly rip-offs.
And then later, Lehrer talks about how he doesn't even care about his masters any more:
In 2011, Morris was rummaging through the Sparks Street basement, and alongside the collection of books and records Lehrer referred to as his Noel Coward shrine were two boxes marked masters. They were, to Morris, the holy grail. These were the original recordings of the 1959 album More Songs by Tom Lehrer: the orchestral session and outtakes and Lehrer's recordings. Morris offered to help Lehrer remix them from half-inch tapes into stereo recordings.Well, why don't you just take them with you? Lehrer said.I was like, 'Are you kidding?! These are the master copies!' Morris recalled. I was just trying to reassure him, I'll be very careful with them, I won't let them fall in the wrong hands, I'm not going to distribute copies to anyone without your permission.I don't care! Lehrer told him. They're not worth anything to me.
Lehrer clearly sees that he doesn't need to retain the copyrights and try to squeeze extra profits out of the works (of course, it helps that he never gave up the copyrights and masters to giant record companies). And I loved the fact that he said he was "fine with that" when told that his songs were given away to the public domain.Of course, all of that is just talk in an article. Which is why it was exciting to see earlier this week that Lehrer's website has announced that all of his lyrics should be considered in the public domain:
I, Tom Lehrer, and the Tom Lehrer Trust 2000, hereby grant the following permission:All the lyrics on this website, whether published or unpublished, copyrighted or uncopyrighted, may be downloaded and used in any manner whatsoever, without requiring any further permission from me or any payment to me or to anyone else.Some lyrics written by Tom Lehrer to copyrighted music by others are included herein, but of course such music may not be used without permission of the copyright owners. (The translated songs may be found in their original languages on YouTube.)In other words, all the lyrics herein should be treated as though they were in the public domain.In particular, permission is hereby granted to anyone to set any of these lyrics to their own music and publish or perform their versions without fear of legal action.
If you want to be technical, under US law there is no "official" way to move things into the public domain like this. You can only make an effective license not to sue about it, which is what Lehrer has done. And good for him.And while at this time it's just his lyrics, it sounds like he's looking to figure out how to do something similar for the compositions as well:
This permission applies only to the lyrics on this website. Most of the music written by Tom Lehrer will be added gradually later with further disclaimers.
Of course, it's notable that at the time he made most of his recordings, you could only get a federal copyright for the composition and not the sound recordings. Some later recordings, however were released in the 2000s (and sometimes by other companies) and I imagine the copyright situation with those recordings may be a bit more complex. Still, putting the lyrics in the public domain is something worth celebrating.And, thus, in celebration, I'll embed Tom Lehrer performing "Who's Next?" in the hopes that other musicians will embrace this (even though the song is actually about who will next get the nuclear bomb).


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posted at: 12:00am on 24-Oct-2020
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Appeals Court Reinstates Injunction Blocking Federal Agents From Assaulting Portland Journalists

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The city of Portland, Oregon is still in the midst of anti-police brutality protests stemming from the killing of Minneapolis resident George Floyd by police officer Derek Chauvin. Federal officers arrived in Portland in July, making their presence known by engaging some extremely questionable tactics.Their arrival was met with their addition to an ongoing lawsuit against law enforcement seeking an injunction banning cops of all types from assaulting or dispersing journalists and legal observers. The plaintiffs secured an injunction. They also secured an agreement from local police to stop treating those reporting and observing protests as protesters, exempting them from dispersal orders and forbidding them from being targeted with crowd control measures, such as tear gas and rubber bullets.The federal interlopers gave zero fucks. They were added to the injunction but immediately violated it. The feds' excuse? Sometimes protesters and rioters disguised themselves as press to avoid being dispersed and/or assaulted. The district court pointed out the local police had made no such accusations and appeared capable of controlling crowds without violating their agreement.The federal agencies appealed. In August, the Ninth Circuit Court of Appeals stayed the injunction. A short opinion stated the federal government had shown evidence it would suffer "irreparable harm" if officers weren't allowed to assault members of the press and other non-protesters. The emergency stay of the district court's injunction was granted.The Appeals Court has now fully addressed the government's arguments and reversed its stance. The federal defendants are no longer exempt from the injunction forbidding them from assaulting journalists.The government made three arguments in favor of assaulting journalists and observers. First, it argued journalists would not be deprived of Constitutional rights if assaulted or otherwise removed from areas where protests are taking place. It also argued that observing or recording protests (as observers or journalists) was not protected by the First Amendment -- not when dispersal orders have been given. Finally, it argued federal officers were not targeting journalists and observers for being journalists and observers, so any OC spray/bullets headed in their direction were just part of solid, proven crowd control efforts. This last argument was made despite recordings being submitted to the court that showed federal officers appearing to deliberately target journalists with pepper spray and other forms of force.The Appeals Court [PDF] says a lot of what the government is asserting simply isn't true. There's ample evidence showing federal officers deliberately targeted journalists and observers.

The district court’s preliminary injunction included twelve pages solely dedicated to factual findings that describe in detail dozens of instances in which the Federal Defendants beat plaintiffs with batons, shot them with impact munitions, and pepper sprayed them. The court’s findings were supported by nineteen declarations and video and photographic evidence. The Federal Defendants do not argue that any of the district court’s findings are clearly erroneous, and we conclude the findings are amply supported.As of the time the preliminary injunction was entered, the district court found that the Federal Defendants had engaged in a pattern of conduct that had persisted for weeks and was ongoing. After reviewing plaintiffs’ declarations, photos, and video clips, the district court found that many victims had been standing on public streets, sidewalks, and parks, well away from protestors, and were not engaged in unlawful activity when they were shot, tear gassed, shoved, or pepper sprayed by the Federal Defendants. Unlike Lyons, the district court found that some journalists and legal observers monitoring the protests had been injured by the Federal Defendants more than once.
The plaintiffs' arguments clearly aren't speculative. Actual harm has been shown. And, given the fact federal officers did this repeatedly despite the district court's injunction, there's every reason to believe they will continue to do so.The court also points out the government's claims that its officers' actions against journalists were not retaliatory is clearly bullshit. The Appeals Court says federal officers engaged in retaliatory actions repeatedly. Referring to evidence submitted to the district court, the Appeals Court highlights four acts of retaliation by federal officers.
On July 29, plaintiff Brian Conley was wearing a photographer’s vest marked “PRESS,” a helmet marked “PRESS,” and was carrying a large camera with an attached LED light and telephoto lens. After reviewing video footage submitted by plaintiffs, the district court found that Conley was filming a line of federal officers moving down the street pepper spraying peaceful protesters—including spraying a woman in the face at point blank range who was on her knees in the middle of the street with her hands up—when, without warning, a federal officer pepper sprayed Conley at point blank range.On the night of July 19, Jungho Kim, a photojournalist, was wearing a neon yellow vest marked “PRESS” and a white helmet marked “PRESS” on the front and rear. The district court found that Kim was standing alone, about 30 feet from federal agents, taking photographs, when suddenly and without warning, Kim was shot in the chest, just below his heart with a less-lethal munition. A photograph submitted with Kim’s declaration shows that he was shot where the word “PRESS” was printed on his vest.On the night of July 26, Daniel Hollis, a videographer, was wearing a press pass and a helmet marked “PRESS” in bright orange tape, and carrying a large, professional video-recording camera. Hollis was filming a group of federal agents massed outside the federal courthouse. “Almost immediately,” the federal agents shot at him, striking him just left of his groin. He turned and began to run away, but was shot again in the lower back.On July 27, Amy Katz, a photojournalist, was wearing a hat and tank top marked “PRESS” and carrying a camera with a telephoto lens while covering the protests. Katz was photographing a federal agent who pushed a man down a flight of stairs while arresting him. Another federal agent physically blocked Katz and tried to stop her from photographing the arrest. Katz stepped to the side to continue photographing the arrest, and the federal agent physically shoved her away.
That's only four incidents. The district court listed at least forty-five similar instances -- all of which occurred after the government had been hit with an injunction banning it from engaging in this behavior. The lower court also stated it was "clear" there were more instances that weren't detailed in its decision.The Appeals Court says the press has the same right to access the general public does. It can record officers' actions from public streets and sidewalks. The press certainly does not have less access than protesters, which was the government's argument. The Appeals Court says dispersing the press from these areas is not essential to protecting the government's interests.And the government's interests -- as far as Portland goes -- are very limited. The government gives the court no reason why its task of defending federal property requires it to remove press and observers from public areas away from this property or deliberately target press with crowd control weapons.Finally, the Appeals Court again notes local law enforcement had no problem abiding by the restraining order, even though its jurisdiction covered far more than federal buildings. Every argument the government raised in defense of it assaulting journalists is undercut by the agreement struck between press members and the Portland Police. The feds should have no problem abiding by the injunction, the Appeals Court says.
By its terms, the preliminary injunction the district court entered against the Federal Defendants addresses each of the reasons the Federal Defendants advanced to argue that it was impossible to tailor their dispersal orders. As to the contention that journalists or legal observers might interfere with federal law enforcement if not required to disperse, the preliminary injunction expressly prohibits journalists and legal observers from impeding, blocking, or otherwise interferingwith the lawful conduct of the Federal Defendants. The preliminary injunction leaves the Federal Defendants free to make arrests if there is probable cause to believe a crime has been committed, even if the perpetrator is dressed as a journalist or legal observer. The preliminary injunction also provides that the Federal Defendants will not be liable for violating the injunction if journalists or legal observers remain in the area after a dispersal order is issued, and are incidentally exposed to crowd-control devices. Finally, though the Federal Defendants argued that large and unique identifying markings on their uniforms could inhibit their ability to carry out their duties, the district court concluded they did not support this claim.
The stay is lifted. The injunction secured three months ago is back in effect. If recent history is any indication of future performance, it will soon be violated by federal agents still in Portland. But if they do violate it deliberately, they won't be given the benefit of a doubt. Qualified immunity will not apply.

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posted at: 12:00am on 23-Oct-2020
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FLVTO.biz Petitions SCOTUS To Hear Jurisdiction Argument In Stream-Ripping Lawsuit

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While the music industry's war on stream-ripping sites -- sites that have perfectly legitimate and legal uses -- continues, it's true that this is a war in which one side has almost universally surrendered. Facing legal opposition with well-funded industry groups, most stream-ripping sites simply close up shop when staring down litigation. But Russia-based FLVTO.biz has been an exception. We first wrote about the site's decision to defend itself back in early 2019. At that point, the owner of the site, Tofig Kurbanov, had successfully argued in a Florida court that the United States legal system had no jurisdiction over his site, given that it operates in Russia and makes no effort to entice American patronage.It was a sensible ruling. After all, why should anyone want websites in one nation to be subject to the laws of every other nation's laws just because the internet is designed to be international? And, yet, the RIAA labels appealed the ruling and got it reversed. The case was sent back to the lower courts where it was supposed to once again proceed, except that Kurbanov's team has asked the Supreme Court to consider its jurisdiction arguments once more.

Those plans were then confirmed last month back at the Virginia court where the lawsuit began, which is considering the case anew following the Fourth Circuit ruling. Kurbanov’s lawyers have asked the district court to pause the ongoing proceedings there pending their application to the Supreme Court.That application was submitted earlier this week. It argues that the top court should consider the case, because some Supreme Court style consideration is required on the issue of whether or not “the ‘due process clause’ of the United States Constitution is violated when a foreign citizen is subjected to personal jurisdiction based entirely on: (1) his operation of a website that is popular both within the United States and worldwide, but which is not specifically aimed at the United States; and (2) minor internet-based and internet-initiated transactions entered into by the foreign citizen entirely from outside the United States”.
This is indeed just the sort of important due process argument in the age of the internet that a sober SCOTUS should be weighing in on. And, while we could get lost in the legality of it all, common sense really should rule the day here. Does American law have jurisdiction over foreign entities not making any real effort to do commerce on American soil or does it not? And, if so, what precedent does that set for every other nation out there in terms of how American-based businesses conduct business over the internet?Shall legal pornography websites in America be subject to the more prudish laws of other nations? Should news organizations in America face litigation from countries with far fewer press and free speech protections? Hell, should American entities legitimately selling RIAA label music themselves face threats from countries with obscenity laws and the like?
Evan Fray-Witzer said: “If you operate a website that is popular, then you’re subject to jurisdiction anywhere – and everywhere – that people access the website. And that’s not a precedent that anyone should want to stand, because if Kurbanov can be dragged into court here from Russia, then any US citizen who creates a popular website can expect to be dragged into court anywhere in the world”.The lawyer also told Torrentfreak that the major labels should support his client’s bid to get the Supreme Court to provide clarity on this issue.“If the record companies are so certain that the Fourth Circuit got this question right, then they should be anxious for the Supreme Court to take up the case”, he added. “We invite them to join our petition and ask the Supreme Court to weigh in on these crucial jurisdictional questions. But I’m not holding my breath that they’ll do so”.
It can be hard for the labels to see past the ends of their own noses, but they should realize that they could truly be biting themselves in their own asses if SCOTUS refuses to hear this case and this precedent gets set. The internet is international, but American laws are not.

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posted at: 12:00am on 23-Oct-2020
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Stupid Use Of Profanity Filter Makes A Mess Of Virtual Paleontologist Conference

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We've known for some time that the sorts of automated filters that get applied to various internet-y things are flawed in the extreme. But of all the filters that annoy me the most, profanity filters are the worst. And, no, it's not just because I use curse words like commas. Rather, it's the combination of just how badly this is used, such as how Google thought for years that "bisexual" was a naughty word, along side how nefarious actors can block all sorts of non-profane language just by calling it profane. Add to all of this that a total lack of nuance for identifying so-called "naughty words" regularly causes perfectly non-profane content to be blocked or censored and this all begins to look like an exercise worth giving up.For a great example of that last bit, we need only to look at a recent remote conference conducted by paleontologists that went awry due to a profanity filter.

Participants in a virtual paleontology session found themselves caught between a rock and a hard place last week, when a profanity filter prevented them from using certain words – such as bone, pubic, stream and, er, beaver – during an online conference.“Words like ‘bone’, ‘pubic’, and ‘stream’ are frankly ridiculous to ban in a field where we regularly find pubic bones in streams,” said Brigid Christison, a master’s student in biology attending the event, in an interview with Vice.
Why, yes, that is really stupid. If your profanity filter is filtering out words you need to use for your field, then your profanity filter sucks and should be done away with. And, really, are members of the Society of Vertebrate Paleontology really so sensitive that any profanity filter need be in place at all. These people are adults and can be trusted, not journalists for The New Yorker.Now, much of the blame for this comes from the organizers of the event for some reason including a filter setup for typical business meetings.
“Apparently it came with a pre-packaged naughty-word filter. After getting a good belly laugh out of the way on the first day and some creative wording (my personal favorite was Heck Creek for Hell Creek), some of us reached out to the business office, and they’ve been un-banning words as we stumble across them,” an SVP member explained to Reddit users.
I'm not entirely sure why any of this is funny, to be honest. It's just annoying. Especially, as the article notes, when there are some curious choices made in the stock filter as to what words to filter out as profane or not. "Wang" is filtered for instance, despite it being a common last name, but "Johnson," which has the same slang meaning, is totally allowed.Again, all of this is simply annoying and unnecessary. Trust adults to be adults and either not use profane words, or else be able to handle it if someone else occasionally does. These filters aren't working.

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posted at: 12:00am on 22-Oct-2020
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Content Moderation Case Study: Handling Trolls Invading A Community (1993)

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Summary: Before even the World Wide Web existed, Usenet was a popular gathering place for various niche communities to congregate. In many ways it was similar to what Reddit has become today, except that it was not controlled by any single company. Instead there were a number of newsgroups (like subreddits) and various news servers that could choose to carry whichever news groups they wanted.Each news group was a specialized topic area, so there could be newsgroups for Bob Dylan's music (rec.music.dylan) or computer languages (comp.lang.lisp). One newsgroup, started in 1990, was alt.tasteless which, as the name suggests, was a newsgroup for sharing offensive content. As its Frequently Asked Questions (FAQ) noted:

A newsgroup devoted to tasteless phenomena in all its forms.A place for people with a twisted and sick sense of humour.In alt.tasteless we like to get into the details. We wantthe feel of it, the smell of it, the stench of it, everylittle rotten and puss-oozing detail. And then, of course,some rough pictures of it in alt.binaries.pictures.tastelessor alt.tasteless.pictures.
One of the founding members of alt.tasteless, Steven Snedker, told Wired Magazine in 1994 that one of the reasons it was created was to keep other parts of Usenet clean. Except, as a classic Wired article notes, that's not what happened. Instead, alt.tasteless decided to invade another newsgroup: rec.pets.cats, a newsgroup discussing cats. Today, having trolls from a tasteless part of the internet invading a more wholesome spot is a known phenomena. But the alt.tasteless invasion of rec.pets.cats in August of 1993 may have been the first case.
It began with a fake anonymous posting to rec.pets.cats by a member of alt.tasteless. The subject was Cats & Dates and it told a slightly off-color story about a pet cat in heat scaring off dates. Many participants in rec.pets.cats tried providing useful advice, but then others from alt.tasteless started responding with tasteless responses.This only began an escalating war between newsgroups in which one side (alt.tasteless) clearly held the upper hand. As summarized by Wired, the leader of the alt.tasteless effort was mostly a college student named Constantino Tobio Jr., who went by the evocative name Traschcan Man on alt.tasteless.
During the ensuing months, it is safe to say that hundreds of messages passed back and forth. Whenever life began to return to normal at rec.pets.cats, someone from alt.tasteless would post an article there looking for, say, a good recipe for Polynesian cat. Occasionally, someone from rec.pets.cats would try to fight back by posting an article about his or her cute kitty on alt.tasteless. But that only led people like Trashcan Man to respond with their own articles about topics such as vivisecting the cat and having sex with its innards.Yes, Trashcan Man was right there on the front lines of the war.One day, a (real) rec.pets.cat person posted an article to his own news group asking whether anyone could suggest a way of keeping a neighborhood dog from harassing his cat. Trashcan Man had a suggestion: Spray it in the face with muriatic acid, a form of hydrochloric acid. Of course this is dangerous - about as sensible as warming a cat by putting it in a microwave oven (which someone had previously recommended).
This situation created something of a crisis on rec.pets.cats, where people were (a) just wanting to talk about cats and (b) worried that someone might actually fall for the dangerous suggestions from the invading users.Decisions to be made by participants in rec.pets.cats:
  • How do you stop users who are posting to the community for clearly malicious reasons?
  • How can you distinguish bad actors from those who legitimately want to be on rec.pets.cats?
  • Is there any way to prevent the invasion from continuing?
  • Are there ways to effectively punish those who began the trolling behavior?
Questions and policy implications to consider:
  • On a system without central control, who handles content moderation decisions?
  • Is it reasonable to leave such decisions up to the users in the community?
  • Can there be open niche communities that will not be ruined by malicious users?
Resolution: One user on rec.pets.cats, Karen Kolling, decided to take matters into her own hands, first teaching the (not always tech savvy) users of the newsgroup how to use kill files to block the trolls from alt.tasteless, in an effort to lessen their impact.
Kolling began teaching the cat people how to write "kill files."On Usenet, kill files are a way to filter out messages from people you don't want to see. Some places refer to them as "bozo filters." With a kill file, you can, say, screen out any messages posted by someone named Trashcan Man, so that when you go through the day's articles none of his will show up. It will be as if they were never written."Let's say Joe Smith posted a message to rec.pets.cats, full of descriptions of how he likes to mutilate cats," Kolling explains. "You can set the kill file to get rid of the messages of Joe Smith." And that is precisely what she taught her friends to do. It worked for a while, until alt.tasteless people began "counterfeiting names so you wouldn't know it was Joe Smith," she says.
The battle between the two newsgroups escalated, including personal attacks on Kolling. Eventually, she realized that she needed to get the leader of the attack -- Trashcan Man -- to stop. And she did that by getting his internet service provider to threaten to disconnect him:
Kolling and a few of her Net-savvy friends began contacting the people who provide Net access to some of the more flagrant abusers. These system administrators were at universities in some cases; in others, they ran commercial gateways to the Internet."What I was hoping was that the system administrators would just tell them, 'Hey, grow up,' and that would be enough," she says.Maybe that's what did happen in some cases. In other cases, though - cases like Trashcan Man's - the reaction was more pointed. At the time, Trashcan Man was reduced to buying net access from Panix, a popular provider in New York City. He had had a free account at Columbia, but that was suspended after Trashcan Man planted a thing called a fork bomb on the system, which caused it to crash.One morning late in the fall, Trashcan Man connected to Panix and got a stern warning from the owner, Alexis Rosen. In e-mail Rosen noted that there had been complaints - again - about Trashcan Man. The tone of the message was clear: Knock it off, or else."So I knocked it off," Trashcan Man says, "because I value my Net access."
The Wired story ends by saying things calmed down somewhat after that, with Trashcan Man saying that he'd learned his lesson (though he said he was still flaming people -- but just those he believed deserved it). Soon after the article ran in 1994, Trashcan Man graduated from Columbia University. According to LinkedIn he's now been an engineer at a tech company for more than two decades.

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posted at: 12:00am on 22-Oct-2020
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Watch Out: The Patent Maximalists Are On The Warpath To Destroy Innovation And Empower Patent Trolls

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Over the last year or so there's been a concerted effort by patent maximalists to try to shred a long line of very good Supreme Court rulings that finally (after two decades) limited just some of the destructive nature of patent trolling. There was an attempt in Congress to literally reject all of those key Supreme Court cases, and bring back Congress's full support for patent trolling. The current head of the patent office has been spewing a bunch of similar nonsense as well, and seems to have no recognition that patents that are too broad hinder, rather than help innovation. And now we have Judge Randall Rader, who ran the federal patent court, the Court of Appeals for the Federal Circuit (CAFC), for many years before stepping down due to an ethics scandal.That ethics scandal? Being way too chummy with patent lawyers who practice before him. As we've noted over the years, part of the problem with the setup of CAFC -- a special appeals court for all patent appeals cases to go to -- was that the judges on it tended over time to buy into patent maximalism, because they basically only spoke to patent lawyers.Judge Rader has now decided to pop back up again to argue that we need more bad and broad patents in order to enable more patent trolls. Or America won't be able to compete. Or some such nonsense.

Our country's founders understood that patents are critical to innovation. For that reason, the principle is enshrined in our Constitution, which grants Congress the power to promote the Progress of Science and useful Arts by awarding Inventors the exclusive Right to their discoveries. Indeed, our patent system incentivized and empowered early inventors like Thomas Edison and Alexander Graham Bell, and helped create today's technological giants like Apple, Google, Microsoft and IBM.This is basic economics. Patents guarantee a limited monopoly on inventions (usually 20 years), which lets inventors recoup the costs of research and development, and repay investors who help convert scientific theory into usable technology. It is no coincidence that America in the 20th century had both the strongest patent system and the most powerful economy in the world.
This is ahistorical claptrap. Patents have never been "critical" to innovation. Plenty of studies have shown that innovation occurs in the absence of patent laws (and seems to occur even faster in those markets). And if we're talking "basic economics" let's send Judge Rader back to his Econ 101 class. Monopolies are the antithesis of innovation. Inventors recoup the cost of research and development by selling a product in the market. And yes, there are reasonable concerns about copycats, but copycats are what drive innovation. The originator has to keep innovating, and making their product better, and copycats tend to trail innovators.Indeed, the monopolies are what slow innovation, by taking away the incentive for inventors to actually make their product better. This is why the steam engine didn't really take off until the patents expired. We see this over and over again.Also, Rader ignores that while his argument might make sense in a few limited areas of innovation, the vast majority of innovation happening today has nothing to do with patents at all. The R&D cost of developing "software" doesn't need to be recouped the way he describes, and software is already protected by copyright. Google didn't rely on the patent system -- and it's insulting to the company to say that they did. Microsoft and Apple didn't start relying on the patent system until much later in their lives -- well past what's considered their "innovative" period, and only to limit smaller competitors and slow down the pace of innovation.In short, Judge Rader has no idea what he's talking about. And that's just in the lead in to this piece. Because now he's going to complain that we don't have more software patents -- attacking the most important and useful Supreme Court case in decades, the Alice case that effectively invalidated a ton of ridiculous software patents that never should have been granted. The impact of the Alice ruling was fantastic. Tons of software patents were invalidated. It destroyed the business model of a bunch of patent trolls and it (for a little while at least) got the US Patent Office to start rejecting a bunch of bad patents.But, of course, the ruling in the Alice case was overruling one of the most ridiculous CAFC rulings in which Judge Rader himself said a bunch of ridiculous things. So now he wants to undo the Supreme Court's ruling that rejected his ideas about software patents.
In Alice Corp. v. CLS Bank, the Supreme Court ruled that a computer service designed to mitigate risk in financial transactions could not be patented despite the fact that computers and software were involved because the invention related to an abstract idea.In so ruling, the court undid decades of strong patent protection by throwing open the floodgates to categories of U.S. innovation that would no longer qualify for patent protection. Twenty years ago, America largely protected computer software and emerging technologies while Europe and Asia did not. Since then, patent protection in Europe and Asia has advanced, while the U.S. has taken a huge step backwards with Alice and cases that followed.The result is that many countries are now more competitive than ours in promoting innovation.
This is ridiculous. Yes, China is doing a lot more patenting than before, but as an anti-competitive tool to block American companies. There is no sign that software patents is why the US is somehow "less competitive" than before. Rader is making that up.
Now the phrase abstract idea does not appear in any patent law that Congress enacted. Despite the fact that almost every invention starts with an abstract idea, the Supreme Court declined to define what the phrase means. It noted that it need not labor to delimit the precise contours of the 'abstract ideas' category in this case.
This is hogwash. The reason abstract ideas are not patentable is because the whole point of the patent system was supposed to be to get inventors to reveal the details of what their invention was so that others could make use of it once the patent expired. But there is no invention of an "abstract idea." The Supreme Court was right to reject it because the idea of patenting abstract ideas was a huge drain on innovation in the first place, where you just had a bunch of lawyers throwing around dumb ideas, adding "on a computer" or "on the internet" and then being able to shakedown companies that actually innovate.
American companies are now struggling to keep up with foreign competitors like Huawei and Samsung, which benefit from patent rights in their home countries that no longer exist in our own. As Senators Coons and Tillis observed, high-tech inventors are receiving patents in Europe and China, but not in the United States. Why should we cede our competitive edge at this critical juncture?
Oh bullshit. They're not struggling to keep up with foreign companies because of patents, but because of some bad decisions in building out their own product suite -- which is part of the reason that Cisco has been pushing efforts to ban Huawei around the world, rather than fighting on an even playing field. It's not about the patents.
Despite bipartisan support, however, efforts to change the law stalled. Some might think that, in the midst of a global pandemic, Congress was right to put patent rights on the backburner. But the current crisis only highlights the need for reform. Under our current approach to patent eligibility, diagnostic tests for Covid-19 cannot be patented, so the resources and incentives to develop new tests in the U.S. were weak and unready.
Yes, Congress was right to put patent reform on the backburner (and it happened way before COVID-19 because there wasn't nearly enough support in Congress for the bill). And, again, patents are not the incentive to create tools to fight COVID-19. Public health, public safety, and the market are all doing a pretty fucking good job creating incentives. The idea that we were unready because of weak patent laws is complete and utter hogwash.
Besides, after nationwide shutdowns and an uncertain path to reopening the economy, American industries could use a break.
A break... meaning tons of new patent trolls shutting down the actual innovative companies by a bunch of patent lawyers shaking down the system to buy new yachts? Fuck that.
One hope still remains: the Supreme Court, which has the power to clean up its own mess. One of the Federal Circuit's most egregious decisions, Chamberlain Group v. Techtronic Industries, is now on appeal to the Supreme Court. In a decision that Senator Tillis called madness, the Federal Circuit put a garage-door opener patent under its sledgehammer. If garage-door openers are too abstract for patenting, what else is left? As the patent owner in the Chamberlain case put it, this is a patent emergency.
As Judge Rader well knows, he is totally misrepresenting the Chamberlain case. The patent was not on a "garage door opener" but a specific type of garage door opener, in which one of the key claims was for "wirelessly communicating status information about a system." THAT is the "abstract idea" that should not be patentable, because of course that shouldn't be patentable. We didn't need a patent system to add a fucking wireless communication system to a garage door opener, Randall. Get real.What the CAFC, correctly (I should add), found was that if you took out abstract ideas like that, there was nothing inventive at all going on here. This was just combining a few well known ideas into a new use case. And, sure, that should be rewarded, but that's how the market works. It gets rewarded in the market. Make a better mousetrap, etc. etc. etc. Not hire a lawyer to patent your better mousetrap and then wait for others to make the same obvious mixing and matching of off the shelf technology and sue them out of existence.This is patent maximalist gaslighting.

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posted at: 12:00am on 21-Oct-2020
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Nintendo Nukes 'Zelda' Fan Game, As Per Usual

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I've tried with Nintendo. For some years now, I have both complained about how strict and hamfisted the company is when it comes to allowing fans to express their fandom in the form of fan-created games and content, as well as offered the company advice as to how it could be just a little more cool about all of this. The frustration really starts to boil over when you realize just how much cool content the world could have if Nintendo could figure out some way not to be as protectionist as possible and instead seek out ways to work with fans to allow for this sort of thing. To be clear, as I have said in the past, Nintendo certainly can act this way when it comes to how it treats its fans, but it doesn't have to act this way.But, when you jump at every fan-made work like a toddler on meth jumps at their own shadow, I suppose you just can't help yourself. The most recent evidence that Nintendo isn't changing course comes in the form of a fan-created Zelda game put up on GitHub that Nintendo swiftly got taken down.

Well-known modder Kaze Emanuar, who has been releasing a number of unofficial Nintendo-based projects over the last few years, launched a title called 'The Missing Link' earlier this year. The game made use of the very same engine from The Legend of Zelda: Ocarina of Time, and aimed to bridge the gap between Ocarina, and later N64 title, Zelda: Majora's Mask.The game was available from GitHub, but following the copyright claim, has since been removed.
To be charitable to Nintendo, there is no lawsuit thus far involved in this story. Given that the company has never been litigiously shy, perhaps that's progress of a kind. And, again, Nintendo is well within its rights to take this action. The takedown request itself at least nods at any question as to whether this game would constitute fair use.
"The copyrighted works are the video games in Nintendo’s The Legend of Zelda video game franchise, including without limitation the audio-visual works, story lines, characters, and imagery in The Legend of Zelda: Ocarina of Time (U.S. Copyright Reg. No. PA0000901848), The Legend of Zelda: Majora’s Mask (U.S. Copyright Reg. No. PA0001940271), and others.Nintendo has reviewed the reported material and does not believe it qualifies as a fair use of Nintendo’s copyright-protected work."
All true, except that isn't where this story has to end. There are plenty of ways that Nintendo could sanctify these sorts of fan-made games and content that don't involve taking them down. It could work out some arrangement with the fans who make these fan-games to make them official, thereby alleviating any concern for copyright protection. On the copyright side specifically, the company could simply ignore these fan-games, like plenty of other game studios do. Hell, if it's some monetary corporate itch that requires scratching, Nintendo could even build a fan-creator program that allowed it to make some money and have curation abilities over these expressions of adoration turned into gaming content.But, no. Instead, out comes to the copyright takedown request, down goes the game, and the world is an objectively slightly worse place for it.

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posted at: 12:00am on 21-Oct-2020
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Judge Shuts Down Vallejo PD's Illegally-Obtained Stingray

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For the moment, police officers in Vallejo, California aren't allowed to use their cell site simulator. A tentative ruling [PDF] issued by a judge says the city violated the law by approving the purchase of a Stingray device without instituting a privacy policy governing its use -- a policy explicitly approved by the city council and subjected to public scrutiny prior to adoption.The case challenging the new device's purchase and use was brought by Oakland Privacy. Matthew Gauriglia of the EFF breaks down the multiple ways the city and its PD skirted their obligations to Vallejo residents.

The City Council assembled via teleconference in spring 2020, amidst a state-wide pandemic related shelter-in-place order, to vote for the purchase of this controversial piece of surveillance equipment. It did so without adequately obtaining input from the public.What’s worse, the city council approved the purchase in violation of state law (S.B. 741) regulating the acquisition of such technology. [...] The law prohibits local government agencies from acquiring cell-site simulators without the local governing body approving a specific privacy and usage policy that “is consistent with respect for an individual’s privacy and civil liberties.” This policy needs to be available to the public, published online, and voted on during an open hearing.
The Vallejo city council dodged its state law obligations to expedite the acquisition of the device, seemingly taking advantage of restrictions on gatherings to minimize objections from the public. That decision has led to this (tentative) decision: no tech toy for city cops until it follows the steps above.This sort of deception is far too commonplace when it comes to law enforcement agencies and the acquisition of controversial tech. Assertions that law enforcement needs this secrecy to stay a step ahead of criminals often go unchallenged. This continues to happen even though Stingrays and other tech (like phone-cracking tools) have been in the public eye for years and their capabilities discussed openly -- not just by civilians, but by government agencies and officials.It seems pretty short-sighted to take steps like these to dodge controversy. Bypassing obligations to the public tends to result in greater public scrutiny once these actions are exposed or, as in this case, directly challenged as violations of the law. This (tentative) victory for Vallejo-area transparency activists shows the city would have been better off doing it all by the book in the first place. Now it's going to have to retrace its steps and no longer has a COVID lockdown to abuse to minimize complaints from the pesky peasants.

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posted at: 12:00am on 20-Oct-2020
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COVID-19 Is Driving The Uptake Of Chess -- And Of Surveillance Tools To Stop Online Players Cheating

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Techdirt has been noting some interesting tech trends arising out of the increasing number of people who work and study from home because of COVID-19. One that few of us saw coming is a greatly increased enthusiasm for playing chess. That would be a good thing, except that life is never simple, as the Guardian reports:

Chess has enjoyed a huge boom in internet play this year as in-person events have moved online and people stuck at home have sought new hobbies. But with that has come a significant new problem: a rise in the use of powerful chess calculators to cheat on a scale reminiscent of the scandals that have dogged cycling and athletics. One leading 'chess detective' said that the pandemic was "without doubt creating a crisis".
When life moves from in-person to online, there is a loss of many subtle aspects that arise from being in the presence of other people. Back in May we wrote about a problem in the field of education, where some have concerns that students might be cheating when taking exams online, since there is no invigilator around to check on them. This has led to the rise of remote proctoring services that aim to cast a beady virtual eye over students who are sitting exams. According to the Guardian, similar ideas are starting to enter the world of chess:
At the heart of the problem are programmes or apps that can rapidly calculate near-perfect moves in any situation. To counter these engines, players in more and more top matches must agree to be recorded by multiple cameras, be available on Zoom or WhatsApp at any time, and grant remote access to their computers. They may not be allowed to leave their screens, even for toilet breaks.
Other approaches include tracking the movements of players' eyes, to see if they are looking away with suspicious frequency, and algorithms that are claiming to be able to spot "deviation from the proclivities of an honest human player". The fact that the once-staid world of chess is resorting to these kinds of advanced surveillance techniques is a further indication of the extent to which COVID-19 is changing the world, and deepening digital technology's impact on our lives.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 20-Oct-2020
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This Week In Techdirt History: October 11th - 17th

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Five Years AgoThis week in 2015, while one judge was calling everyone's bluffs about encryption, James Comey was insisting that "dozens" of terrorists have eluded the FBI because of it and Chuck Grassley was telling the DOJ to get back to the fight, and some were noting how just because the administration had said it wouldn't pursue backdoors didn't mean the next one wouldn't change course. Plus, we noted that the lack of fervor from the NSA on the issue simply suggested that they already had a way into people's phones. Meanwhile, the appeals court handed a clear fair use win to Google over book scanning, while the battle over the Happy Birthday copyright was gearing up for its next phase.Ten Years AgoThis week in 2010, we looked at the rapid rise of copyright shakedown operations in the US — in fact, there were so many that they were starting to fight with each other over trademarks on their very similar names and copy ceach others' websites. Meanwhile, more countries were reacting to ACTA and Ron Wyden was seeking answers on whether it would impact US law (which independent analysis suggested it absolutely would) — but though all this was leading to some growing reluctance among US officials, we doubted that they would ever really decide not to sign the agreement.Fifteen Years AgoThis week in 2005, the instant messaging wars were in full swing and Microsoft and Yahoo were finally managing to provide some basic interoperability. RealNetworks and Microsoft settled their antitrust fight, more and more people were speaking up about patent trolls, and we looked at how it was the recording industry's obsession with DRM that helped make Apple so powerful, to the industry's chagrin.

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posted at: 12:00am on 18-Oct-2020
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Content Moderation Case Study: Apple Removes Games Containing Confederate Flags (June 2015)

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Summary: On June 17, 2015, South Carolina native Dylann Roof entered a church in Charleston, South Carolina and killed nine Black attendees. Roof was an avowed white supremacist as his consequent convictions on hate crime charges attest. Roof also published a racist manifesto to his website prior to the attack, along with photos of white supremacy emblems and the Confederate flag.

Shortly after this tragic act of racially-motivated violence, app developers noticed their apps had been removed by Apple. One of the first to notice was Hexwar Games, which noticed its Civil War strategy game was no longer available in the App Store.More developers reported the same thing happening to their titles -- all of which were strategy/simulation games that dealt with the Civil War. This action followed Apple CEO Tim Cook's public statements against the display of the Confederate flag, widely-viewed as a symbol of white supremacy.Cook's words became the App Store's actions. Games containing Confederate flags began disappearing, even if they didn't appear to violate Apple's ban on apps using the Confederate flag in "offensive or mean-spirited ways." Developers sought more clarification on the policy and reinstatement, but Apple continued to purge the store of games and apps, appearing to disregard complaints about the removal of historically-accurate games.Decisions to be made by Apple:
  • What context should be considered when determining what constitutes an "offensive" use of the Confederate flag?

  • Considering an argument often made for display of the flag (in more offensive settings) is "historical value," does allowing its use in historical representations just create more opportunities for bad faith arguments by the flag's defenders?

  • Should app developers using the flag in a historical context be required to post disclaimers, etc. explaining they're aware of its racist connotations and the use here in apps like these is purely for historical accuracy?

Questions and policy implications to consider:
  • Does reacting quickly to an issue that was only tangentially-related to the Charleston shooting put Apple in the position of having to react even more quickly (and perhaps more erratically) when the next inevitable tragedy rolls around?

  • Is there a baseline established for determining what content is offensive? Is it objective or left up to App Store moderation to decide what crosses the line on a case-by-case (or, like this one, incident-by-incident) basis?

Resolution: Apple swiftly removed apps containing depictions of the Confederate flag in the wake of the racially-motivated shooting. More clarification from Apple arrived a few days later. The company began working with affected developers to get their apps reinstated. Along with the ban on use of the flag in "offensive" ways, Apple instituted a new rule forbidding the use of the Confederate flag in app icons or any "prominent display" in screenshots.

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posted at: 12:00am on 17-Oct-2020
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Another Anti-Section 230 Bill? Sure, Why Not?

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Because there haven't already been enough attempts by Congress this year to attack free speech on the internet, here's another one. Rep. Ted Budd has introduced yet another bill to wipe out Section 230 and undermine free speech online. Of course, he's really just putting his House stamp on the ridiculous and unconstitutional Senate bill released earlier this year by Senators Hawley, Rubio, Loeffler, Cotton and Braun that we took apart at the time. I'm not going to go over all the reasons the bill is ridiculous and unconstitutional. We covered that when it was released in the Senate.But Budd's "statement" about the bill deserves to be picked apart because it's utter lunacy.

Recent acts of political censorship by Twitter and Facebook are a disgrace. Big Tech bias has gone too far in suffocating the voices of conservatives across our country. If these companies want to continue to receive legal protection, they should be forced to play by a fair set of rules in good faith. I'm extremely proud to join Sen. Hawley in this fight.
Everything about this is wrong. Twitter and Facebook are not "censoring." They are moderating. They are saying there is certain speech they don't want to host, and this is their right, just like Fox News or the NY Post get to spew one sided news and the government cannot do anything about it. But they can't demand that other private companies help them promote that nonsense. That's not censorship. It's moderation or discretion. And it's protected by the 1st Amendment. You know, the thing that Rep. Budd swore to protect and uphold.Imagine if Congress introduced a bill saying that Fox News actually had to be "fair and balanced" and be more positive towards Democrats and Joe Biden. Republicans like Budd would be screaming about how that was an unfair and unconstitutional infringement of Fox News' 1st Amendment rights. And they'd be right. But the desire to ignore all that and compel speech from social media companies just demonstrates that elected officials like Budd are not coming from a place of principled support of the Constitution or free speech. Rather they are pathetic simpletons who think that they can abuse their power to force companies to promote their bullshit.That's not how it works, and we shouldn't let grifters in Congress get away with pushing such nonsense. Rep. Budd should be ashamed that he's shitting all over the 1st Amendment while pretending to support free speech. His constituents should think deeply about why they've elected someone so willing to sell out the 1st Amendment.

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posted at: 12:00am on 17-Oct-2020
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We Interrupt This Hellscape With A Bit Of Good News On The Copyright Front

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We've written about this case - or rather, these cases - a few times before: Carl Malamud published the entire Code of Federal Regulations at Public.Resource.org, including all the standards that the CFR incorporated and thus gave the force of law. Several organizations that had originally promulgated these various standards then sued Public Resource - in two separate but substantially similar cases later combined - for copyright infringement stemming from his having included them.In a set of really unfortunate decisions, the district court upheld the infringement claims, finding that the standards were copyrightable (and also actually owned by the standards organizations claiming them, despite reason to doubt those ownership claims), and that Public Resource including them as part of its efforts to post the law online was not a fair use. But then the DC Circuit reversed that decision. While it generally left the overall question of copyrightability for another day, it did direct the district court to re-evaluate whether the publication of the standards was fair use.Now back at the district court, the cases had proceeded to the summary judgment stage and were awaiting a new ruling for the court. One case still remains pending - ASTM v Public.Resource.Org - but the other one, American Educational Research Association et al. v. Public.Resource.Org, has now been dismissed by the plaintiffs with prejudice. Effectively that means that Public Resource wins and can continue to host these standards online. Which is good news for Public Resource and its users. But it does still leave anyone else's ability to repost standards incorporated into law up in the air. Hopefully when the court eventually rules in the remaining case it will find such use fair, and in a way that others can similarly avail themselves of the ability to fully publish the law.

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posted at: 12:00am on 16-Oct-2020
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Take-Two Opposes Trademark For An Entertainment Company Running An Axe-Throwing Facility

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When it comes to my writing about trademark and intellectual property issues, there is perhaps no more flummoxing company than Take-Two Interactive. Why? Well, because the company is simultaneously the victim of a ton of stupid disputes, and also a purveyor of stupid disputes. On the one hand, we've defended Take-Two when it has been the victim of spurious claims brought against it by The Pinkerton Agency, Lindsay Lohan, and a handful of tattoo artists over athlete depictions in video games. On the other hand, we've slapped back at Take-Two when it has taken down modding tools for its games that have been around for years and years, or when the company decides to file lawsuits over fan-projects. The point is that when it comes to the pain brought by overly protectionist IP activities, Take-Two is a company that should know better, but acts as though it doesn't.This can often times go to ridiculous lengths, such as when Take-Two opposes the trademark for Rockstar Axe Throwing, LLC, because "Rockstar."

Applicant Rockstar Axe Throwing filed its application in Class 41 for “Entertainment in the nature of axe throwing competitions; Instruction in the nature of hatchet and axe throwing lessons; Providing sports facilities for hatchet and axe throwing. Take-Two Interactive is “a leading worldwide developer, marketer, and publisher of interactive entertainment, including software, video games, computer games, mobile games,” and other goods and services. Rockstar Games is a subsidiary of Take-Two.
That paragraph is really all you need to know. These companies aren't in the same industries, aren't competing for customers, and the existence of the defendant is wholly unlikely to result in any customer confusion. Axe throwing: need we say more?But, just to cover all of the bases, Take-Two also complains in its opposition about the Rockstar Axe Throwing, LLC logo.
Take-Two has marks that comprise or contain “the term ROCKSTAR and/ or prominently featuring the letter ‘R’ combined with a star design, used alone or with other words or designs...
The logos for the two companies aren't similar. Like, at all.

Argue those logos are similar if you want, but you're wrong, you know you're wrong, and you're probably in need of psychiatric care. On top of their being dissimilar, there is that whole "Axe Throwing" text right in the logo. If that isn't enough to ward off anyone who might wander into an axe-throwing facility thinking it was associated with Grand Theft Auto, I can't imagine what would be.This, again, is where it gets really frustrating. There is zero reason for Take-Two to have undertaken this opposition. Zero. And yet it did, despite being on the receiving end itself of other ridiculous attempts at IP maximilism. Why?

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posted at: 12:00am on 16-Oct-2020
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How Linus Torvalds Invented Today's Work From Home Paradigm In 1991

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Working from home is beginning to move from being a necessary but temporary way of achieving social distancing in offices, to a radical shift in how many companies will operate. Until now, most of the evidence of that change has been anecdotal. But a Twitter thread by Chris Herd, who is CEO of FirstbaseHQ, which "lets you supply, finance and manage all the physical equipment your remote teams need to do great work at home", provides some fascinating statistics on the scale of the shift to working from home. Herd says he has talked around 1000 companies over the last six months about their plans for remote work. One trend is that corporate headquarters are "finished", he says: companies will cut their commercial office space by 40 to 60%, with people working from home for two to four days each week. Some 30% of the companies Herd talked to say that they intend to get rid of offices completely, and move fully to remote working.Some of the reasons for this shift are obvious. Things like increasing worker satisfaction by avoiding stressful daily commuting, and enabling them to participate in family life during the entire day through flexible working patterns. Slashing office costs is a major factor for the companies, but also cited is the reduction in the pollution generated by traditional office working. However, the main driver for a shift to remote working may be surprising:

The first reason they are going remote-first is simple -- it lets them hire more talented peopleRather than hiring the best person in a 30-mile radius of the office, they can hire the best person in the world for every role
Traditional ways of running a company have made it hard to bring about this change. But there is one sphere whose stunning success is built on this very shift. The world of free software and open source has embraced distributed teams working at home for nearly 30 years. This has allowed projects to select people on the basis of their skills, rather on their availability for a local office. It also means that people can work on what they are best at, and most interested in, rather than on what their local team needs them to do. As a result, open source software has gone from a bit of coding fun in the bedroom of a Finnish student, Linus Torvalds, to the dominant form of software in every field, with the lone exception of the desktop. Its success has also inspired a range of related movements, such as open access, open data, open science and many more.What's remarkable is that Linus did not set out to create this new kind of global, distributed software development methodology. It simply evolved from the time he placed his first, rough version of the Linux kernel on an FTP server in Finland, and invited people to download it freely. The crucial step was his willingness to accept suggestions to improve the code from anyone, provided they were good ones. That encouraged people to join the project, because they knew that there was no traditional business hierarchy based on seniority, just a meritocracy, where their suggestions would be accepted if their work was demonstrably better than the existing code. The companies that will thrive most from today's epochal shift to working from home will be those that are willing to implement similar ideas to those of Linus from 30 years ago, transposed to a general business context.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 15-Oct-2020
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Content Moderation Case Study: Handling Off Platform Harassment On Platform (June 2020)

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Summary: Dealing with harassment of users is always a challenge for internet platforms -- and that is especially true for platforms that are focused on live streaming. For many years there have been accusations around sexual harassment problems for female Twitch streamers. Going all the way back to 2012 when a Twitch streamer argued that sexual harassment was part of the culture of streaming (saying this is a community that's, you know, 15 or 20-years-old and the sexual harassment is part of a culture) there have been ongoing questions about how Twitch should deal with such behavior both on and off the platform.Not surprisingly, there have been many reports of on-platform harassment for Twitch streamers to the point that some reporters have noted it is quite easy to seek out harassment and find it on the platform. In 2018, Twitch put in place new rules for dealing with harassment on the platform and it also provides a variety of tools for managing harassment within Twitch's chat feature.More recently, another issue has been raised: how should Twitch handle harassment that occurs off-platform? Some users started collecting reports of harassment and sexual abuse that were occuring connected to Twitch, and it was notable that many of them were not happening directly on the platform. According to an article at The Verge many of the reported claims of harassment and abuse were people who met via Twitch or were popular Twitch users, who were accused of using their position of power to harass others.

It is difficult enough to deal with harassment in real time on a streaming platform (where the incidents come and go), but figuring out how to deal with harassment that happens off-platform is even more fraught. However, in June of 2020, many Twitch streamers engaged in a 24-hour blackout in protest over what they felt was Twitch's failure to act regarding many of the accusations.Decisions to be made by Twitch:
  • How should it handle credible claims and accusations of abuse and sexual harassment that occur off-platform between users of Twitch?
  • How much responsibility should Twitch take in dealing with off-platform behavior?
  • What resources are necessary for investigating off-platform behavior?
    • How should serious claims be verified?
Questions and policy implications to consider:
  • Is it proper for conduct outside of an internet platform to impact usage of that platform?
  • Will serious accusations against popular users of a platform reflect poorly on the platform?
  • Will widespread accusations of sexual abuse among users of the platform create an unwelcoming environment?
  • Can on-platform policies impact off-platform behavior?
Resolution: After this issue got lots of attention Twitch announced that it was investigating the various claims of harassment and trying to prioritize the most serious.
We want to provide an update on our investigations into the recent allegations of sexual abuse and harassment involving Twitch streamers and actions we're taking. We are reviewing each case that has come to light as quickly as possible, while ensuring appropriate due diligence as we assess these serious allegations. We've prioritized the most severe cases and will begin issuing permanent suspensions in line with our findings immediately. In many of the cases, the alleged incident took place off Twitch, and we need more information to make a determination. In some cases we will need to report the case to the proper authorities who are better placed to conduct a more thorough investigation. For those who've come forward and would like to share additional information, and to anyone who hasn't shared their experience and wants to do so, you can report confidentially through the reporting tools on each streamer's channel page.
The company also promised to continue to improve the tools on-platform for combating harassment and abuse. Twitch's founder and CEO Emmett Shear also sent an email to the entire company about the issue and the importance of building an experience that is community-centered, safe and positive for all.Days later, the company banned a popular user who was accused of harassing other Twitch streamers as well as some other users who had been similarly accused. At least one suspended user has since insisted that he was innocent and suggested he was working with lawyers to appeal the suspension.

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posted at: 12:00am on 15-Oct-2020
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Esports March On: Nike Jumps In With Glitzy Ad While Forbes Ponders If Esports Will Be Our New Pastime

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Esports continues to march down the path toward greater adoption. As we've detailed over many posts, esports had already become a cultural thing heading into 2020. But if anyone expected a regression back to IRL sports, the COVID-19 pandemic essentially cemented the cultural adoption of competitive video gaming. With even greater adoption by IRL professional sports leagues, and with many widely used social media platforms getting in the game and accelerating all of this, esports have continued to hit impressive milemarkers that showcase just how big this is all becoming.It's not slowing down. Signs of that acceleration can be seen first in a glitzy advertisement Nike has put out as it too jumps further into esports gaming.

The shoemaker has released its first-ever esports ad, coming out of Nike Greater China, showcasing how these esports athletes get their minds and bodies prepared for the challenge.The ad shows gaming superstar Uzi – who was recently the first esports athlete to be signed by Nike – completely a rigorous (and highly entertaining) training camp. According to Nike, the ad is a reminder for these gamers to remain active and healthy in order to stay on top of the challenges of gaming – which can see top players putting in 16-hour days six days a week.
Nike jumping into this is no small thing. And, while this is an ad for the Chinese marketplace, it would be quite surprising given esports' trajectory if we didn't see this sort of thing in the West before long.Along those lines, Forbes has also come out with an article asking if esports will soon be America's chief pastime.
Compared to America’s most popular pro sports, football, basketball and baseball, Esports is small, but it now ranks with popular sports entertainment like wrestling. In 2019, according to esportsobserver.com, over $211M was awarded from over 4,000 Esports tournaments, an increase of 29% from 2018’s $163M prize pool....Gaming is universal. The rules of the games are simple. It is simply the essence of competition. When produced for television, broadcasters can support the action with commentary, stating objectives for the game on-screen. Like golf, knowledge of the games might not be necessary at all as a games player base might be large enough to sustain eSports broadcasts, making non-player spectators a bonus, learning rules as they watch. Segments can support rules and strategies and highlights.
Will esports reach the vaunted levels for America's attention that baseball, basketball, and football have achieved? It's certainly on that trajectory. And the fact that publications like Forbes are even asking this question of a sport that has existed widely for less than two decades is telling. What esports really has to avoid is becoming the new World Series of Poker, where the fad fizzled out after a few years and is now relegated to niche status, albeit still popular.But as the post points out, gaming is becoming universal. It's already overtaken other forms of entertainment as the dominant force among young people. Why that wouldn't translate into even further spectatorship of esports tournaments, now propelled by major brands and funding, is a question I cannot answer.

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posted at: 12:00am on 14-Oct-2020
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If Something Is Advertised As A Knockoff Product... Is It No Longer Counterfeiting?

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People throw around a variety of terms that sometimes need to have more specific meanings. When talking about physical goods, when people talk about "knockoffs" or "counterfeits" they're usually referring to a trademark issue. And, in some sense, this is what trademark is supposed to be about. For many years we've argued that trademark should not be lumped in with patents and copyrights, as the concept, purpose, intent, and even Constitutional underpinnings are entirely different. It's extremely frustrating to see people lump in patents, copyrights, and trademarks as "intellectual property" as if they were all similar. They are not. And trademarks are especially different.Indeed, we've always said that (unlike with the other two) trademarks are mostly a consumer protection law, so that you know who is actually making the things you're buying, and you know the origin of it. That is, we let Coke have a trademark on the Coca-Cola branding so that consumers don't get tricked into buying something that isn't Coke, while believing it is. This is why a key part of trademark law has always been the "likelihood of confusion." If there's no likelihood of confusion, than there isn't a trademark violation.But here's an interesting question: if someone is making a counterfeit product... is it still violating trademark laws against counterfeiting if buyers know it's counterfeit? A recent 9th Circuit Court ruling suggests... perhaps not. The case is not about this issue directly, but is about two separate companies who each (independently it appears) came up with products called "Eye Dew." One, Arcona, created an eye cream that in a tall cylindrical silver bottle. Arcona registered a trademark on the name. Around the same time (or even possibly a bit earlier), a different company, Farmacy Beauty, developed its own eye cream, also named EYE DEW. The packaging of the two products looks very, very different:


The ruling in the case finds that because the Lanham Act requires there to be a likelihood of confusion, and people are unlikely to be confused between these two products, then there's no counterfeiting claim. The court notes that while it has been recognized that a pure trademark infringement claim requires a likelihood of confusion, the 9th Circuit had never ruled directly on the question of whether or not a counterfeiting claim does, even though both stem from the Lanham Act. However, noting that everyone agrees that trademark claims require it, and the plain language of the statute says so, the court confirms:
We thus hold that a counterfeit claim requires a showingof likelihood of confusion under Section 1114.
And while the case is not about this, it raises a somewhat fascinating question first posed by law professor Mark Lemley. He notes that under this ruling, brands may not be able to go after obvious knockoffs if the knockoffs don't confuse anyone:
This is interesting on a few levels. First off, we've highlighted many studies showing that the vast majority of people buying knockoff products know they're knockoffs, and they buy them aspirationally -- knowing they can't afford the real thing, but wanting to build themselves up to buying the real thing, by first buying a knockoff. We've used those studies to question the common wisdom (often used by customs and border patrol and ICE) about the "dangers" of counterfeits. If no consumers are fooled or harmed, then what's the issue? And that's especially true if they weren't going to purchase a legitimate version in the first place.But this raises an even more interesting question to me: under this ruling, could a company not just make cheap knockoffs of a famous brand's products, but then avoid some level of liability by clearly advertising them as knockoffs? I wouldn't suggest doing that without a huge legal budget, but a strong argument can be made that if you made it abundantly clear that your fake Louis Vuitton handbag was a fake Louis Vuitton handbag, and that buyers could not buy it without understanding that fact -- then there might not be any claim. There would be no likelihood of confusion. There would be no harm.It's such an intriguing idea, I'm now kind of hoping that someone (again, someone with fantastic trademark/counterfeiting lawyers, and a large legal war chest) tests this out. If you do, send me some sample counterfeit merchandise as a thank you.

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posted at: 12:00am on 14-Oct-2020
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This Week In Techdirt History: October 4th - 10th

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Five Years AgoThis week in 2015, the TPP negotiators pulled an all-nighter to finish the latest draft of the agreement, though of course it still remained secret. An announcement from New Zealand, however, confirmed that it would extend copyright terms and lock-in terrible anti-circumvention rules, leading us to reiterate that it's not a "free trade" agreement but rather a protectionist one. Then, at the end of the week, Wikileaks released the final intellectual property chapter (and it was basically as bad as expected).Ten Years AgoBefore the TPP, it was ACTA. This week in 2010, negotiators announced that ACTA was nearly complete and that the final text would be released by the end of the week — yet somehow (shocking!) the MPAA was able to announce that it was in favor of the current text it wasn't supposed to have seen. Many in the EU Parliament were not at all happy about the agreement, and in Mexico the Senate actually voted unanimously to remove the country from negotiations. When the text was released on Wednesday, it had shed some of the worst aspects of earlier versions but was still full of problems, and for some reason the negotiators were still obsessing about secrecy in their briefings about the now-public text.Also, just to hammer home how long this thing's been going on, here's a 2010 post about some of the early blows in the fight between Oracle and Google.Fifteen Years AgoThis week in 2005, the Grokster decision was just one factor in the messy fight over the criminality of writing software, the USPTO was busy producing anti-piracy propaganda, and DRM-makers were espousing the importance of DRM even though, as usual, numbers suggested that file sharing is good for sales. The recording industry was demanding too much in its negotiations with tech companies and setting its sites on satellite radio as its new target, not to mention trying out new arguments against fair use. But we saw one great ruling from Australia, where the Supreme Court found that mod-chipping consoles does not violate anti-circumvention laws.

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posted at: 12:00am on 11-Oct-2020
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Content Moderation Case Study: Facebook's Internal 'Hate Speech' Guidelines Appear To Leave Protected Groups Unprotected (June 2017)

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Summary: Facebook has struggled to moderate "hate speech" over the years, resulting in it receiving steady criticism not only from users, but from government officials around the world. Part of this struggle is due to the nature of the term "hate speech" itself, which is often vaguely-defined. These definitions can vary from country to country, adding to the confusion and general difficulty of moderating user content.

Facebook's application of local laws to moderate "hate speech" has resulted in collateral damage and the silencing of voices that such laws are meant to protect. In the United States, there is no law against "hate speech," but Facebook is still trying to limit the amount of abusive content on its site as advertisers flee and politicians continue to apply pressure.Facebook moderators use a set of internal guidelines to determine what is or isn't hate speech. Unfortunately for many users, the guidelines -- which they never saw before ProPublica published them -- result in some unexpected moderation decisions.Users wondered why hate speech targeting Black children was allowed while similar speech targeting, for instance, white men wasn't. The internal guidelines explained the factors considered by moderators, which led exactly to these seemingly-inexplicable content removals.According to Facebook's internal guidelines, these categories are "protected," which means moderators will remove "hateful" content targeting anything on this list.
  • Sex
  • Race
  • Religious affiliation
  • Ethnicity
  • National origin
  • Sexual orientation
  • Gender identity
  • Serious disability/disease
And this is the list of categories not considered "protected" by Facebook:
  • Social class
  • Occupation
  • Continental origin
  • Political ideology
  • Appearance
  • Religions
  • Age
  • Countries
Critics pointed out the internal standards would seem to lead directly to harassment of groups supposedly protected (Black children), while shielding groups historically-viewed -- at least in the United States -- as not in any need of additional protections (white men).This seemingly-incongruous outcome is due to the application of the rules by moderators. If a "protected" class is modified by an "unprotected" category ("Black" [race/protected] + "children" [age/unprotected]), the resulting combination is determined to be "unprotected." In the case of white men, both categories are protected: race + sex. What seems to be a shielding of a pretty protected group (white men) is actually just the proper application of Facebook's internal moderation guidelinesIn response to criticism about outcomes like these, Facebook pointed out it operated globally. What might be considered a ridiculous (or even harmful) moderation decision here in the United States makes more sense in other areas of the world where white men might not make up a large percentage of the population or have historically held a great number of positions of power.Decisions to be made by Facebook:
  • Should content be removed if it conveys hateful rhetoric against certain groups or individuals even if it doesn't specifically violate the internal guidelines?
  • Should context be considered when moderating posts that violate the internal guidelines to ensure users who are spreading awareness/criticizing other users' hateful speech aren't subjected to the same moderation efforts or account limitations?
  • Which first principles should Facebook be operating on when creating anti-hate policies, and are these policies holding up those principles in practice?
Questions and policy implications to consider:
  • When moderating hate speech, should more discretion be used by moderators to ensure better protection of marginalized groups?
  • Would altering or expanding the scope of the internal guidelines result in users switching to other social media services?
  • Do seemingly inconsistent internal rules (i.e., moderation that protects white men while leaving Black children open to abuse) confuse users and/or result in loss of advertising revenue?
Resolution: Facebook moderators continue to use lists like these to make decisions about perceived "hate speech." The company continues to consider all stakeholders, including foreign governments who have passed "hate speech" laws that surpass what the site's internal guidelines already target for removal.

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posted at: 12:00am on 10-Oct-2020
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DOJ Seizes Domains, Claiming They Pushed Iranian Disinformation; Should Raise 1st Amendment Concerns

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For about a decade now we've been questioning why the government is allowed to seize domains over claims of illegal behavior happening on a website. It seems to us that seizing a website is the equivalent of seizing a printing press or books -- both of which would be deemed clear 1st Amendment violations. Unfortunately, even when those seizures have proven to be for made up reasons, no one has been able to challenge the underlying ability of the government to seize domains. And now it seems to happen all the time. And even if you believe the websites in question are doing something bad, seizing the websites is problematic.The latest such case is the Justice Department announcing that it had seized a bunch of domains pushing disinformation on behalf of Iran's Islamic Revolutionary Guard Corps.

The United States has seized 92 domain names that were unlawfully used by Iran's Islamic Revolutionary Guard Corps (IRGC) to engage in a global disinformation campaign, announced the Department of Justice.According to the seizure documents, four of the domains purported to be genuine news outlets but were actually controlled by the IRGC and targeted the United States for the spread of Iranian propaganda to influence United States domestic and foreign policy in violation of the Foreign Agents Registration Act (FARA), and the remainder spread Iranian propaganda to other parts of the world. In addition, the seizure documents describe how all 92 domains were being used in violation of U.S. sanctions targeting both the Government of Iran and the IRGC.
According to reporter Kevin Collier, who used the Wayback Machine to check out some of these sites, they seemed like mostly junk with little US social media presence.
Even so, and even if we're concerned about foreign disinformation campaigns targeting the US, it still makes me nervous when the US government feels that it can just go in and seize entire domains. It strikes me as the thing that can create blowback as well. The US has certainly been involved in foreign propaganda as well -- and would we want foreign governments seizing the assets of, say, Voice of America?

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posted at: 12:00am on 10-Oct-2020
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ICE Spent Your Tax Dollars Dragging A Journalist Through The Internet Sewer Over A Mistake She Apologized For

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Law enforcement officers protect their own. Even when they shouldn't. They are quick to react when one of them is slighted and they do so knowing their position as arbiters of law affords them more protection against internet randos than the little people they're supposed to be serving.But something that gets lost in these far-too-common reactions is that this is how taxpayers' money is being spent: on vindictive actions that could have been handled with a 30-second statement or a press release that might take all of 20 minutes to compose.But instead of letting things go and realizing their position of power is probably all the response that's needed, tax dollars are spent converting hurt feelings into investigations of private citizens who managed to offend the powers that be. Ken Klippenstein has obtained documents from a FOIA request (and the de rigueur FOIA lawsuit) that shows ICE decided to get all investigatory when someone mistook a tattoo on one of its officials for a racist symbol. That this person was a journalist makes it all that more problematic.

In June of 2018, Talia Lavin, then a fact-checker for The New Yorker, found herself in an unusual position for a journalist: She personally became the target of a government agency. She had come under the scrutiny of ICE’s Office of Public Affairs, the public face of the agency that played a central role in President Trump’s crackdown on undocumented migrants.[...]When Lavin saw a tweet from ICE featuring one of its officials, Justin Gaertner, with a cross-shaped tattoo, she wondered if it was the Iron Cross familiar to Nazi iconography. She posted a tweet comparing them. When people began pointing out that it could be another symbol, like a Maltese cross, Lavin promptly removed the tweet. But it was already too late.
ICE first responded with a press release. It was not your normal press release. It accused Lavin (mentioning her name [but misspelled as "Levin") of "baselessly slandering" the "American hero" who worked for the agency. It demanded an apology and a retraction from Lavin and The New Yorker. Following ICE's public flogging of Lavin, she became a target for vitriol and abuse by white supremacists and alt-right figureheads. Fox News called her a "little journo terrorist."Eye for an eye and all that, I guess. You'd think ICE would have been satisfied with the shitstorm it had stirred up. It provoked a response and got some of what it wanted. Lavin not only apologized but she resigned from The New Yorker.ICE's main focus -- according to the documents obtained by Klippenstein -- was securing the future of the official pointed out in Lavin's since-deleted tweet. The Public Affairs office began burnishing the official's war record and claimed to have evidence of credible threats to the official's life. But the only "threat" detailed in email threads was one from someone responding to Lavin's tweet, stating that the person wished whoever had wounded the official in combat "would've finished the job." Cue a whole bunch of government gears, all grinding tax dollars into salve for skin-deep scratches.
“HSI Tampa will be carefully assessing the twitter based threats and will take appropriate action,” an HSI official replied. “Looping in AD [Assistant Director] Ip for C3 [ICE Cyber Crimes Center] support. HSI Tampa will be submitting a SIR [Significant Incident Report] shortly.”
More remarkably, the email communications indicate ICE may never have seen Lavin's tweet before it was deleted. ICE's press office -- for all the time it spent making sure its official remained unslighted -- didn't bother preserving the tweet it found so offensive that it issued a press release decrying the person who had published it.One tweet by a journalist containing one innocent mistake (it's no secret white supremacists are drawn to law enforcement positions) led to multiple DHS agencies being apprised of non-credible threats while ICE's public affairs office decided it was in the best interest of the public to publicly attack a journalist for screwing up. It got what it wanted -- a retraction, an apology, and a resignation -- but at what cost?Certainly ICE took a hit to its credibility. It may have been correct about the innocuous nature of the tattoo, but it made its point by turning a journalist into a target for internet pitchforks. This is called "punching down." It could have issued a statement in support of the official and left it at that, but instead, it felt compelled to turn this into a public flogging and an internal investigation handled so sloppily the multi-billion dollar agency couldn't even search the Wayback Machine for the tweet prompting its deluge of unprofessional behavior.

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posted at: 12:00am on 09-Oct-2020
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China Micro-Censors The VP Debate In The Most Hamfisted Way

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It's common knowledge now that the Chinese government heavily censors the access its population has to the internet and information writ large. It's been a decade since China first proffered that its Great Firewall of China was not actually censorship, but was merely a method for "safeguarding" its citizens. Safeguarding them, it seems, primarily from any international criticism of the Chinese regime itself, which sure seems like it's more about safeguarding the government, rather than the citizens. In the subsequent decade, whatever skin China had to weather criticism further sloughed away such that the government is now not only actively pressuring groups and companies within Chinese borders, but actively attempting to affect its censorship outside those borders as well.Whatever else we might want to say about Chinese censorship, it most certainly is not subtle. This was on full display when the government essentially pulled the plug on streams for the American Vice Presidential debate precisely during a segment discussing China's actions on COVID-19.

China’s censors cut off Vice President Mike Pence mid-sentence during the debate with Sen. Kamala Harris when he called out the Chinese Communist Party for its mishandling of the coronavirus pandemic.As Pence Wednesday night began to criticize Beijing’s response, saying “China is to blame,” CNN’s feed in China suddenly cut out and the words “no signal – please stand by” appeared over a test pattern.
Again, not subtle. And that's actually kind of important, because if you put yourself in the shoes of a Chinese citizen, it's difficult to imagine that you wouldn't know precisely what is going on here. The real question is whether the transparent censorship in cases such as this is a feature or a bug. If a bug, it doesn't serve Chinese government purposes. It will be clear that the censorship is to mask criticism of the ruling party. If a feature, well, the idea is that China doesn't mind the transparent nature of this exertion of control. It's a muscle flex, in that case.The question is how long can this authoritarian approach expand before the rubber-band reaches its limits and snaps back on the regime. In an increasingly connected and global world, and with China very much wanting play a lead role on that stage, it's own thin-skin may be a high barrier.

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posted at: 12:00am on 09-Oct-2020
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16K COVID-19 Cases Go Missing In UK Due To Government's Use Of Excel CSVs For Tracking

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Yes, yes, you're sick of hearing about COVID-19. Me too. But the dominant force of 2020 continues to provide news, often times with a technology focus. This mismanaged pandemic has already given us an explosion of esports, students gaming remote learning systems, and enough dystopia to make George Orwell vomit in his grave.But to really get your anger bubbles gurgling, you need turn only to the myriad of ways far too many governments have taken a moment that requires real leadership and forethought, and pissed it all down their legs. America appears to be trying to lead the charge in this, with our shining city on the hill mostly being illuminated by headlights of cars carrying sick passengers looking to get tested for this disease. Still, we're not alone when it comes to sheer asshatery. The UK recently managed to lose thousands of COVID-19 cases... because it was tracking them in Excel CSVs.

The issue was caused by the way the agency brought together logs produced by commercial firms paid to analyse swab tests of the public, to discover who has the virus. They filed their results in the form of text-based lists - known as CSV files - without issue.PHE had set up an automatic process to pull this data together into Excel templates so that it could then be uploaded to a central system and made available to the NHS Test and Trace team, as well as other government computer dashboards.
Public Health England (PHE) decided to put all of this information into a file using the XLS format. XLS was first introduced in 1987 and was replaced by the XLSX format over a decade ago. Putting aside the use of Excel to monitor positive COVID-19 cases in a major industrialized nation for just a moment, just the use of an antiquated format managed to lose PHE over sixteen thousand positive cases.How? Well, XLS has restrictions as to how many rows of data it can record.
As a consequence, each template could handle only about 65,000 rows of data rather than the one million-plus rows that Excel is actually capable of. And since each test result created several rows of data, in practice it meant that each template was limited to about 1,400 cases.When that total was reached, further cases were simply left off.
Which means the people that had COVID-19 weren't tracked for contact tracing. The government and its people didn't have a complete picture as to either the total case count for the disease, nor its positivity rate. In other words, the agency in charge of national health failed to keep the nation informed as to its risk exposure because it didn't know how to properly use a common office application that it repurposed to record COVID-19 data.
Labour's shadow health secretary Jonathan Ashworth said lives had still been put at risk because the contact-tracing process had been delayed."Thousands of people [were] blissfully unaware they've been exposed to Covid, potentially spreading this deadly virus at a time when hospital admissions are increasing," he told the House of Commons. "This isn't just a shambles. It's so much worse."
The UK's Health Secretary told the House of Commons that PHE had decided to replace the use of Excel, or what he called a "legacy system", two months ago. But apparently PHE hadn't gotten around to it yet.And still hasn't, actually. In fact, PHE's plan to temporarily fix all of this is... more Excel!
To handle the problem, PHE is now breaking down the test result data into smaller batches to create a larger number of Excel templates. That should ensure none hit their cap.But insiders acknowledge that the current clunky system needs to be replaced by something more advanced that excludes Excel, as soon as possible.
When you hear complaints that governments are not taking this pandemic seriously, this is what they mean.

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posted at: 12:00am on 08-Oct-2020
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Content Moderation Case Study: Suppressing Content To Try To Stop Bullying (2019)

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Summary: TikTok, like many social apps that are mainly used by a younger generation, has long faced issues around how to deal with bullying done via the platform. According to leaked documents revealed by the German site Netzpolitik, one way that the site chose to deal with the problem was through content suppression -- but specifically by suppressing the content of those the company felt were more prone to being victims of bullying.The internal documents showed different ways in which the short video content that TikTok is famous for would be rated for visibility. This could include content that was chosen to be featured (i.e., seen by more people) but also content that was deemed Auto R for a form of suppression. Content rated as such was excluded from the for you feed on Tiktok after reaching a certain number of views. The for you feed is how most people view TikTok videos, so this rating would effectively put a cap on views. The end result was the reach of content categorized as Auto R was significantly limited, and completely prevented from going viral and amassing a large audience or following.What was somewhat surprising was that TikTok's policies explicitly suggested putting those who might be bullied in the Auto R category -- even saying that those who were disabled, autistic, or with Down Syndrome, should be put in this category to minimize bullying.

According to Netzpolitik, employees at TikTok repeatedly pointed out the problematic nature of this decision, and how it was discriminatory itself and punishing people not for any bad behavior, but because of the belief that their differences might possibly lead to them being bullied. However, they claimed that they were prevented from changing the policies by TikTok's corporate parent, ByteDance, which dictated the company's content moderation policies.Decisions to be made by TikTok:
  • What are the best ways to deal with and prevent bullying done on the platform?
  • What are the real world impacts of suppressing the viral reach of any content based on the type of person making the content?
  • Is it appropriate to effectively prevent those you think will be bullied from getting full access to your platform to prevent the possibility of bullying?
  • What data points are being assessed to justify the assumptions being made about Auto R being an effective anti-bullying tool?
Questions and policy implications to consider:
  • When there are strong pushes from policymakers to platforms that they need to stop bullying will it lead to unintended consequences like the effective minimization of access to these platforms by potential victims of bullying, rather than dealing with the root causes of bullying?
  • Will efforts to prevent a bad behavior be used to really sweep that activity under the rug, rather than looking at how to actually make a platform safer?
  • What is the role of technology intermediaries in preventing bad behavior?
Resolution: TikTok admitted that these rules were a blunt instrument that were put in place rapidly to try to minimize bullying on the platform -- but that the company had realized it was the wrong approach and had implemented more nuanced policies:
"Early on, in response to an increase in bullying on the app, we implemented a blunt and temporary policy," he told the BBC."This was never designed to be a long-term solution, and while the intention was good, it became clear that the approach was wrong."We have long since removed the policy in favour of more nuanced anti-bullying policies."
However, the Netzpolitik report suggested that this policy had been in place at least until September of 2019, just three months before its reporting came out in December of 2019. It is unclear exactly when the more nuanced anti-bullying policies were put in place, but it is possible that they came about due to the public exposure and pressure from the reporting on this issue.

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posted at: 12:00am on 08-Oct-2020
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Federal Court Says City Of Baltimore Must Pay Resident Abused By Cops The Other Half Of Her Settlement

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For years, the city of Baltimore has handed out settlements to victims of government abuse. And for years, the city has forced them to remain silent about these settlements. The city tied every settlement to an extensive non-disparagement clause that effectively bought people's silence. If you can't say anything nice, you can't have half your settlement, as the old saying goes.Ashley Overbey chose not to remain silent. She sued the city after her call to report a burglary resulted in officers beating, tasing, verbally abusing, and then finally arresting her. She received a $63,000 settlement that came with strings attached. She yanked some strings in response to the city choosing to disparage her as "hostile" in its public statements about the lawsuit. After her public statements, the city decided she owed it $31,500 for opening her mouth.Her case made its way to the Fourth Circuit Court of Appeals. The Court was not amused by the city's multiple arguments in favor of its extortion tactics.

[W]hen the government (1) makes a police-misconduct claimant’s silence about her claims a condition of settlement; (2) obtains the claimant’s promise of silence; (3) retains for itself the unilateral ability to determine whether the claimant has broken her promise; and (4) enforces the claimant’s promise by, in essence, holding her civilly liable to itself, there can be no serious doubt that the government has used its power in an effort to curb speech that is not to its liking.
It's a First Amendment violation. And an obvious one at that. The case has returned to the lower court and the district court is far less receptive of the government's arguments the second time around. (h/t Baltimore Sun)On remand, the city argued it did not owe Overbey the other $31,500 it clawed back when she chose to speak up about the city's actions. Instead, it claimed the breach of contract claims were time-barred by the statute of limitations, leaving Overbey only the option of recovering nominal damages. And how nominal those damages are!From the decision [PDF]:
Instead, it asserts the “better view” is that Ms. Overbey is only entitled to “nominal damages of one dollar” for an infringement of her First Amendment right to speak, “perhaps coupled with a formal declaration to that effect.”
Wrong, says the district court. The contract was violated by the city, thanks to its egregious First Amendment violations. Subtracting half the settlement caused damages to Overbey equal to the half the city withheld for her violation a contract that was unable to be enforced Constitutionally.
The City owes Ms. Overbey the other $31,500. By its conduct in unconstitutionally enforcing the now discredited clause, the City withheld half of the settlement proceeds. Thus, the civil rights violation caused $31,500 in economic harm.
Overbey will also be collecting interest accrued since October 8, 2014. The court has further comments on the city's inexcusable defense of its inexcusable settlement policy.
The City continues to defend its use of the non-disparagement clause and the “real and substantial questions presented” by facts that led to the settlement agreement in the first place. Therefore, it cites shock that “that the challenge would bear fruit” here and that the serendipity that allowed Ms. Overby’s claim to survive was akin to a “virtual lightning strike.” The seeming inference is that their illegal act should not be undone simply because no one thought, or even suspected, it was illegal at the time. Even if true, all this is beside the point. The City entered the settlement agreement it helped craft knowing that its severability provision contemplated this exact scenario: that a clause may be deemed “invalid, void and illegal,” and that it would subsequently be stricken from the agreement.
Almost six years after the city decided to punish Overbey for her refusal to remain silent, it will finally pay her what she's owed. Fortunately, future plaintiffs won't have to put up with this bullshit.

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posted at: 12:00am on 07-Oct-2020
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UK Tribunal To Decide Whether Gov't Agencies Can Continue To Pretend There's A Residency Requirement For FOI Requests

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The UK's Freedom of Information law is pretty straightforward when it comes to residency requirements. There aren't any.

Anyone can make a freedom of information request – they do not have to be UK citizens, or resident in the UK. Freedom of information requests can also be made by organisations, for example a newspaper, a campaign group, or a company.
And yet, some UK government agencies have decided to read a residency requirement into a law that doesn't contain one. As Owen Bowcott reports for The Guardian, these seemingly illegal non-responses to requests are about to be tested in court.
A combined hearing involving the Home Office, Metropolitan police, the Information Commissioner’s Office (ICO) and 13 separate cases is to be held at an information tribunal in London.At issue is whether applicants overseas are entitled to a response when submitting freedom of information requests to UK government departments and agencies.
Nothing in the UK's Freedom of Information law appears to institute a residency requirement for FOI requesters. Nor does it hint at territorial limitations that could allow agencies to withhold documents from certain requesters. But the agencies handling these 13 cases seem to feel there is a residency requirement and they appear to be applying this novel interpretation to screw with requesters they'd rather not respond to.One set of requests deals with the UK's government's involvement with attempts to extradite Julian Assange for prosecution.
One of the blocked cases is an appeal by the Italian journalist Stefania Maurizi, who works for daily newspaper Il Fatto Quotidiano and writes about WikiLeaks.She has been pursuing information about how the Crown Prosecution Service dealt with its Swedish counterpart during initial attempts to extradite Assange to Sweden.
So, it appears that at least one of the 13 cases is about documents being withheld because the agency doesn't want to release them, not because there's a genuine question about whether the agency is obligated to respond to non-UK residents. Meanwhile, the government says it's going to continue following the law… by not following the law in these 13 cases -- at least until the tribunal says otherwise.

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posted at: 12:00am on 07-Oct-2020
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Open Access Faces Many Problems; Here's One That The Indispensable Internet Archive Is Helping To Solve

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As Techdirt has reported many times, open access is a self-evidently great idea, but one that is still beset with many problems. That's not least because academic publishers are keen to remain in control of any transition to open access, and aim to maintain their extremely high profit margins whatever the publishing model. But there's one problem for open access that ironically derives from its greatest strength -- the fact that anyone can access journals at any time, for free. Because material is always available, librarians have tended not to worry about making some kind of backup. That's not the case for traditional journals, where there is potentially a big problem if a subscription is cancelled. The end of a subscription often means that readers lose their existing access to journals. To address this, librarians have come up with a variety of ways to ensure "post-cancellation access", explained well in a 2007 post on a blog about digital preservation, written by David Rosenthal. A recent article on the Internet Archive site provides some interesting statistics on the scale of the problem of creating permanent copies of open access titles:

Of the 14.8 million known open access articles published since 1996, the Internet Archive has archived, identified, and made available through the Wayback Machine 9.1 million of them... In the jargon of Open Access, we are counting only "gold" and "hybrid" articles which we expect to be available directly from the publisher, as opposed to preprints, such as in arxiv.org or institutional repositories. Another 3.2 million are believed to be preserved by one or more contracted preservation organizations, based on records kept by Keepers Registry... These copies are not intended to be accessible to anybody unless the publisher becomes inaccessible, in which case they are "triggered" and become accessible.This leaves at least 2.4 million Open Access articles at risk of vanishing from the web... While many of these are still on publisher's websites, these have proven difficult to archive.
That's a pretty serious problem, and one which the Internet Archive is taking steps to address, for example by trawling through the petabytes of Web content that it has built up since 1996. There's an editable catalog with an open API that aims to provide "Perpetual Access to Millions of Open Research Publications From Around The World". Internet Archive has also created a full-text search index to over 25 million research articles and other scholarly documents.Although few people are aware of this project, it is vital work. There is little point publishing open access titles, theoretically available to all, if their holdings simply disappear at some point in the future. The Internet Archive's copies will ensure that doesn't happen. They are yet another indication of the invaluable and unique role the site plays in the online world. Without it, we would already have lost so much of the amazing material that was once online, but which has since vanished except for the copies held by the Wayback Machine. Another good reason to support this incredible, free resource financially, and to help defend it from incredibly selfish attacks by publishers.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 06-Oct-2020
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Take-Two Going To Trial Over Yet Another Tattoo Artist Claiming Copyright On Athlete Bodies

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Back in 2016, we began a series of posts about a tattoo artist suing Take-Two Software over the faithful depiction of tattoos on several NBA players' bodies. The whole thing was fairly insane, with Solid Oak Sketches appearing to claim that because players had its tattoos on their bodies, those players no longer had the full control and ability to profit off of their own likenesses in video games. While the court in that case allowed that case to go to trial, the court also ruled in favor of Take-Two in summary judgement, ruling that fair use of course protected such depictions as a matter of art and speech with minimal copying as part of the game. What made the lawsuit particularly cringe-worthy was the implications of its argument. As I said at the time:

Put another way, it could be said that by branding the player with Solid Oak's designs, the company seems to think it can control the players' ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.
That case should have sent a clear message to tattoo artists nationwide that such depictions didn't constitute copyright infringement. Instead, Take-Two again finds itself in a different court hearing what is essentially exactly the same case, but this time substituting a WWE wrestler for NBA players. Catherine Alexander was Randy Orton's tattoo artist and came to learn that Orton's appearance in a WWE video game included depictions of those tattoos. In addition, the WWE is selling arm sleeves depicting Orton's tattoos. This time, the court failed to get the suit against Take-Two tossed in the summary judgement phase.
On Saturday, an Illinois federal judge handed her partial summary judgment by determining that WWE and Take-Two Interactive Software, the publisher of the WWE 2K series of video games, had indeed copied her work. Now the question for a jury is whether that rises to copyright infringement. The judge denies the defendants' own motion for summary judgment by deciding that certain questions are triable ones. Those include whether Alexander impliedly licensed Orton to disseminate and display the six tattoos she inked for him.
Take-Two may have a problem here. In the NBA2K case, the court relied on the game's use of players' tattoos being de minimis, thereby not causing harm to the copyright holding tattoo artist. In the Seventh Circuit, where this case is being conducted, de minimis use isn't a factor by precedent.
U.S. District Court Judge Staci Yandle's decision setting up the first copyright trial ever to focus on the unauthorized reproduction of tattoos will likely surprise those who figured the issue to be largely resolved."Whether the Seventh Circuit recognizes this defense to copyright infringement claims is an open question," writes Yandle, adding that she doubts the defense is viable generally and in this particular situation. "The defense has been successfully invoked to allow copying of a small and usually insignificant portion of the copyrighted works, not the wholesale copying of works in their entirety as occurred here."
Which is odd, because that isn't how the de minimis exemption is applied in the NBA2K case. It isn't how much of the copyrighted work you use, it's how much that use factors into the overall protected work in which it appears. In the NBA2K case, for instance, the court noted that while the entire tattoos of players were reproduced, those images barely factored into the overall work and weren't generally the focus of the player.But we're left with the same question: can a tattoo artist, even at an athlete's request, essentially brand the player such that they can no longer profit off of their own likeness? The judge in this case seems to think that question is a matter for a jury to decide.
On the first factor of fair use, for example, the judge's opinion states, "Alexander contends she created the tattoos for the purpose of displaying them on Orton’s body and that Defendants used the tattoos for the same purpose; to display them on Orton’s body in the video games. Alexander also disputes Defendants’ characterization of the size of the tattoos and maintains they are prominently displayed and clearly visible in the video games. These are material factual disputes."
But that's crazy. It isn't how likeness rights work. And it isn't how fair use allows for the faithful representation of reality in works of art, video games included. Hopefully Take-Two's lawyers can drive this home with a jury.

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posted at: 12:00am on 06-Oct-2020
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This Week In Techdirt History: September 27th - October 3rd

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Five Years AgoThis week in 2015, while many sites were going to war with ad blockers, we unveiled the ability to turn off ads on Techdirt in your user settings. Various emerging info revealed sketchy behavior by the Secret Service, the State Department's success in planting anti-Wikileaks questions in the 60 Minutes interview with Julian Assange, and the surveillance failures of the Postal Service. Rightscorp was telling its copyright-trolling targets that they need to hand their computers over to police, PETA was defending its supposed right to represent the selfie-taking monkey, and — though it seems minor compared to what's going on right now — we talked about the increasing number of attacks on Section 230.Ten Years AgoThis week in 2010, Citibank was abusing the DMCA to try to hide its comments on Obama's bank reform policy, a city council was claiming copyright infringement over one councilor countersuing Righthaven. Meanwhile, Congress was pushing the COICA anti-infringement bill, and we took a look at all the technologies it would have blocked in the past, then all the current technology it was likely to interfere with, while Tim Berners-Lee stepped up as an opponent to the bill (and the RIAA, of course, stepped up as a hysterical supporter) — and by the end of the week, the bill was shelved.Fifteen Years AgoThis week in 2005, the ever-changing world of mobile phone etiquette was grappling with Bluetooth headsets while some restaurants were splitting into phone and no-phone sections. The pessimism about cameraphones was faltering as a new music video was shot entirely with a phone, and some early battles over transit map apps were popping up, while Motorola's CEO was whining about the iPod Nano and Seagate's CEO was making the case for hard drives over flash memory — while SanDisk made a much-anticipated announcement about flash storage that turned out to be... new copy protection technology. Professors were following in the shoes of doctors and freaking out about online reviews, Warner Music was foolishly overestimating its power in negotiations with Apple, and Sony was repeating its past ways by trying to block developers from hacking the PSP.

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posted at: 12:00am on 04-Oct-2020
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Content Moderation Case Study: Sensitive Mental Health Information Is Also A Content Moderation Challenge (2020)

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Summary: Talkspace is a well known app that connects licensed therapists with clients, usually by text. Like many other services online, it acts as a form of marketplace for therapists and those in the market for therapy. While there are ways to connect with those therapists by voice or video, the most common form of interaction is by text messages via the Talkspace app.A recent NY Times profile detailed many concerns about the platform, including claims that it generated fake reviews, lied about events like the 2016 election leading to an increase in usage, and that there were conflicts between growing usage and providing the best mental health care for customers. It also detailed how Talkspace and similar apps face significant content moderation challenges as well -- some unique to the type of content that the company manages.Considering that so much of Talkspace's usage includes text based communications, there are questions concerning how Talkspace handles that information and how it protects that information.The article also reveals that the company would sometimes review therapy sessions and act on the information learned. While the company claims it only does this to make sure that therapists are doing a good job, the article suggests it is often used for marketing purposes as well.

Karissa Brennan, a New York-based therapist, provided services via Talkspace from 2015 to 2017, including to Mr. Lori. She said that after she provided a client with links to therapy resources outside of Talkspace, a company representative contacted her, saying she should seek to keep her clients inside the app.I was like, 'How do you know I did that?' Ms. Brennan said. They said it was private, but it wasn't.The company says this would only happen if an algorithmic review flagged the interaction for some reason for example, if the therapist recommended medical marijuana to a client. Ms. Brennan says that to the best of her recollection, she had sent a link to an anxiety worksheet.
There was also a claim that researchers at the company would share information gleaned from looking at transcripts with others at the company:
The anonymous data Talkspace collects is not used just for medical advancements; it's used to better sell Talkspace's product. Two former employees said the company's data scientists shared common phrases from clients' transcripts with the marketing team so that it could better target potential customers.The company disputes this. We are a data-focused company, and data science and clinical leadership will from time to time share insights with their colleagues, Mr. Reilly said. This can include evaluating critical information that can help us improve best practices.He added: It never has and never will be used for marketing purposes.
Decisions to be made by Talkspace:
  • How should private conversations between clients and therapists be handled? Should those conversations be viewable by employees of Talkspace?
  • Will reviews (automated or by human) of these conversations raise significant privacy concerns? Or is it needed to provide quality therapeutic results to clients?
  • What kinds of employee access rules and controls need to be put on therapy conversations?
  • How should any research by the company be handled?
  • What kinds of content need to be reviewed on the platform, and should it be reviewed by humans, technology, or both?
  • Should the company even have access to this data at all?
Questions and policy implications to consider:
  • What tradeoffs are there behind providing more access to therapy in an easier format and the privacy questions raised by storing this information?
  • How effective is this form of treatment for clients?
  • What kinds of demands does this put on therapists -- and does being monitored change (for better or for worse) the kind of support they provide?
  • Are current regulatory frameworks concerning mental health information appropriate for app-based therapy sessions?
Resolution: Talkspace insists that it is working hard to provide a better service to clients who are looking to communicate with therapists, and challenges many of the claims made in the article. Talkspace's founders also wrote a response to the article that, while claiming to welcome scrutiny, also questioned the competency of the reporter who wrote the NY Times story. They also argued that most of the negative claims in the Times piece came from disgruntled former workers -- and that some of it is outdated and no longer accurate.The company also argued that it is IPAA/HITECH and SOC2 approved and has never had a malpractice claim in its network. The company insists that access to the content of transcripts is greatly limited:
To be clear; only the company's Chief Medical Officer and Chief Technology Officer hold the keys to access original transcripts, and they both need to agree to do so. This has happened just a handful of times in the company's history, typically only when a client points to particular language when reporting a therapist issue that cannot be resolved without seeing the original text. In these rare cases, Talkspace gathers affirmative consent from the client to view that original text: both facts which were made clear to the Times in spoken and written interviews. Only Safe-Harbor de-identified transcripts (A safe harbor version of a transcript removes any specific identifiers of the individual and of the individual's relatives, household members, employers and geographical identifiers etc.) are ever used for research or quality control.


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posted at: 12:00am on 03-Oct-2020
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Hugo Boss Opposes Artist's 'Be Boss, Be Kind' Trademark For Merch

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The last time we discussed Hugo Boss, the famed upscale clothier based out of Germany, it was when the company sent a C&D notice to Boss Brewing, which makes beer. While there can be no doubt that Boss Brewing would have won any dispute on the merits, given that the two entities are simply not playing in the same marketplace and there was zero chance of any kind of public confusion in commerce, Hugo Boss got its pint of blood by getting the brewery to change the name of two of its beers in a barely perceptible way.In other words, there was no real or potential harm done to Hugo Boss over the target of its dispute, but these sort of trademark actions are more reflex than logic.And here we go again, with Hugo Boss sending another notice to an artist who decided to trademark a phrase he uses to conclude his art lessons with for use on merch.

Father-of-one John Charles was hit with a threatening legal letter from lawyers representing the luxury fashion brand after he applied to trademark his 'Be Boss, Be Kind' clothing and hat designs.The slogan, containing the word 'Boss', which in Scouse slang means 'very good' or 'great', was used by Mr Charles' at the end of his online art lessons - which he launched during lockdown.
"Be Boss, Be Kind" is not "Hugo Boss". In fact, given the part of the UK where Charles is from, "boss" is very much a common slang term for "awesome" or "the best". That his following, those that enjoy his art lessons, would somehow suddenly think he had anything to do with Hugo Boss is absurd on levels rarely seen.As for the contents of the letter, they weren't overly aggressive. It states that Hugo Boss plans to oppose Charles' trademark application, but would drop the matter entirely if he agreed to drop his application. The company has also stated publicly that they're looking for an amicable resolution to all of this.Except that no resolution is needed. There's no confusion to worry about here. No trademark infringement. Charles is an art teacher who teaches children remotely during the COVID-19 pandemic. As plenty of people have shown through public comments, this is nothing.
Hundreds of people have since spoken out in support of John.Many have since said that it's 'easy to see' that Be Boss Be Kind has no connection to the German fashion giant. Other residents also agreed with John that the word 'boss' is a Liverpool saying.On Facebook, Anne Porter commented: 'Boss' is a word 9/10 Scousers use with no connection to Hugo.'PoliteScouser added: 'Boss is a Liverpool slang word for the best. He has as much right to use the word from his local dialect as any other person place or thing.'
Despite this, Hugo Boss' letter claims that its brand's "goodwill" will be threatened if Charles gets his trademark. In my view, it sure seems like its the opposition that is hurting any goodwill the brand might have.

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posted at: 12:00am on 03-Oct-2020
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Palantir Presentations Show How The LAPD Is Able To Turn Tons Of Garbage Data Into Ineffective Policing

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Palantir is raking in millions. It's your surveillance provider, whether you -- the valued customer target -- had any say in the matter or not. Data comes in from all over and Palantir helps law enforcement make sense of it. Haystacks are useless. "Drilling down" -- to use official Palantir parlance -- is everything. Whether it's ICE or your local PD, Palantir is turning data into arrests… or at least stops/frisks and low-level harassment.Palantir gives law enforcement something roughly aligned with predictive policing. Predictive policing has given itself a bad name over the years by relying on dirty data supplied by cops who target minorities under the bigoted assumption that that's where the crime is. Palantir doesn't use that term but its analytics provide the same outcome: garbage results from garbage data.And there's oh so much data. Everything cops own gets fed into the system: millions of license plate photos from ALPRs, every piece of detritus generated by police reports, gang databases that think residents are gang members because they happen to live in gang territory, etc. And it adds in everything else: state license plate databases, regional crime center reports, the bullshit crafted by DHS-led "fusion centers." Everything goes in and Palantir helps craft what comes out.Documents obtained by BuzzFeed show how much crafting Palantir does and how much minute detail its software allows officers to fiddle with. It's not cheap, but agencies like the Los Angeles Police Department feel it's worth it.

Palantir is expensive, and police departments often struggle to afford it. Between 2015 and 2016, the LA Mayor’s Office of Public Safety got the money to pay for Palantir from the federal government — specifically, from the Federal Emergency Management Agency’s Urban Areas Security Initiative (UASI) Program, which gives cities technology to "prevent, protect against, mitigate, respond to, and recover from acts of terrorism."It’s unclear if the LAPD always used federal UASI money to pay for Palantir, or if it only used federal money in those years. But purchase orders show that Palantir software upgrades and user licenses cost hundreds of thousands to millions of dollars.
Do law enforcement agencies get what they pay for? Well, that depends on who you ask. The LAPD thinks it's a sound investment. Critics say it's nothing more than the public paying their public servants to spy on them in granular detail. Whatever it is, it's profitable for Palantir and very, very popular within the LAPD.
Palantir is no small thing within the LAPD. Almost 5,000 people, more than half of all LAPD officers had accounts on Palantir, according to an “LAPD Palantir Usage Metrics” document. The same document says that in 2016, those officers ran 60,000 searches in support of more than 10,000 cases.
Starting with little more than an alias or a distinctive tattoo, LAPD officers can begin rebuilding a person's life as compiled by the Department's numerous data inputs. Searching by sex, race, and distinctive markings, officers running searches can access names, email addresses, warrants, mugshots, physical addresses, personal relationships, employers, and anything else that may get swept into the mix.Here's a very broad overview of how it works:
For the LAPD, Palantir swallowed up the contents of several major databases that were previously spread across public safety agencies throughout Los Angeles and the state, including incident reports, arrests, citations, license plate reader data, field interviews, recovered vehicles, warrants, booking photos, and data from the California Law Enforcement Telecommunications System, and the county’s Community Health Services data. Palantir algorithmically organizes this data, determining possible links between the people within it (e.g., “Sally was interviewed by police in a report about Fred”) and makes it searchable.
But is all this data getting the job done? The LAPD has been using Palantir's software for more than a decade. The Department killed off its predictive policing software earlier this year, citing its cost. But it could have just as easily cited its inability to do much more than subject overly-harassed residents to more harassment by mistaking past crime results for future criminal activity.What about Palantir? Its decade at the LAPD doesn't appear to have had much of an impact. Violent crime rates in 2019 are about the same as they were in 2009. While homicide and robbery have declined slightly, aggravated assault has increased. (So have the number of rapes reported, but that may have more to do with more rape victims coming forward than an increase in rapes.) The numbers for non-violent crime are better, with big reductions in burglary and vehicle thefts.But the Palantir-enabled LASER (Los Angeles Strategic Extraction and Restoration) program doesn't appear to have done anything a system utilizing less always-on surveillance could have accomplished. Garbage data gave cops garbage to work with, resulting in a lot of attention being paid to people who weren't causing any problems.
Out of the 637 Chronic Offenders identified by the LAPD, 44% were never arrested for a violent or gun-related crime, despite LASER's attempt to target violent crime. And 10% of Chronic Offenders had zero contacts with police — meaning zero arrests and zero mentions in field interviews. Per LASER’s guidelines, 100% of Chronic Offenders should have already been arrested for a violent crime.[...]It also couldn't find evidence that LASER reduced crime. The report said that in 6 out of the 13 LASER Zones, violent crime rates were “the same as, or worse than, those for non-LASER Zones.”
LASER is now dead, thanks to budget issues, COVID-19, and an oversight report the LAPD couldn't credibly contradict. But LASER is still very much alive, doing business under a less memorable name. And it's still powered by Palantir. It's called "Data-Informed, Community-Focused Policing." It sounds friendly, but it's worse than its predecessor.
The new plan formally expands the surveillance that began under LASER. Under LASER, the LAPD said people who were arrested for violent or gun-related crimes could be surveilled. Now, people suspected of nonviolent property crimes can also be.
And for being cutting edge, it clings to some really old fashioned ideas. The presentation for the new LASER says crime can be prevented by "physical maintenance and general upkeep" of property. Broken windows policing is back. And it's got a shiny, high-tech sheen thanks to Palantir.

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posted at: 12:00am on 02-Oct-2020
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Nikola Is Having A Bad Month: GM Contract Now Potentially In Jeapordy

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Nikola Motor Company, to put it mildly, is having itself a bad month. First came the bombshell reports from a hedge fund that founder Trevor Milton lied in 2016 when he told the world that the company had a fully functional Nikola 1 electric semi truck. Worse than that, it was revealed that a promotional video in 2018 showing the truck rolling down a lonely highway, was actually showing a Nikola 1 rolling down a hill, since the truck couldn't actually move under its own power. Milton resigned after those reports, but the hits kept coming. Two women have come forward claiming that Milton inappropriately groped them when each was fifteen, with one of those women being his cousin. For the record, Milton has denied both allegations.But the fallout appears to be continuing. September 30th was supposed to be the date by which Nikola's notable contract with General Motors was to have closed. That deal appears to be in limbo, however, with regulatory filings indicating that both sides now have until December to sign the deal or terminate it.

A GM spokesman confirmed the delay in an email to Ars. "Our transaction with Nikola has not closed. We are continuing our discussions with Nikola and will provide further updates when appropriate."Also this morning, Nikola published a revised overview of the company's business strategy. It discussed Nikola's plans to manufacture semitrucks in Europe and the United States, build a network of hydrogen fuel stations, and even plans for an electric all-terrain vehicle. But conspicuously missing from the document was any mention of the Badger pickup truck—the one that GM was supposed to manufacture for Nikola under the now-delayed partnership.Nikola also announced today that it was indefinitely postponing Nikola World, the December event where Nikola was planning to debut the Badger. Nikola blamed the COVID-19 pandemic and related social distancing rules for the delay.
So a lot of bad, without a lot of clarity as to the reasons for any of this. In the absence of clear communication, speculation is the sport of the day. Some are suggesting that GM doesn't want to be associated with the company right now, with all of the bad PR currently in play. Others are noting that the deal between Nikola and GM is very much one-sided in favor of GM, but the recent issues have lowered the value of the deal. The chief example of this is that GM was to be paid by Nikola in stock worth $2 billion at the time the deal was written. In the last month, Nikola's stock price has dropped such that the value of that stock is now less than $1 billion. So, part of this might be GM now trying to negotiate for better terms that reflect the original deal.Either way, while the risks in the deal for GM are small, the reputational risks are very, very real.
So the financial risk for GM was quite small. GM wasn't putting any money into Nikola. GM was supposed to do engineering work on the Badger in exchange for those Nikola shares, but if Nikola failed GM would likely be able to repurpose some of that work for use in a future GM-branded electric pickup truck.But the deal also creates some reputational risk for GM. If, hypothetically, more evidence of fraud or other misconduct came to light that led to Nikola's failure, GM could be tainted by association even if its financial exposure was small. GM's name wouldn't be on the Badger pickup truck, but customers would know GM manufactured the truck, and some of them might blame GM if the Badger didn't work well.
Which brings us back to our original post on Nikola, the theme of which is that you cannot risk your reputation like this. Chances are, you're going to get found out and, when you do, the consequences will vastly outweigh any benefit you get from your fuckery.

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posted at: 12:00am on 02-Oct-2020
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Content Moderation Case Study: Ask.fm Responds After A Teen's Suicide Is Linked To Bullying On The Site (August 2013)

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Summary: After a UK teen took her own life in response to bullying on social networking site, ask.fm, her father asked both the site and the UK government to take corrective measures to prevent further tragedies. This wasn't an isolated incident. Reports linked multiple suicides to bullying on the teen-centered site.Ask.fm's problems with bullying and other abuse appeared to be far greater than those observed on other social media sites. Part of this appeared to be due to the site's user base, which was much younger than more-established social media platforms. This -- combined with the option to create anonymous accounts -- seemed to have made ask.fm a destination for abusive users. What moderation existed before these problems became headline news was apparently ineffective, resulting in a steady stream of horrific stories until the site began to make serious efforts to curb a problem now too big to ignore.Ask.fm's immediate response to both the teen's father and UK Prime Minister David Cameron's criticism (Cameron called for a boycott of the site) was to point to existing moderation efforts put in place to deter bullying and other terms of service violations.After major companies pulled their advertising, ask.fm pledged to assist police in investigating the circumstances behind the teen's suicide, as well as consult with a law firm to see if moderation efforts could be improved. It also hired more moderators and a safety officer, and made its "Report" button more prominent.More than a year after ask.fm became the target of criticism around the world, the site implemented its first Safety Advisory Board. The group of experts on teens and their internet use was tasked with reducing the amount of bullying on the platform and making it safer for its young users.More significantly, ask.fm's founders -- who were viewed as unresponsive to criticism -- were removed by the site's new owners, InterActiveCorp (IAC). IAC pledged to work more closely with US law enforcement and safety experts to improve moderation efforts.Decisions to be made by ask.fm:

  • Should anonymous accounts be eliminated (or stop-gapped by gathering IP address/personal info) to limit abusive behavior?
  • Does catering to a younger user base create unique problems not found at sites that skew older?
  • Would more transparency about moderation efforts/features nudge more users towards reporting abuse?
  • Should the site directly intervene when moderators notice unhealthy/unwanted user interactions?
Questions and policy implications to consider:
  • Given the international reaction to the teen's suicide, does a minimal immediate response make the perceived problem worse?
  • Does having a teen user base increase the risk of direct regulation or unfavorable legislation, given the increased privacy protections for minors in many countries?
  • Are moderation efforts resulting from user reports vetted periodically to ensure the company isn't making bullying/trolling problems worse by allowing abusive users to get others suspended or banned?
Resolution: When immediate steps did little to deter criticism, ask.fm formed a Safety Committee and, ultimately, dismissed founders that appeared to be unresponsive to users' concerns. The site made changes to its moderation strategies, hired more moderators, and made users more aware of the features they could use to report users and avoid unwanted interactions.

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posted at: 12:00am on 01-Oct-2020
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Burger King Fights Proxy War Against McDonald's Over Hungry Jack Trademark Dispute

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As one of the largest private employers in the world, it probably shouldn't come as too big a surprise that McDonald's is fairly protective of its trademarks. The company, large legal coffers though it has, is not undefeatable, however. It was only a year or so ago, for instance, that McDonald's famously lost its "Big Mac" trademark in Europe when another chain, Supermacs, got it cancelled as it expanded into more European markets.Well, now Mcdonald's is facing another trademark issue in Australia. Down Under, there is a fast food chain called Hungry Jack's, which is actually a part of Burger King. Burger King, of course, is McDonald's chief global rival. There is something of a proxy war currently being waged over Hungry Jack's "Big Jack" sandwich, with McDonald's crying trademark infringement over its "Big Mac" trademark.

McDonald's Asia-Pacific filed Federal Court proceedings on August 28 against Hungry Jack's over its rival's new burger trademark, which it claims is "substantially identical with or deceptively similar" to its own Big Mac trademark.Hungry Jack's has been the owner of the registered trademark "Big Jack" since November last year but McDonald's says the trademark "is liable to be cancelled, and should in the exercise of the court's discretion be cancelled" on a number of grounds, including that it is "likely to deceive or cause confusion" among consumers.
So let's stipulate immediately that the rival for McDonald's absolutely constructed a sandwich burger that has a lot of similarities to a Big Mac. The construction of the food is similar and the names both have the word "Big" in them, and then culminate in designators for the companies selling them, but those names rhyme. Big Mac. Big Jack. You get it.So, with all of that stipulated, is this trademark infringement? Well, as always, that comes down to the question of whether there will be public confusion as to the source of the products. And Hungry Jack's is apparently prepared to argue that there won't be.
In a defence filed in the Federal Court on Friday, lawyers for Hungry Jack's said consumers were "well aware" of the "competitive rivalry between Hungry Jack’s and [McDonald's]" and it had not infringed the latter's trademarks. Consumers would not be deceived into thinking the Big Jack was a McDonald's product, they said.Hungry Jack's said it was entitled to use the Big Jack trademark, which played on the company's name and the name of "its founder and current owner, Jack Cowin". The word Jack was "closely associated by consumers with Hungry Jack's' goods and services", the company's lawyers said.
Add to the above that much of the complaints McDonald's lodges aren't relevant in a trademark dispute. The recipe for the sandwich doesn't really matter, unless McDonald's has trademarked this construction. If it has done so, it certainly hasn't said as much. The word "Big" in the name of each product basically doesn't matter, since it is both descriptive and in common use in trademarks all over the place. Instead, this is going to come down to whether "Jack" is too similar to "Mac", sufficiently so to lead to public confusion.Which is where Hungry Jack's point is made. The rivalry between these two is as famous in Australia as Burger King versus McDonald's is in America. Given that notoriety, and the simple fact that the dispute is over two words that very specifically designate the origin of the product, it's hard to imagine the public being confused by any of this.In other words, it would seem that McDonald's would need to bring instances of actual confusion to court to make this lawsuit successful.

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