By now it should be clear that DRM is essentially an arms race that will never be won by producers and publishers of content. While the fall of even the most vaunted DRM platforms has shown how useless those platforms are, the more consequential outcomes of DRM tend to be the way it bricks the products people bought or else limits the use of those products once the DRM is no longer supported. In sum total, it's very clear that DRM is very much anti-consumer, while failing completely at being anti-pirate.It's a lesson that some in the video game industry insist on re-learning over and over again. Activision recently re-released Crash Bandicoot 4 for the new generation of consoles... and a long-awaited debut on PC. Despite the game having no online gaming components in it, Activision decided to put an online DRM requirement in the game, forcing it to check in with the Battle.net app for it to work. To be clear, there was no reason to include the DRM beyond it being a piracy check. And to be equally clear, even that reason was silly. Why? Well...
By midday Saturday, one day after the game's Battle.net launch, cracking-group Empress claimed first dibs on stripping Crash 4's PC version of its online check-in system. Their crack replaces one file in an otherwise vanilla install, and the group's release notes don't clarify what the crack does, other than describing the game's defeated DRM as "Battle.net + online only." (We thus believe this isn't a case of someone defeating Denuvo, even though a joke in Empress' release notes mocks the much-maligned DRM provider.)As of press time, Crash 4 has zero online content, in spite of a couch co-op mode (designed to let a parent and child take turns with the single-player campaign) and a simple four-player versus mode dubbed Bandicoot Battle. Thus, the Battle.net handshake appears to revolve entirely around DRM, as opposed to checking for add-on content like new levels or even score leaderboards.
It's all so pointless. I have no idea how much time and effort it took for Activision to build this online-check into the PC release of the game. And it really doesn't matter, because literally every second of time and energy spent on it was completely wasted. The game was cracked in a day. Previous PC releases of Activision titles didn't include this DRM, though some will like to argue that any title released on Steam technically has DRM saddled into it. Still, as a new effort, this was all pointless.Which is why it's so frustrating that game publishers keep going down this futile road. Instead, developers and publishers should be focusing on creating great gaming experiences for the public, building a bond with that public by treating them well, and not hampering their efforts with stupid online-checks that are defeated on the order of hours.Is that really so hard?
Lots of plain view jurisprudence relies on the fact that if it can be observed by random people -- not just by law enforcement -- then there's no Fourth Amendment issue. If airplanes can pass over someone's land, surely police helicopters can do the same thing without undoing expectations of privacy.Some of this judicial thought process has been altered by persistent surveillance from law enforcement cameras -- ones that don't just observe, but also record and provide officers with searchable footage of residences investigators are interested in. Then there's the incidental aspect. If a cop enters a home to perform community caretaking functions and spots contraband, this is legal as it's not the point of the cop's entry. If the cop is there solely to look for contraband, a warrant and probable cause is needed.But a brief overflight generally isn't a Constitutional issue, no matter how high a fence those under investigation have constructed. A flyover isn't persistent or invasive surveillance. But tech advances have altered how flyovers by government agencies are conducted. In this case, via FourthAmendment.com, the Michigan Court of Appeals has found in favor of a defendant who moved to suppress evidence gathered by the city with its drone.And this is still very much law enforcement activity, even if it wasn't related to the sort of crime we normally associate with constitutional violations. From the decision [PDF]:
In this zoning dispute, defendants appeal by leave granted the order of the trial court denying their motion to suppress evidence. At issue is the legality of the use of a drone by plaintiff Long Lake Township to take aerial images of defendants’ property without defendants’ permission or any other specific legal authorization. Plaintiff relied on those aerial photographs to commence suit against defendants, alleging that defendants were in violation of a zoning ordinance, nuisance law, and a prior settlement agreement between the parties. We reverse the trial court’s May 16, 2019 order denying defendants’ motion to suppress evidence, and we remand for entry of an order suppressing all photographs taken of defendants’ property from a drone and for further proceedings consistent with this opinion.
The township had plenty of options at its disposal if it wanted to settle a zoning dispute. It could have asked for consent to view the property. It could have approached a judge and asked for permission to perform this act, possibly using an administrative warrant. It could have sent city personnel out and made it clear it had authority to act on zoning disputes. Instead, it chose to fly a drone over the disputed property to gather evidence against the alleged violator of zoning laws.The township claimed the defendant was keeping too much "junk" on their property, a tipping point that apparently could only be determined by circling overland. The defendant claimed the drone flight over their land violated the Fourth Amendment, along with FAA regulations on drone flights.The township replied that there was no expectation of privacy in anything capable of being viewed from the air and denied it had violated FAA regulations. The trial court sided with the township. It also declared that even if FAA regulations had been violated, they had no bearing on the Fourth Amendment assertions.The state appeals court disagrees. And it says that even though this wasn't necessarily a criminal investigation since it only involved code enforcement, the Fourth Amendment is still relevant due to the government's involvement in the aerial "search" of the property.
Considering the great historical importance placed on the freedom to use one’s own property, and the fact that the consequences of this action may entail far more than merely the imposition of money damages, we conclude that this is the kind of proceeding to which the Fourth Amendment may apply.
Critically for the instant matter, the Court opined that mere existence and availability of technological advancements should not be per se determinative of what privacy expectations society should continue to recognize as reasonable. Kyllo, 533 US at 33-35. Although again discussing only privacy within the home, the Court emphasized that the homeowner should not be “at the mercy of advancing technology” that might eventually be able to see directly through walls outright. Id. at 35-36. The development of historically-novel ways to conduct unprecedented levels of surveillance at trivial expense does not per se reduce what society and the law will recognize as a reasonable expectation of privacy.
And, although the court says FAA rules have no bearing on Fourth Amendment claims, the rules are a solid indicator that courts shouldn't treat drone flights as substantially similar to flights over private property conducted by airplanes or helicopters.
The FAA regulations, 14 CFR part 107,5 require drone operators to keep drones within visual observation at all times, fly drones no higher than 400 feet, refrain from flying drones over human beings, and obtain a certification. Such rules reflect the fact that drones are qualitatively different from airplanes and helicopters: they are vastly smaller and operate within little more than a football field’s distance from the ground. A drone is therefore necessarily more intrusive into a person’s private space than would be an airplane overflight. Furthermore, unlike airplanes, which routinely fly overhead for purposes unrelated to intentionally-targeted surveillance, drone overflights are not as commonplace, as inadvertent, or as costly. In other words, drones are intrinsically more targeted in nature than airplanes and intrinsically much easier to deploy. Furthermore, given their maneuverability, speed, and stealth, drones are—like thermal imaging devices—capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind.
The court goes on to point out the township had better options but chose to ignore these in favor of testing the Fourth Amendment limits of drone surveillance. That it lost on this roll of the judicial dice is its own fault.
We also observe that plaintiff’s warrantless surveillance was totally unnecessary. The parties could easily have—and likely should have—included a monitoring or inspection provision in their settlement agreement. Aside from that, as the United States Supreme Court observed, the quantum of evidence necessary to establish probable cause to conduct an administrative inspection is more than “none,” but is less than what might be required to execute a criminal search warrant. Camara, 387 US 528-539. By plaintiff’s own account, it had concrete evidence, in the form of unrelated site inspection photographs and complaints from defendants’ neighbors, that defendants were violating the settlement agreement, violating the zoning ordinance, and creating a nuisance.
And this decision is unlikely to disrupt legitimate law enforcement activity, no matter what the township may claim will be the result of forbidding these unmanned flights over private property.
Our holding today is highly unlikely to preclude any legitimate governmental inspection or enforcement action short of outright “fishing expeditions.” If a governmental entity has any kind of nontrivial and objective reason to believe there would be value in flying a drone over a person’s property, as did plaintiff here, then we trust the entity will probably be able to persuade a court to grant a warrant or equivalent permission to conduct a search.
That's the risk the government takes when it decides to take its chances on unsettled case law. Sometimes the settling of the law results in a win for the governed. If government agencies want to fly drones over private property in this state, they'll need more judicial input than the Long Lake Township chose to seek in this case.
It's always a problem when a private citizen starts horning in on the government's racket. The government has plenty of rackets and likes them to stay in their possession, undisturbed and unthreatened.When the government feels threatened, it starts making threats. And, since it has almost all the power, its threats usually work. But sometimes it gets sued. That's what's happening here: a government regulatory body has decided the incumbent interests it has propped up for years is more important than little things like the First Amendment.A drone operator in North Carolina is suing the state because it claims he can't fly drones over land and take pictures without the proper license. It's not a commercial drone operator license. (He has that.) It's a license that basically says the government has given him permission to photograph the land underneath the drones his company operates. (h/t Techdirt reader Vidiot)Here's the impetus of the lawsuit being brought by photographer Michael Jones, as summarized by Miriam McNabb of Drone Life:
Hiring a surveyor is an expensive business, but necessary if you want to establish legal property lines. What if you just want to see what your property looks like, or create a visual map of your property or work place in order to help make decisions about new development or see what type of topography you have? While previously, you may have had to hire surveyors to make a map, now that information is readily available by using aerial images. Commonly available commercial drone software is designed to do exactly this: creating orthomosaic maps and 3D images.Surveyors apparently don’t like the competition. In North Carolina, they’re trying to push drone operators out of business. “…drone entrepreneurs on the cutting edge are finding a very old industry standing in the way: land surveying. In North Carolina, the Board of Examiners for Engineers and Surveyors [the NC Board] sends warnings to drone operators saying that certain photography amounts to surveying without a license and threatens them with possible criminal prosecution.”
Michael Jones is being represented by the Institute for Justice. His lawsuit [PDF] claims that, first of all, he's not actually engaging in the land surveying that falls under the control of the North Carolina Board of Examiners. Or, at least, he shouldn't be, but the Board has engaged in some weird form of eminent domain, rolling up every possible definition of aerial drone photography and converting it into something it can sell licenses to engage in.
In North Carolina... drone start-ups have found themselves targeted by a centuries-old profession: land surveyors. As most people would understand it, “land surveying” involves establishing legal boundaries between tracts of land. Yet the North Carolina Board of Examiners for Engineers and Surveyors (Board) takes a far more aggressive view. According to the Board, capturing and disseminating data about the dimensions or elevations of land—or the size of objects on land—requires a full-blown land-surveyor license. Drawing even rough approximations of property lines on images requires a land-surveyor license. Even stitching aerial photos together using orthomosaic software requires a land-surveyor license.
So, the stuff many wouldn't associate with the licensed act of surveying is considered subject to Board rules and regulations. The Board's aggression manifested itself with an investigation of Jones' company, 360 Virtual Drone Services. The Board claimed Jones was engaging in unlicensed land surveying. But Jones has never presented himself as a "surveyor," nor has he offered surveying services to anyone. All he has done is take photos of land from the air at the request of customers. That didn't stop the Board from threatening him with civil and criminal "consequences" unless he was willing to open up his wallet and participate in the local government's licensing scheme.Jones refused. And has greeted these threats -- ones delivered to at least another half-dozen drone companies in North Carolina -- with allegations that this regulation violates his First Amendment rights.
[B]oth the Board and the statutes it enforces violate the First Amendment at a bedrock level. Simply, the projects the Board targets—aerial photos, data, 3D digital models, and the like—are speech that is fully protected by the First Amendment.
As Jones points out in the lawsuit, the restrictions the board places on aerial photography are content-based. Some aerial photos are fine but those containing any sort of useful data, like the stuff that appears on sites like Google Maps (elevations, geographical coordinates, property boundaries), are considered to be land surveying even if -- as Jones has made clear to customers -- he does not offer surveying services. He has also made it explicit the photos customers purchased from him did not establish property lines and could not be used for legal purposes.At this point, Jones' drone photography business is on hold. Hopefully the court will find in his favor and let him get back to work. If the state really wants to protect surveyors, it should nudge them towards getting commercial drone operator licenses. This would foster competition, rather than ensure surveyors who have been slow on the tech uptake still have a captive market.
When it comes to the video game industry, there has been some recent recognition that copyright laws and the ways that publishers utilize them have hampered the ability to preserve this sort of art. In the olden days of a decade or so ago, the challenges around preserving video games centered around both the publisher's unwillingness to allow a group access to source code to preserve a game and the deterioration of physical game media. But in these modern times, this has changed. Now, the challenges are the publisher copyright question... and that same publisher's ability to simply stop supporting the online resources modern games and platforms require to run. Given the ongoing war on emulators by the likes of Nintendo and a rather insane industry stance that preservation is trumped by copyright concerns, there is a very real risk of losing the ability to preserve video game history at all.Recent rumors that Sony is going to shut down online stores for a bunch of old hardware, has thrown the question of what happens to digital purchases in sharp relief.
Yesterday, TheGamer reported that Sony has plans to shut down the online PS3, PS Vita, and PSP stores that service those older consoles. While this has yet to be confirmed, and Sony has not responded to Kotaku’s request for comment, the internet discourse around this potentially troubling news immediately began to swirl.If these stores go away, PS3, PS Vita, and PSP players will be unable to purchase new digital games. While there aren’t yet concrete details about what, if anything, is happening, the rumors have many PlayStation gamers understandably worried about the continued viability of their digital purchases.
Add to all of that the question of game preservation. With purchases being digital and potentially just going away at Sony's whim, and with source code locked up by developers and publishers... what happens to antiquated PlayStation games when the cord is pulled? How would a museum or interest group preserve these games? How will future generations be able to enjoy and participate in this art?The answer, of course, is piracy.
This kind of real preservation is rarely done by corporations. Instead, communities form around games and keep them alive for years beyond their normal commercial lifespans. These people are doing some impressive things. Look at the continued work on the unofficial but fantastic PC port of Super Mario 64. Or just a few days ago, The Hidden Palace uploaded over 700 PlayStation 2 game prototypes and dev builds, uncovering and preserving a huge bit of game history in one fell swoop.Meanwhile, publishers like Nintendo use lawyers to crack down on the availability of emulator-playable ROMs for games that are no longer sold. Nintendo even explicitly limits how long it will sell certain games. None of this helps preserve these works. In fact, it actively hurts efforts to do so.
And so the public's interest in video game preservation sits on a single train track, with the copyright enforcement train hurtling towards it from one direction and publishers' decisions to stop supporting the online resources needed for digital purchases from the other. The result, if left alone, will be a train wreck, at least as far as the public interest is concerned.So, what's the fix? Well, as per usual, the fix would be for game developers and publishers to give up just a bit of control over their products in a way that would allow preservation to occur.
Release all games on PC, preferably alongside their source code. Having PC game releases with source code would make certain aspects of game preservation much easier, and could allow even the oldest games to survive for decades to come. It frees games from being tied to one single platform or the whims of whatever capitalist entity published it.This isn’t a wild, unproven theory. One of the most-ported and played classic games is the original Doom. id Software released its source code back in 1997, only four years after Doom’s launch. Since then fans have created numerous “source ports” of the game, to the point that Doom’s now playable on almost any device with a screen.As a result, Doom has also stayed relevant. That’s important, because while the source ports have made it extremely easy to play Doom without buying it (all it takes is a quick search to find the necessary content files) that hasn’t hurt the IP. I’d argue the opposite! One possible reason Doom is still around—and we just got a big DLC expansion for the series’ latest game, Doom Eternal—is people still give a shit about Doom in 2021. And people still give a shit because it’s incredibly easy to play Doom. It’s only a few clicks away and its enthusiastic community has taken its source code in directions id never imagined.
This doesn't directly solve the PlayStation problem, of course, though there are avenues to explore there as well. But it's at least a start towards giving the public the tools to do the game preservation themselves, since developers and publishers often are incapable or unwilling to do it. And, as the Kotaku post notes, this should be seen not as some threat to the gaming industry, but a boon. Doom is the perfect example as to why.But, regardless, it is well past time that we do something about this. It is not tenable that we lose what is now a couple decades worth of art preservation just because it's being sacrificed at the copyright altar.
Well, that didn't last long. You will recall that in early February a Utah theme park called Evermore filed a very stupid trademark lawsuit against Taylor Swift. At supposed issue was Swift's new album, Evermore, and the associated merchandise for it. The theme park claimed that Swift's album was driving their search engine rankings down, that people would be confused thinking she was somehow connected to the theme park, and that the park also produces some music, putting them in the same competitive marketplace as the singer. Swift's team countersued, alleging that some of the park's actors would sing and perform copyrighted music, including Swift's. It was all, frankly, very dumb.But merely a month later, the dumbness is gone. Rolling Stone reports that both sides have dropped their lawsuits and reached an agreement, one which does not carry any monetary exchange.
A lawsuit and countersuit between Taylor Swift and Utah fantasy theme park Evermore have both been resolved with the involved parties dropping their respective suits, Rolling Stone has learned.“As a resolution of both lawsuits, the parties will drop and dismiss their respective suits without monetary settlement,” a spokesperson for Taylor Swift said in a statement to Rolling Stone.
A fitting end, since these suits never should have been filed to begin with. The claims that Evermore made against Swift were ridiculous on their own. But to go after the singer in this manner while the park itself was potentially infringing upon her copyrighted music is hubris in the extreme. The park, which reportedly hasn't been profitable since it was created, surely could have found a better use for its cash reserves than paying a legal team for this kind of litigious adventurism.On top of that, surely the park is now firmly on Swift's and TAS Management's radar, the latter being her rights management group.
Summary: For over a century, Edvard Eriksen's bronze statue of The Little Mermaid becoming human has been installed on a rock along the water in Copenhagen, Denmark. The statue was designed to represent the Hans Christian Anderson fairy tale, and has become a tourist attraction and landmark.
In 2016, Danish politician Mette Gjerskov used Facebook to post a link to her own blog post on the TV2 website, which included an image of the statue. Facebook automatically displayed the image with the link, leading the company to then take down the link. The explanation provided by Facebook was that the image had "too much bare skin or sexual undertones."Gjerskov highlighted the absurdity of the situation, calling it ridiculous that the image caused Facebook's moderators to block the link. Many people appeared to agree, and as the story began to get more attention, Facebook quickly backtracked and admitted the removal was in error. It restored the link.Many of the news reports on the story concluded with Facebook's reversal, but the image actually did not return to Facebook. Due to copyright law in Denmark, the statue is still considered to be covered by copyright (until 2029, 70 years after Eriksen's death), and his estate has been fairly aggressive in demanding licensing and royalty payments. Because of that, TV2, which hosted Gjerskov's blog, chose to remove the image that caused the takedown in the first place -- not to appease Facebook's moderation, but to avoid a copyright issue from the Erikson estate, even though a copyright on the statue itself is different from copyright on images of the statue.Decisions to be made by Facebook:
How do you write rules regarding nudity that take into account art or cultural landmarks?
Is taking down a link due to images that are automatically embedded via the OpenGraph feature the best solution? Would it make sense to simply remove that image while leaving the link, or have a different image show?
Questions and policy implications to consider:
The line between artistic works that depict nudity and works that violate a nudity policy or include sexual overtones is often a very subjective judgment call. How can companies craft rules that are enforced consistently across a diverse set of moderators, often with different cultural backgrounds and experiences?
A strict policy against nudity is likely to capture many artistic situations. Is that a reasonable trade-off for websites that seek to be family friendly?
How can copyright intersect with other types of challenges regarding content moderation?
Resolution: As noted in the case study, the link was restored after Facebook admitted error, but the image was taken off the website (and, thus, the link on Facebook) due to copyright concerns from TV2. Facebook's policies already allow many forms of artistic nudity, but mistaken removals for nudity still feel common, given the huge scale of review decisions made on a daily basis. The statue has continued to be a cultural landmark in Denmark, and is often used for making political statements, leading to more photographs being shared of it. Just recently it was vandalized to promote democracy in Hong Kong and to protest racism.Originally posted to the Trust & Safety Foundation website
Back in 2018, after a year of truly hammering down on independent game studios producing what many would consider "adult" or "porn" games, Valve finally relented and said its Steam platform would be more open. As part of the announcement, Valve indicated it would take a hands off approach to game curation and allow more adult-style games generally, later clarifying that it intended to prevent only "troll" games. If all of that sounds incredibly vague and ripe for creating a massive and confusing mess, well, that's precisely what happened. Developers saw the chance that Steam would accept their games as a crapshoot, with some making it through and others not. The reasons for denials were equally vague and arbitrary.The dust has settled somewhat in the subsequent years, but the lack of clarity for developers in what is allowed or not continues to rear its ugly head. One recent case is with Super Seducer 3, a game that appears to now be fully denied from Steam despite the developer being way open to working with Steam on any perceived issues.
Valve has refused to approve controversial pickup artist game Super Seducer 3 for sale on Steam. The company says the game breaks a rule, saying that Steam does "not ship sexually explicit images of real people," according to messages posted on Twitter by game creator Richard La Ruina.The first game in the series was suspended from Kickstarter and then barred from the PlayStation store back in 2018, but that game and its sequel continue to be available on Steam to this day.
To get it out of the way, Super Seducer 3 sounds almost precisely like the kind of game that I would absolutely not want to play. That being said, just because something is not my cup of tea neither makes it full on pornography, nor does it mean it runs afoul of Steam's supposedly new lax restrictions. Adding everything up, actually, nothing about what Steam is doing here seems to make sense.As noted above, the first two games in the series are currently for sale on Steam. It's also worth noting that the feedback the developer got seemed to indicate that the issue with the game was a brand new standard of not showing any sexually explicit material featuring images of real live people.
In the case of Super Seducer 3, Valve seems to be citing a newly articulated standard of "not ship[ping] sexually explicit images of real people" on top of the "illegal" and "straight-up trolling" standards of the past. The vast majority of games listed under Steam's "Sexual Content" store page feature hand-drawn 2D or computer-animated images of the scantily clad characters in question, rather than photographs or filmed images of real actors. On the other hand, titles like "Bad Ass Babes" or "iStripper" that do feature nude images of real actors have recently been removed from the Steam Store (though extremely NSFW discussion pages still remain on Steam to commemorate their brief availability).
Notably, the developer claims that the actual images included in the game would pass the Instagram test. This generally means that, while they may be sexual in nature, the images don't contain anything crossing the arbitrary naughty-lines of nipples, penises, or vaginas. Also notable is that in February the developer and Steam were working together to get the game in a state where Valve felt it could approve its release, before Steam suddenly indicated that, no, all parties were at an impasse and Steam's decision not to allow the game was now final.
Later in February, La Ruina said he had received "clearer guidelines" from Valve on what changes needed to be made to get Steam approval for Super Seducer 3 and later said he had begun making "targeted cuts" based on that guidance and "lawyer advice." But over the weekend, La Ruina said that Valve told him they were "at an impasse" and that "we are not going to sell the game or re-review it... this decision is final.""I do not feel like we are at any kind of impasse," he wrote in a message to Valve. "I'm ready to take a butcher knife to the game and take weeks to make all kinds of edits."
It seems as though he will not have that opportunity, with Steam digging in its heels for whatever reason.Content moderation sucks and is extremely hard to do in a sensical way. We've discussed this over and over again here at Techdirt. But, if you are going to do any kind of content moderation, particularly under the guise of having a mostly hands-off approach, it sure would be nice for developers to have a general idea for what will get approved and what won't. Otherwise, well, you get this.
Location data is the new growth market. Data harvested from apps is sold to data brokers who, in turn, sell this to whoever's buying. Lately, the buyers have been a number of government agencies, including the CBP, ICE, DEA, Secret Service, IRS, and -- a bit more worryingly -- the Defense Department.The mileage varies for purchasers. The location data generally isn't as accurate as that obtained directly from service providers. On the other hand, putting a couple of middle men between the app data and the purchase of data helps agencies steer clear of Constitutional issues related to the Supreme Court's Carpenter decision, which introduced a warrant mandate for engaging in proxy tracking of people via cell service providers.But phones aren't the only objects that generate a wealth of location data. Cars go almost as many places as phones do, providing data brokers with yet another source of possibly useful location data that government agencies might be interested in obtaining access to. Here's Joseph Cox of Vice with more details:
A surveillance contractor that has previously sold services to the U.S. military is advertising a product that it says can locate the real-time locations of specific cars in nearly any country on Earth. It says it does this by using data collected and sent by the cars and their components themselves, according to a document obtained by Motherboard."Ulysses can provide our clients with the ability to remotely geolocate vehicles in nearly every country except for North Korea and Cuba on a near real time basis," the document, written by contractor The Ulysses Group, reads. "Currently, we can access over 15 billion vehicle locations around the world every month," the document adds.
Historical data is cool. But what's even cooler is real-time tracking of vehicle movements. Of course the DoD would be interested in this. It has a drone strike program that's thirsty for location data and has relied on even more questionable data in the past to make extrajudicial "death from above" decisions in the past.Phones are reliable snitches. So are cars -- a fact that may come as a surprise to car owners who haven't been paying attention to tech developments over the past several years. Plenty of data is constantly captured by internal "black boxes," but tends to only be retained when there's a collision. But the interconnectedness of cars and people's phones provides new data-gathering opportunities.Then there are the car manufacturers themselves, which apparently feel driver data is theirs for the taking and are willing to sell it to third parties who are (also apparently) willing to sell all of this to government agencies.
"Vehicle telematics is data transmitted from the vehicle to the automaker or OEM through embedded communications systems in the car," the Ulysses document continues. "Among the thousands of other data points, vehicle location data is transmitted on a constant and near real time basis while the vehicle is operating."
This document wasn't obtained from FOIA requests. It actually couldn't be -- not if Ulysses isn't currently selling to government agencies. It was actually obtained by Senator Ron Wyden, who shared it with Vice's tech-related offshoot, Motherboard. As Wyden noted while handing it over, very little is known about these under-the-radar suppliers of location data and their government customers. This company may have no (acknowledged) government customers at this point, but real-time access to vehicle movement is something plenty of government agencies would be willing to pay for.And Ulysses has inroads with the military. Cox/Motherboard have worked with US Special Operations Command in the past to help it track financial transactions made by entities in foreign nations in hopes of better understanding how our enemies convert "buying local" into a weapon against US interests.Unfortunately, the documents don't explain how Ulysses obtains this data or which car manufacturers/OEM distributors are contributing to the real-time location data pool. But it could be dozens of interoperable parts. Manufacturers gather some data. So does the manufacturer of integrated entertainment systems and Bluetooth-compatible devices, including whoever's combining forces to provide in-car navigation. Then there are services drivers use, like parking garages, which may collect additional data about vehicles in the area. It all adds up to an easy way to track cars. This data may not be able to say for sure who's driving, but information gathered from connected devices may make it easier to determine identity. All of this adds up to a big pile of data that could easily be wielded to do things like engage in drone strikes.Even if it's not being used to kill people, it can be used to track people. It beats automatic license plate readers which only trigger responses when target vehicles pass cameras. It beats third-party app data because it can be used in real time. And it beats protections we're supposed to have in place following the Supreme Court's Carpenter decision. A car may not be a person, but it's pretty damn close. And data only another data broker away can link cars to people and allow government agencies to make plenty of inferences about their day-to-day activities. This is happening now and it's all under the radar, for the most part. It's an unregulated market that wields useful tools against their users, subverting their expectations of privacy and making it easier for governments to engage in off-the-constitutional-books tracking.
While denialism over cord-cutting is still somewhat a thing, a vastly larger segment of the public can finally see the writing on the wall. While the cable industry's first brave tactic in dealing with the cord-cutting issue was to boldly pretend as though it didn't exist, industry executives more recently realize that there is a bloodbath coming its way. There are few roadblocks that remain for a full on tsunami of cord-cutters and one of the most significant of those is still live sports broadcasting. This, of course, is something I've been screaming about on this site for years: the moment that people don't need to rely on cable television to follow their favorite sports teams live, cable will lose an insane number of subscribers.Over the past few years, the major American sports leagues have certainly inched in that direction. Notable for this post, 2017 saw the NFL ink a new streaming deal for mobile streaming with Verizon. The NFL had a long partnership with Verizon for mobile streaming already, but the notable aspect of the new deal was that NFL game streaming was suddenly not exclusive. Other streaming services could get in the game. And, while you can't draw a direct line to it, the tangential story of how the NFL just inked an exclusive deal with Amazon Prime for the broadcast rights for Thursday Night Football certainly shows you where this is all heading.
The deal runs from 2023 to 2033 and, according to a report from CNBC, will see Amazon pay $1 billion per year for the TNF package. Thursday Night Football is the NFL's newest and cheapest TV package, but the deal lets Amazon creep closer to parity with the NFL's other licensees, mainstream TV networks like Fox Sports, ABC/ESPN (Disney), CBS (Viacom), and NBC (Comcast). CNBC's report has the other four channels paying upward of $2 billion per year each, and unlike Amazon, the TV networks get to take turns airing the Super Bowl.
The exclusivity for Amazon seems like a mistake for the NFL, which really should want its product viewed in as many places as possible. On the other hand: 1 billion dollars a year. The Thursday lineups are typically one or two games each Thursday, far less than the deals for Sunday games. It's an incredible amount of money to pay just so Amazon can exclusively show the NFL's worst games of the week. But it also shows not only that Amazon understands the power and draw of live sports like this, but also that the NFL understands the power and draw of streaming services.Building on that point, the NFL is also loosening up what its other broadcast partners can do in terms of streaming games.
The NFL's new deal contains streaming provisions for the other providers, too. Each network can now simulcast their games on their streaming service, and some deals scored one or two streaming-exclusive games. Disney's ABC and ESPN games are also allowed on ESPN+, and ESPN+ will get one exclusive game per season, the London "International Series" game. NBC games can also appear on the streaming service Peacock, and Peacock is getting "an exclusive feed of a select number of NFL games." CBS can stream games on Paramount+. Fox Sports, which wasn't part of Disney's acquisition of Fox, apparently has a streaming service called "Tubi," which can now simulcast the Fox games.
All of which is to say that the NFL is widely opening up its games to be streamed in more and more places. This shouldn't come as the world's biggest surprise, frankly. The NFL is a money-making operation and it does its marketing and promotional work better than most leagues. The very smart people handling broadcast contracts for the league certainly can see where the future in broadcasting games is and it sure looks like they are only going further and further into streaming.If pro sports leagues follow suit, the end of cable television as we know it is nigh.
Summary: A wild few days for the stock market resulted in some interesting moderation moves by a handful of communications/social media platforms.A group of unassociated retail investors (i.e. day traders playing the stock market with the assistance of services like Robin Hood) gathering at the Wall Street Bets subreddit started a mini-revolution by refusing to believe Gamestop stock was worth as little as some hedge funds believed it was.The initial surge in Gamestop's stock price was soon followed by a runaway escalation, some of it a direct response to a hedge fund's large (and exposed) short position. Melvin Capital -- the hedge fund targeted by Wall Street Bets denizens -- had announced its belief Gamestop stock wasn't worth the price it was at and had put its money where its mouth was by taking a large short position that would only pay off if the stock price continued to drop.As the stock soared from less than $5/share to over $150/share, people began flooding to r/wallstreetbets. This forced the first moderation move. Moderators briefly took the subreddit private in an attempt to stem the flow of newcomers and get a handle on the issues these sort of influxes bring with them.Wall Street Bets moved some of the conversation over to Discord, which prompted another set of moderation moves. Discord banned the server, claiming users routinely violated guidelines on hate speech, incitement of violence, and spreading misinformation. This was initially viewed as another attempt to rein in vengeful retail investors who were inflicting pain on hedge funds: the Big Guys making sure the Little Guys weren't allowed on the playing field. (Melvin Capital received a $2.75 billion cash infusion after its Gamestop short was blown up by Gamestop's unprecedented rise in price.)But it wasn't as conspiratorial as it first appeared. The users who frequented a subreddit that described itself as "4chan with a Bloomberg terminal" were very abrasive and the addition of mics to the mix at the Discord server made things worse by doubling the amount of noise -- noise that often included hate speech and plenty of insensitive language.The ban was dropped and the server was re-enabled by Discord, which announced it was stepping in to more directly moderate content and users. With over 300,000 users, the server had apparently grown too large, too quickly, making it all but impossible for Wall Street Bets moderators to handle on their own. This partially reversed the earlier narrative, turning Discord into the Big Guy helping out the Little Guy, rather than allowing them to be silenced permanently due to the actions of their worst users.Decisions to be made by Discord:
Do temporary bans harm goodwill and chase users from the platform? Is this the expected result when this happens?
Is participating directly in moderation of heavily-trafficked servers scalable?
How much moderation should be left in the hands of server moderators? Should they be allowed more flexibility when moderating questionable content that may violate Discord rules but is otherwise still legal?
Questions and policy implications to consider:
Are temporary bans of servers more effective than other, more scaled escalation efforts? Are changes more immediate?
Is the fallout from bans offset by the exit of problem users? Or do server bans tend to entrench the worst users to the detriment of new users and moderators who are left to clean up the mess?
As more users move to Discord, is the platform capable of stepping in earlier to head off developing problems before they reach the point a ban is warranted?
Does offloading moderation to users of the service increase the possibility of rules violations? If so, should Discord take more direct control earlier when problematic content is reported?
Resolution: The Wall Street Bets Discord server is still up and running. Its core clientele likely hasn't changed much, which means moderation is still a full-time job. An influx of new users following press coverage of this particular group of retail traders may dilute the user base, but it's unlikely to turn WSB into a genteel community of stock market amateurs. Discord's assistance will likely be needed for the foreseeable futureOriginally published on the Trust & Safety Foundation website.
A lot of rights just vanish into the ether once you're incarcerated. Some of this makes sense. You have almost no privacy rights when being housed by the state. Your cell can be searched and your First Amendment right to freedom of association can be curtailed in order to prevent criminal conspiracies from being implemented behind bars.But rights don't disappear completely. The government has an obligation to make sure you're cared for and fed properly -- something that rarely seems to matter to jailers.Treating people as property has negative outcomes. Not only are "good" prisoners expected to work for pennies a day, but their families are expected to absorb outlandish expenses just to remain in contact with their incarcerated loved ones. The government loves its paywalls and it starts with prison phone services.Cellphone adoption changed the math for service providers. After a certain point, customers were unwilling to pay per text message. And long distance providers realized they could do almost nothing to continue to screw over phone users who called people outside of their area codes. Some equity was achieved once providers realized "long distance" was only a figure of profitable speech and text messages were something people expected to be free, rather than a service that paid phone companies per character typed.But if you're in prison, it's still 1997. The real world is completely different but your world is controlled by companies that know how to leverage communications into a profitable commodity. As much as we, the people, apparently hate the accused and incarcerated, they're super useful when it comes to funding local spending. Caged people are still considered "taxpayers," even when they can't generate income or vote in elections.So, for years, we've chosen to additionally punish inmates by turning basic communication options into high priced commodities. And we've decided they don't have any right to complain, even when the fees are astronomical or prison contractors are either helping law enforcement listen in to conversations with their legal reps or making it so prohibitively expensive only the richest of us can support an incarcerated person's desire to remain connected to their loved ones.Connecticut legislators have had enough. Whether it will be enough to flip the status quo table remains to be seen. But, for now, a bill proposed by the Connecticut House aims to strip the profit from for-profit service providers, as well as the for-profit prisons that pad their budgets with kickbacks from prison phone service providers. (h/t Kathy Morse)
Connecticut holds the dismal distinction of being the state with the most expensive prison phone calls in the country. But a new bill in the state legislature may soon make Connecticut the first state to make prison phone calls free.Senate Bill 520 would require Connecticut state prisons to offer telephone or other communication to incarcerated people free of charge, at a minimum of 90 minutes per day. The state could not collect any revenue from operating these services.
Seems like a reasonable response. 90 minutes per day should make most calls from prisons free for all but the most talkative. And I hope those profiting from these services socked some money away for a legislative rainy day. They've certainly had the opportunity. As this report notes, prison call services raked in over $13 million in fees in 2018 alone. There's no reason to believe this amount declined in 2019 or 2020, especially when 2020 gave people millions of reasons to avoid in-person visits with anyone.The bill [PDF] is short and sweet -- somewhat of a surprise considering it was crafted by public servants who often seem to believe they're being paid by the word. Here it is in its entirety:
AN ACT CONCERNING THE COST OF TELECOMMUNICATION SERVICES FOR INCARCERATED PERSONS.Be it enacted by the Senate and House of Representatives in General Assembly convened:That title 18 of the general statutes be amended to require the Department of Correction to provide voice or other telecommunication services to incarcerated persons free of cost for a minimum of ninety minutes per day.Statement of Purpose: To provide certain cost-free telecommunication services for incarcerated persons.
As it says on the tin, the purpose of the legislation is to provide prisoners with free phone calls, rather than allow them to be subjected to per-minute fees last viewed as "reasonable" sometime in the early 1990s. (And only viewed as "reasonable" by long distance providers, not the captive market they provided service to. [And "captive" means people who have few options in terms of service providers, not just those locked behind physical bars.])Expect significant pushback. And it won't just be coming from prison phone service providers like Securus. It will also come from local law enforcement agencies which receive a percentage of these fees -- something most people would call a kickback, even if law enforcement continues to argue that it isn't.If this passes, this will be the first successful effort that covers a whole state. Pockets of prison phone fee resistance have been found elsewhere prior to this (New York City, San Francisco) but it has yet to be implemented at state level. This bill would be the first to make it illegal to charge for prison phone calls across an entire state.This is the sort of legislation that should be adopted across the nation. Prisons -- for better or worse -- are a public service. They shouldn't be subject to the predatory behavior of private companies. Making it prohibitively expensive to talk to loved ones should be considered "cruel," if not "unusual." It serves no deterrent effect. All it does is enforce the unspoken fact that people in prisons are no longer considered "people." That's not how our justice system is supposed to work.
Readers here will remember that the last quarter of 2020 was a very, very bad time for streaming platform Twitch. It all started when the RIAA came calling on the Amazon-owned platform, issuing a slew of DMCA takedown notices over all sorts of music included in the recorded streams of creators. Instead of simply taking the content down and issuing a notice to creators, Twitch simply perma-deleted the content in question, with no recourse for a counternotice given to creators as an option. After an explosive backlash, Twitch apologized, but still didn't offer any clarity or tools for creators to understand what might be infringing content and what was being targeted. Instead, during its remote convention, Twitch only promised more information and tools in the coming months.Five months later, Twitch has finally informed its creators of the progress its made on that front: tools on the site to help creators remove material flagged as infringement and some more clarity on what is infringing.
Twitch announced in an email to streamers that the site has added new tools today to help creators see where they stand with takedown requests and copyright strikes. Twitch also added tools to let streamers mass delete their recorded streams. It’s a smart move because it gives streamers better tools to play on the right side of copyright law. (If you don’t, and you rack up enough copyright strikes, you get permabanned.)Now, in the event that a streamer gets hit with a DMCA takedown request, it’ll show up in their on-site inbox; Twitch’s video producer will also show the number of copyright strikes a channel has received. In addition, streamers can now unpublish or delete all their VODs at once (or in batches of 20 at a time).
It's not that Twitch's new tool is a bad thing. More clarity for creators and an increased ability to granularly address DMCA notices for their content is a decidedly good thing. But it all feels both extremely late in coming because, obviously, Twitch should have known that DMCA notices on creators from the copyright industries would be a thing.But if you're looking for encouraging signs that Twitch is getting its shit together in policing its own site, you certainly won't find it in the story of how one creator got one of his accounts banned for an account name that was "harassment via username." The user he's accused of harassing would appear to be... himself.
It might be an understatement to say that popular Minecraft YouTuber and streamer George “GeorgeNotFound’’ Davidson had a weird weekend. Within two days, he got banned from Twitch, possibly un-banned, definitely banned again, and unbanned (again?). Why? “Harassment via username,” according to Twitch. Problem is, the only person he could have possibly been harassing was himself.The new, different ban email from Twitch accused him of “harassment via username” and once again informed him that the suspension was indefinite—aka, a ban. This one also further elaborated on what exactly he might have done, without telling him exactly what he definitely did. Examples included “having a username that explicitly insults another user,” “having a username that threatens negative action towards another user,” and “having a username that promotes self-harm in conjunction with malicious chat activity, such as telling another user to kill themselves.”
Obviously, "ThisIsNotGeorgeNotFound" does not do any of those things. And, yet, his account was banned for a second time. He has since had the account unbanned. Which, fine, but what the hell is going on at Twitch that it never seems to get any of this right? And if the platform can't be trusted to do something as relatively simple as properly policing creators' handles, why would anyone have any confidence that it's going to navigate waters as treacherous as the Copyright Seas any better?Look, Twitch grew up fast. And nobody expects any growing platform to be perfect from the get go. But with the backing of a parent company like Amazon, it certainly should be able to do better by its creators than this.
Legal scholarship sucks. It's interminably long. It's relentlessly boring. And it's confusingly esoteric. But the worst thing about legal scholarship is the footnotes. Every sentence gets one1. Banal statement of historical fact? Footnote. Recitation of hornbook law? Footnote. General observation about scholarly consensus? Footnote. Original observation? Footnote as well, I guess.It's a mess. In theory, legal scholarship should be free as a bird. After all, it's one of the only academic disciplines to have avoided peer review. But in practice, it's every bit as formalistic as any other academic discipline, just in a slightly different way. You can check out of Hotel Academia, but you can't leave.Most academic disciplines use peer review to evaluate the quality of articles submitted for publication. In a nutshell, anonymous scholars working in the same area read the article and decide whether it's good enough to publish. Sounds great, except for the fact that the people reviewing an article have a slew of perverse incentives. After all, what if the article makes arguments you dislike? Even worse, what if it criticizes you? And if you are going to recommend publication, why not insist on citations to your own work? After all, it's obviously relevant and important.But the problems with peer review run even deeper. For better or worse, it does a pretty good job of ensuring that articles don't jump the shark and conform to the conventional wisdom of the discipline. Of course, conformity can be a virtue. But it can also help camouflage flaws. Peer review is good at catching outliers, but not so good at catching liars. As documented by websites like Retraction Watch, plenty of scholars have sailed through the peer review process by just fabricating data to support appealing conclusions. Diederik Stapel, eat your heart out!Anyway, legal scholarship is an outlier, because there's no peer review. Of course, it still has gatekeepers. But unusually, the people deciding which articles to publish are students, not professors. Why? Historical accident. Law was a profession long before it became an academic discipline, and law schools are a relatively recent invention. Law students invented the law review in the late 19th century, and legal scholars just ran with it.Asking law students to evaluate the quality of legal scholarship and decide what to publish isn't ideal. They don't know anything about legal scholarship. They don't even know all that much about the law yet. But they aren't stupid! After all, they're in law school. So they rely on heuristics to help them decide what to publish. One important heuristic is prestige. The more impressive the author's credentials, the more promising the article. Or at least, chasing prestige is always a safe choice, a lesson well-observed by many practicing lawyers as well.Another key heuristic is footnotes. Indeed, footnotes are almost the raison d'etre of legal scholarship. An article with no footnotes is a non-starter. An article with only a few footnotes is suspect. But an article with a whole slew of footnotes is enticing, especially if they're already properly Bluebooked. After all, much of the labor of the law review editor is checking footnotes, correcting footnotes, adding footnotes, and adding to footnotes. So many footnotes!Most law review articles have hundreds of footnotes. Indeed, the footnotes often overwhelm the text. It's not uncommon for law review articles to have entire pages that consist of nothing but a footnote.It's a struggle. Footnotes can be immensely helpful. They bolster the author's credibility by signaling expertise and point readers to useful sources of additional information. What's more, they implicitly endorse the scholarship they cite and elevate the profile of its author. Every citation matters, every citation is good. But how to know what to cite? And even more vexing, how to know when a citation is missing? So much scholarship gets published, it's impossible to read it all, let alone remember what you've read. It's easy to miss or forget something relevant and important. Legal scholars tend to cite anything that comes to mind and hope for the best.There's gotta be a better way. Thankfully, in 2020, Rob Anderson and Trent Wenzel created ScholarSift, a computer program that uses machine learning to analyze legal scholarship and identify the most relevant articles. Anderson is a law professor at Pepperdine University Caruso School of Law and Wenzel is a software developer. They teamed up to produce a platform intended to make legal scholarship more efficient. Essentially, ScholarSift tells authors which articles they should be citing, and tells editors whether an article is novel.It works really well. As far as I can tell, ScholarSift is kind of like Turnitin in reverse. It compares the text of a law review article to a huge database of law review articles and tells you which ones are similar. Unsurprisingly, it turns out that machine learning is really good at identifying relevant scholarship. And ScholarSift seems to do a better job at identifying relevant scholarship than pricey legacy platforms like Westlaw and Lexis.One of the many cool things about ScholarSift is its potential to make legal scholarship more equitable. In legal scholarship, as everywhere, fame begets fame. All too often, fame means the usual suspects get all the attention, and it's a struggle for marginalized scholars to get the attention they deserve. Unlike other kinds of machine learning programs, which seem almost designed to reinforce unfortunate prejudices, ScholarSift seems to do the opposite, highlighting authors who might otherwise be overlooked. That's important and valuable. I think Anderson and Wenzel are on to something, and I agree that ScholarSift could improve citation practices in legal scholarship.But I also wonder whether the implications of ScholarSift are even more radical than they imagine? The primary point of footnotes is to identify relevant sources that readers will find helpful. That's great. And yet, it can also be overwhelming. Often, people would rather just read the article, and ignore the sources, which can become distracting, even overwhelming. Anderson and Wenzel argue that ScholarSift can tell authors which articles to cite. I wonder if it couldn't also make citations pointless. After all, readers can use ScholarSift, just as well as authors.Maybe ScholarSift could free legal scholarship from the burden of oppressive footnotes? Why bother including a litany of relevant sources when a computer program can generate it automatically? Maybe legal scholarship could adopt a new norm in which authors only cite works a computer wouldn't flag as relevant? Apparently, it's still possible. I recently published an essay titled Deodand. I'm told that ScholarSift generated no suggestions about what it should cite. But I still thought of some. The citation is dead; long live the citation.Brian L. Frye is Spears-Gilbert Professor of Law at the University of Kentucky College of Law
1. Orin S. Kerr, A Theory of Law, 16 Green Bag 2d 111 (2012). (It is a common practice among law review editors to demand that authors support every claim with a citation. These demands can cause major headaches for legal scholars. Some claims are so obvious or obscure that they have not been made before. Other claims are made up or false, making them more difficult to support using references to the existing literature.).
Remember Sharyl Attkisson? If not, she is a former CNN and CBS journalist who made something of a name for herself both in reporting on the Obama administration, often critically, as well as for accusing that same administration of hacking into her computer and home network. Whatever you think of her reporting, her lawsuit against Eric Holder and the Justice Department over the hacking claims was crazy-pants. Essentially, she took a bunch of the same technological glitches all of us deal with on a daily basis -- flickering television screens, a stuck backspace key on her computer -- and wove that into a giant conspiracy against her and her reporting. She made a big deal in the suit, and her subsequent book on the matter, over some "computer experts" she relied on to confirm that she was a victim of government hacking, except those experts remained largely anonymous and were even, in some cases, third party people she'd never met. For that and other reasons related to how quickly she managed to do initial discovery, the case was tossed by the courts in 2019.That didn't stop Attkisson's crusade against the government, however. In 2020, she filed suit against Rod Rosenstein, again accusing the government of spying on her and her family. To back this up, she again relied on an anonymous source, but that source has since been revealed. And, well...
The source was initially anonymous but later identified by Attkisson’s attorneys as Ryan White, an alleged former FBI informant. White is a QAnon conspiracy adherent who appears to have been the source of bizarre child-abuse allegations that Georgia attorney Lin Wood leveled at Chief Justice John Roberts last year, according to a report in the Daily Beast.
And so here we are yet again, with an extremely serious claim lodged against the federal government that relies on the tinfoil hat crowd as "evidence." In addition, Attkisson lays out again the computer and network hacking claims, with a named "computer forensic" expert who apparently told her that there was spyware on her machine, that they had logs for where these breaches originated (such as a Ritz Carlton hotel), and that the tools used for all of this appeared to be the sort typically only available to government actors. And here too, just as in her original lawsuit, there are tons of details and claims that reveal that, like so many other conspiracy theories, there is a duality problem. Namely, that the federal government is so nefarious and great at hacking that they completely compromised nearly every machine Attkisson used at work and at home, but that same federal government was too stupid to mask the IP address from which it launched these attacks.For example, her suit claims that these attacks were originally launched from the United States Postal Service in Baltimore, where some staff involved in infiltrating The Silk Road worked. The contention of her Qanon witness is that the spying on Attkisson somehow happened as an offshoot of a multi-agency task force against dark web dealings. And to believe all of that, you again have to believe that the government's l337 h4x0rs didn't bother to cover their USPS tracks.But those are conversations about the merits of Attkisson's case. We don't really need to get that far, because her suit has again been tossed on essentially procedural grounds.
Bennett, an appointee of President George W. Bush, also ruled that there was inadequate indication that any surveillance of Attkisson involved activities in Maryland, which Bennett’s court has jurisdiction over.“The Amended Complaint is devoid of any factual allegations with respect to actual conduct related to the alleged surveillance which occurred in Maryland,” Bennett wrote in his 20-page decision, issued on Tuesday. “The conclusory statements that the alleged surveillance was performed by individuals in Maryland, unsupported by any factual allegations, lie in contrast to the Plaintiffs’ numerous assertions regarding conduct performed and events which occurred in the Eastern District of Virginia.”
So, on the one hand, it's not as if the court is saying that Attkisson's claims are nonsense. And maybe this will lead to her refiling her lawsuit in the proper jurisdiction. On the other hand, it doesn't inspire a great deal of confidence in the merits of her claims or her legal team that they can't even get the case filed in the correct jurisdiction.So, do I think this is the last we'll hear from Sharyl Attkisson's lawsuits over the supposed hacking of all her things? No, I doubt it. After all, she must certainly have another book to write and promote soon.
Today, we finish our journey through the winners of the third annual public domain game jam, Gaming Like It's 1925. We've covered ~THE GREAT GATSBY~, The Great Gatsby Tabletop Roleplaying Game, Art Apart and There Are No Eyes Here, Remembering Grußau, and Rhythm Action Gatsby, and now it's time for the final winner: Best Analog Game recipient Fish Magic by David Harris.David Harris is our one returning winner this year, having topped the same category in Gaming Like It's 1924 with the game The 24th Kandinsky. This year's entry is at once similar and very different: like that previous game, Fish Magic is about exploring the work of a famous painter, but it takes an entirely new approach to doing so. And that change of approach underlines what makes both games so compelling: their mechanics are carefully crafted to perfectly suit the artworks at their core. Where The 24th Kandinsky was about manipulating the shapes and colors of Kandinsky's abstract art, Fish Magic is about letting the evocative surrealism of the titular painting by Paul Klee spark your imagination. To that end, the painting becomes the game board, and is populated by words randomly selected from a list, poetically divided into the "domains" of Celestial, Earthly, and Aquatic:
The players take turns moving between nodes on the board, taking a word from each one to build a collection, which they can then use to build phrases when they are ready. The goal is to convince the other players that your constructed phrase represents either a type of "magic fish", or a type of "fish magic". Points are gained by winning the support of other players for your fish magic or your magic fish, and reduced according to how many extra words you have sitting in your collection, thus encouraging players to be extra creative and find ways to make convincing phrases with the words they have, rather than just chasing the ones they want.If you're wondering what exactly makes for a good type of fish magic or magic fish, or what that even means — well, that's kind of the point, and exactly why this approach to the game is so perfect for the source material! Paul Klee's painting is appreciated for its magical depiction of a mysterious and intriguing underwater world, and the way its techniques — a layer of black paint scratched off to reveal vibrant colours underneath, and a square of muslin glued to the center of the canvas — suggest wondrous depths obscured by a hazy curtain. Fish Magic the painting provokes imagination and flights of fancy, and Fish Magic the game adds just enough mechanical scaffolding to make this process explicit and collaborative.Anyone could slap a board layout on a famous painting, add some rules, and call it a game — but it takes a real appreciation for the painting, and a real intent to do something meaningful with it, to craft such a simple premise that so perfectly aligns with the source material. Like The 24th Kandinsky last year, just a quick read of the rules was enough to make our judges eager to play, and it was an easy choice for the Best Analog Game.You can get all the materials for Fish Magic on Itch, and check out the other jam entries too. Congratulations to David Harris for the win!And that's a wrap on our series of winner spotlights for Gaming Like It's 1925. Another congratulations to all the winners, and a big thanks to every designer who submitted an entry. Keep on mining that public domain, and start perusing lists of works that will be entering the public domain next year when we'll be back with Gaming Like It's 1926!
The Deus Ex franchise has found its way onto Techdirt's pages a couple of times in the past. If you're not familiar with the series, it's a cyberpunk-ish take on the near future with broad themes around human augmentation, and the weaving of broad and famous conspiracy theories. That perhaps makes it somewhat ironic that several of our posts dealing with the franchise have to do with mass media outlets getting confused into thinking its augmentation stories were real life, or the conspiracy theories that centered around leaks for the original game's sequel were true. The conspiracy theories woven into the original Deus Ex storyline were of the grand variety: takeover of government by biomedical companies pushing a vaccine for a sickness it created, the illuminati, FEMA takeovers, AI-driven surveillance of the public, etc.And it's the fact that such conspiracy-driven thinking today led Warren Spector, the creator of the series, to recently state that he probably wouldn't have created the game today if given the chance.
Deus Ex was originally released in 2000 but took place in an alternate 2052 where many of the real world conspiracy theories have come true. The plot included references to vaccinations, black helicopters, FEMA, and ECHELON amongst others, some of which have connotations to real-life events. Spector said, “Interestingly, I’m not sure I’d make Deus Ex today. The conspiracy theories we wrote about are now part of the real world. I don’t want to support that.”
This could be a post about how drastically disinformation has altered our society. Or it could be a post about how some of the very real aspects of modern surveillance have so warped the trust between the public and government so as to allow more conspiracy theories to better breathe.But I think instead I'd like to focus on how clearly this illustrates the artistic nature of video games. The desire, or not, to create certain kinds of art due to the reflection such art receives from the broader society is exactly the kind of thing artists operating in other artforms have to deal with. Art imitates life, yes, but in the case of speculative fiction like this, it appears that life can also imitate art. Spector notes that seeing what has happened in the world since Deus Ex was first released in 2000 has had a profound effect on him as an artist.
Earlier, Spector had commented on how he was “constantly amazed at how accurate our view of the world ended up being. Frankly it freaks me out a bit.” Some of the conspiracy theories that didn’t end up in the game were those surrounding Denver Airport because they were considered “too silly to include in the game.” These include theories about secret tunnels, connections to aliens and Nazi secret societies, and hidden messages within the airport’s artwork. Spector is now incredulous that they’re “something people actually believe.”
If you had thought that the debate over whether video games are an artform was settled, you haven't been paying attention. To this day, there are very real implications for the courts and wider government understanding the artform, particularly when it comes to whether video games receive the same First Amendment protections as movies and literature.Hopefully, artists like Spector, engaging in these types of artistic internal debates, can help solidify the understanding further.
Summary: After Amazon refused to continue hosting Parler, the Twitter competitor favored by the American far-right, former Parler users looking to communicate with each other -- but dodge strict moderation -- adopted Telegram as their go-to service. Following the attack on the Capitol building in Washington, DC, chat app Telegram added 25 million users in a little over 72 hours.Telegram has long been home to far-right groups, who often find their communications options limited by moderation policies that, unsurprisingly, remove violent or hateful content. Telegram's moderation is comparatively more lax than several of its social media competitors, making it the app of choice for far right personalities.But Telegram appears to be attempting to handle the influx of users -- along with an influx of disturbing content. Some channels broadcasting extremist content have been removed by Telegram as the increasingly-popular chat service flexes its (until now rarely used) moderation muscle. According to the service, at least fifteen channels were removed by Telegram moderators, some of which were filled with white supremacist content.Unfortunately, policing the service remains difficult. While Telegram claims to have blocked "dozens" of channels containing "calls to violence," journalists have had little trouble finding similarly violent content on the service, which either has eluded moderation or is being ignored by Telegram. While Telegram appears responsive to some notifications of potentially-illegal content, it also appears to be inconsistent in applying its own rule against inciting violence.Decisions to be made by Telegram:
Should content contained in private chats (rather than public channels) be subjected to the same rules concerning violent content?
Given that many of its users migrated to Telegram after being banned elsewhere for posting extremist content, should the platform increase its moderation efforts targeting calls for violence?
Should a process be put in place to help prevent banned users/channels from resurfacing on Telegram under new names?
Questions and policy implications to consider:
Does Telegram's promise of user security and privacy dissuade it from engaging in more active content moderation?
Is context considered when engaging in moderation to avoid accidentally blocking people sharing content they feel is concerning, rather than promoting the content or endorsing its message?
Do reports of mass content violations (and lax moderation) draw extremists to Telegram? Does this increase the chance of the moderation problem "snowballing" into something that can no longer be managed effectively?
Resolution: Telegram continues to take a mostly hands-off approach to moderation but appears to be more responsive to complaints about calls to violence than it has been in the past. As it continues to draw more users -- many of whom have been kicked off other platforms -- its existing moderation issues are only going to increase.Originally posted to the Trust & Safety Foundation website.
In 2014, Cleveland police officer Timothy Loehmann exited his cop car and -- within seconds -- killed 12-year-old Tamir Rice, who was playing with a toy gun in a city park.Say what you will about Airsoft guns and their ability to mimic real guns, but Tamir Rice was never given a chance to drop his "gun," much less comply with orders that were punctuated by Officer Loehmann's gunshots. There were multiple failures en route to this tragedy, but even the dispatcher's failure to pass on the caller's suggestion that the "gun" was most likely a toy doesn't excuse the officer's actions. There was a chance to turn this into something that wouldn't result in death. But that course of action was never considered. Instead, in less than three seconds, Rice was shot and killed by an officer who never should have been a police officer.That's not just me saying that. That's the Cleveland Police Department saying that. The PD very belatedly acknowledged its error in hiring Timothy Loehmann by firing him months later. But it was too late to undo the damage, the least of which was yet another PR black eye for the ultra-violent PD. Records from Loehmann's previous employer -- the Independence (OH) Police Department -- showed the officer was failing to deal with a number of personal issues that affected his daily performance. When he applied to become a Cleveland police officer, Loehmann omitted the fact that he had quit his job as an Independence officer rather than be fired.A cop who should have never been a cop made a split-second decision to kill a 12-year-old black child. But that's not why Loehmann was fired. Killing 12-year-olds is acceptable, as long as internal investigations clear you. No, the unforgivable crime was Loehmann lying about his previous law enforcement experience. That's what bothered the Cleveland PD enough to fire him.More than a half-decade later, this is the legacy the Cleveland PD has managed to secure, thanks to an Ohio Appeals Court decision [PDF]. Loehmann's firing was justified, but not because he spent less than two seconds dealing with a possibly non-threatening situation before depriving a Cleveland resident of his life. (via Courthouse News Service)The Cleveland Police Patrolmen's Association decided to dispute the firing of Loehmann. The Appeals Court disagrees, saying the city and the PD were correct to do so, even though it appears the officer was fired for the lesser of two evils.
Accordingly, we must follow well-established Ohio law and find that the trial court lacked jurisdiction over the CPPA’s application to vacate the arbitration award. We therefore are unable to reach the merits of the CPPA’s appeal and overrule its assignment of error. Judgment affirmed.
That's how Loehmann's career ends in Cleveland: not with a bang but with a procedural whimper. The dismissal survives because the police union screwed up its appeal. Officer Loehmann's failed law enforcement career is shrugged into the record books with a procedural asterisk rather than a strong condemnation of his killing of a 12-year-old.That's the biggest insult of all to taxpayers. The Cleveland PD found his killing of a 12-year-old boy acceptable. But it couldn't stomach being lied to. And, thanks to being tied up by police union contracts and arbitration agreements, the city had to jettison this trigger-happy cop over some resume embellishment rather than, you know, shedding the blood of innocents.
When it comes to how the video game industry interacts with modding communities, it can be frustrating just how often companies see modders as a menace. Nintendo has a long, long history of treating mods as a threat to its control, but it is certainly not alone. But modding by and large is not a threat to game makers. Actually, it's a boon. Mods tend to make games more interesting to more people and can often lengthen the lifecycle of a particular game.And sometimes a mod can simply fix a game. That is what a coder, going by the name t0st, did for the long loading times in Grand Theft Auto Online.
A couple of weeks ago, we reported that a Grand Theft Auto Online player sick of the game’s notoriously long load times took matters into his own hands, broke out the disassembler, and crafted his own fix. The long load times were due to the inefficient way that the GTA Online developers chose to parse and then sort the data in a large multi-megabyte JSON file.The fix—created by a coder known as t0st—resulted in a 70-ish percent decrease in loading times, going by t0st’s own informal benchmarks. For players suffering from the JSON parsing issue, this means that they only have to wait perhaps one or two minutes to enter a GTA Online game, rather than the six-plus minutes they were previously stuck watching the loading screen.
Now, it's easy to see how Rockstar Games could have handled this poorly. The company could have chosen to feel embarrassed by this modder fixing its product. It could have simply seen a change in coding for its game through a mod as a threat. It could have claimed that all of this was unauthorized and therefore copyright infringement.Instead, Rockstar reached out to t0st, reviewed his work, and paid him for it.
In the two weeks since t0st’s fix was made public, GTA Online developer Rockstar got in contact with t0st and acknowledged that t0st had indeed fixed a legitimate issue with the game and that he’d be receiving a $10,000 payment under Rockstar’s bug bounty program.
It's worth noting that there is no indication t0st did this work because of the bounty program. He or she appears to simply be a fan of the game but not the loading times. By not seeing everything through a prism of control, Rockstar got its game fixed.All of this serves as a reminder that the biggest fans of good content can be the biggest contributors to that content in ways that mean more interest and sales for the game. If you let them.
Late last year, we discussed a disappointing move by GOG to delist well-reviewed horror PC game Devotion from its platform. Making it all very odd were the facts that GOG had just announced that morning that the game would be available that day, as well as Devotion's previous delisting from Steam. The reason for the multiple delistings was never perfectly spelled out in either case, but the game includes a reference to China's President Xi and the never ending joke that he resembles Winnie the Pooh. GOG, instead of being open about that being the obvious reason to delist the game, instead said it made the move after receiving "messages from gamers." Groan.Well, fortunately, this is 2021, which means instead of the game dying on the doorstep of well-entrenched gatekeepers, developer Red Candle Games can instead just release the game itself on its own website.
After running into nothing but trouble on other people’s platforms, the game’s developers have decided to just sell the game themselves, opening up an online store for international customers that is selling digital, DRM-free copies of Devotion, their previous game Detention, as well as soundtrack bundles for both.
Despite all the complaints from the industry about how the internet serves only to flood the universe in copyright infringement, this is the transformative power of the internet. Gatekeepers that add value can still find a place for themselves, as GOG and Steam have certainly done. But when they try to shut down the distribution of content for cowardly business reasons, well, the developer can just route around them and sell directly to the consumer. Honestly, it's mostly surprising that this has happened more often in the past and become the norm.For its part, Red Candle Games does plan on this being the norm for them moving forward.
And, really, why not? The developer has been bitten in the ass twice now when it comes to distributing through the big online players, both times over the hurt feelings of a honey-mad, cartoon maybe-bear President of China. Why not just go it alone and keep from having to put up with all of this nonsense.The bigger question is, of course, just how successful this will be. If Red Candle Games can demonstrate that it can go it alone in this way, showing that routing distribution through the likes of Steam and GOG aren't always the best path, that could lead to more experiments like this... or a change in the distributors behavior.
Summary: In the fall of 2019, Disney launched its Disney+ streaming service to instant acclaim. While it offered up access to the extensive Disney catalog (including all of its Marvel, Star Wars, and 21st Century Fox archives), the first big new hit for the service was a TV series set in the Star Wars universe called The Mandalorian, which featured a character regularly referred to as Baby Yoda.Baby Yoda was a clear hit online, and people quickly made animated gif images of the character, helping spread more interest in The Mandalorian and the Disney+ service. However, soon after Vulture Magazine put up a story that was all just Baby Yoda GIFs, it was discovered that Giphy, a company that has built a repository of GIFs, had taken all of the Baby Yoda GIFs down. This caused many to complain, blaming Disney, highlighting that such GIFs were clearly fair use.
Many people assumed that Disney was behind the takedown of the Baby Yoda GIFs. This may be a natural assumption since Disney, above and beyond almost any other company, has a decades-long reputation for aggressively enforcing its copyright. The Washington Post even wrote up an entire article scolding Disney for not understanding fans.That article noted that it was possible that Giphy pre-emptively decided to take down the images, but pointed out that this was, in some ways, even worse. This would mean that Disney's own reputation as an aggressive enforcer of copyrights would lead another company to take action even without an official DMCA takedown notice.Giphy itself has always lived in something of a gray area regarding copyright, since many of the GIFs are from popular culture, including TVs and movies. While there is a strong argument that these are fair use, the company has claimed that most of its content is licensed, and said that it does not rely on fair use.Decisions to be made by Giphy:
Should the company rely on fair use to cover certain GIFs that are uploaded, or should it try to license everything?
Regarding uploaded GIFs, how aggressive should the company be in searching for and taking down content? Should it only do so after receiving a takedown notice, or should it proactively remove content?
For popular content, like Baby Yoda images, should Giphy reach out to the copyright holder (in the case Disney) to either get permission or to work out a partnership?
Questions and policy implications to consider:
Popular culture content is frequently used in memes and GIFs. Is copyright law properly calibrated to allow this kind of activity?
Fair use is found in only a few countries (most notably, the US). How do differences in international copyright law impact the ability of a service like Giphy to exist?
Is Disney better off encouraging fans to spread GIFs, such as those of Baby Yoda, than exercising whatever copyright enforcement powers it has?
If Giphy took down the Baby Yoda images preemptively, does that indicate that fear of copyright litigation is holding back cultural sharing?
Resolution: Soon after the story went viral, Giphy issued an apology to Disney, and to Vulture which had posted the original article full of Baby Yoda GIFs. The apology suggested that Giphy had made the decision to remove the GIFs without any takedown notice or other input from Disney.
"Last week, there was some confusion around certain content uploaded to Giphy and we temporarily removed these Gifs while we reviewed the situation," said the image-hosting website in a statement."We apologise to both Disney and Vulture for any inconvenience, and we are happy to report that the Gifs are once again live on Giphy."
In multiple articles about this, it is noted that Disney refused to comment on the issue, leaving some reporters to wonder if Disney had played a role but did not wish to discuss it publicly. Either way, there are now many Baby Yoda GIFs on Giphy.Originally posted on the Trust & Safety Foundation website.
The Pasco County (FL) Sheriff's Office is being sued over its targeted harassment program -- one it likes to call "predictive policing."Predictive policing is pretty much garbage everywhere, since it relies on stats generated by biased policing to generate even more biased policing. In Pasco County, however, it's a plague willingly inflicted on residents by a sheriff (Chris Nocco) who has apparently described the ultimate goal of the program as "making [people] miserable until they move or sue."Well, Pasco County's getting one of these outcomes, after years of hassling residents who happen to find themselves labelled as criminals or possible criminals by the Sheriff's faulty software. Under the guise of "fighting crime," Sheriff's deputies make multiple visits to residences deemed troublesome, ticketing them for unmowed lawns, missing mailbox numbers, or for "allowing" teens to smoke on their property.This program has bled over into the area's schools, subjecting minors to the same scrutiny for failing to maintain high grades or steady attendance. In one case, a 15-year-old on probation was "visited" by deputies 21 times in six months. Since 2015, 12,500 "checks" have been performed as part of Office's predictive policing program.The Institute for Justice is representing four plaintiffs, including Robert Jones -- a target of the program who did both things the Office wanted: moved and sued.
Robert Jones, a plaintiff in the lawsuit, knows the cruelties of Pasco’s program firsthand. In 2015, Robert’s teenage son had a number of run-ins with the law. That landed his son on Pasco’s “prolific offender” list. Shortly thereafter deputies started to conduct “prolific offender checks.” These warrantless “checks” involved repeated, unannounced visits to Robert’s home at all hours of the day. Robert grew tired of the harassment and stopped cooperating with police. That only made matters worse.Code enforcement is a common tactic to compel cooperation. One deputy said they would “literally go out there and take a tape measure and measure the grass if somebody didn’t want to cooperate with us.” In Robert’s case, deputies cited him for tall grass, but failed to notify him of the citation. Then, when he failed to appear for a hearing that he was never told was happening, they arrested him for failure to appear.All told, Robert was arrested five times by Pasco deputies. Although the bogus charges never stuck—they were all dropped—the harassment accomplished its goal: Robert ultimately moved his family out of Pasco County to escape the constant harassment from the Sheriff’s Office.
The lawsuit [PDF] says the misery inflicted by deputies isn't confined to "targeted" residents. If deputies feel they're not getting enough cooperation from their targets, they'll threaten friends and family members with arrests/citations until they get the level of cooperation they desire.The lawsuit claims this program violates a number of constitutional rights, including the First and Fourth Amendments. The program makes it impossible for anyone's debt to society to ever be repaid. Plaintiff Dalenea Taylor served two years as a juvenile and hasn't committed any criminal acts since. Despite severing ties to her old criminal acquaintances, deputies have visited her residence as often as "every other day" for the past three years, demanding permission to search her house and threatening friends with criminal charges if they did not cooperate with their demands.Another plaintiff was harassed by deputies multiple times a day because her son had ended up on the Sheriff's "target" list. This ultimately resulted in deputies manufacturing arrests to turn her into a convicted felon.
In order to avoid prosecution and the risk of additional time in jail, Tammy pled guilty in March 2018 to the offenses of misdemeanor battery, obstructing or resisting an officer without violence, and giving false information to law enforcement.Subsequently, in September 2018, during another visit to Tammy’s property conducted as part of the Program, PCSO officials arrested Tammy for opening her front screen door into a PCSO deputy in the process of consenting to a search.Because she was on probation stemming from the prior arrest, Tammy spent 76 days in jail. She accepted a plea deal to avoid additional jail time, and now she is a convicted felon.
There's a pattern of rights violations and intimidation the Sheriff's Office will now have to answer for. Here's another plaintiff's experience with deputies due to her son's (non-violent) criminal activity.
In one instance, PCSO deputies scaled a privacy fence to gain access to Dolly’s property. And in another, PCSO deputies assembled outside the residence and, using a bullhorn, demanded that Tyler—who was not there—come outside.[...]As retribution for Dolly’s perceived failure to cooperate with the Program, Dolly was cited for trivial code violations. Specifically, Dolly was fined $3,000 for missing house numbers, tall grass and having construction materials on her property while putting up a fence.
U.S. Rep. Matt Gaetz has called on Florida's governor to remove a sheriff who was sued this week by four residents claiming an intelligence program run by the top cop's agency violated their constitutional rights.In a tweet on Thursday, Gaetz, a Republican congressman from the Florida Panhandle, said Gov. Ron DeSantis had the authority to remove Pasco County Sheriff Chris Nocco and should consider doing so.“I don’t care that this is being done by a GOP Sheriff," Gaetz said in the tweet. “Its awful to harass citizens because you think they may commit crimes, hoping to make their lives miserable.'
And even if the program worked, it still wouldn't be an acceptable excuse for years of unwarranted harassment. But it doesn't. The stats don't back up the Office's claim the program is essential to reducing crime.
The agency has previously said it stands behind its intelligence program and credited it with a reduction in burglaries, larcenies and auto thefts over the last decade. The decline mirrors those in nearby police jurisdictions, according to the Times.
A decade of abusing the public and the public's trust and all the Pasco County Sheriff's Office has to show for it is a brand new lawsuit. Hopefully the judge will see this for what it is: a long-running intimidation campaign pretending to be "intelligence-led policing."
The inability of someone to understand the idea/expression dichotomy in copyright law strikes again! For those of you not familiar with this nuance to copyright law, it essentially boils down to creative expression being a valid target for copyright protection, whereas broader ideas are not. In other words, the creator of Batman can absolutely have a copyright on Batman as a character, but cannot copyright a superhero who is basically a rich crazy guy who fights crime in a cape and cowl with a symbol of an animal on his chest. You get it.Katrina Parrott, who came up with some original emojis of a more diverse nature than previously made, does not get it. She sued Apple late last year, claiming copyright infringement after Apple came out with its own diverse emojis.
As reported by The Washington Post, Katrina Parrott was invited to Cupertino in 2013, to discuss partnering with Apple on an app based on her idea of emojis with different skin tones. From the report:It was 2013, and the tiny digital drawings — smiley faces and thumbs-up icons sent over text message — depicted people in only one skin tone. Parrott, who is Black, said her oldest daughter came home from college one day and lamented that she couldn't express herself through emoji with skin tones that matched her own.Embracing the idea, she launched iDiversicons six months later, allowing users to copy and paste emojis with five distinct skin tones into messages and such. However, things quickly turned sour:According to Parrott, though, her early success turned to heartbreak when Apple and other technology companies incorporated skin tone options into their operating systems, making her app obsolete and leaving her $200,000 in the hole.
And for all of this, she has sued Apple for copyright infringement. The problem, though, is that Apple didn't actually copy any of Parrott's actual designs. Instead, it simply incorporated different color tones into its own existing emoji designs. The amount of money Parrott has put into her business, the fact that she had a meeting with Apple back in 2013, and the rest all mean absolutely nothing when it comes to whether or not this qualifies as copyright infringement. Apple's motion to dismiss from November is exactly on point.
Copyright protects only the expression of ideas, not the ideas themselves. Plaintiff Cub Club Investment has filed an action that contravenes that bedrock legal principle. This case is about “emoji,” which are small graphical images made available in text-messaging and similar applications, sometimes depicting a representation of a human body part, like a hand making a thumbs-up signal. Cub Club alleges it has obtained copyright registrations for several body-part emoji, each in five different shades, to approximate the naturally occurring variation in humans’ skin tones. Apple offers its own body-part emoji, in a different suite of five colors, featuring different renditions of the real-world objects depicted: differently contoured fingers, differently angled thumbs, and so on. Cub Club asserts that Apple’s emoji infringe the copyrights in Cub Club’s emoji, on the theory that Cub Club’s exclusive rights prevent anyone else from offering emoji depicting the same body part as Cub Club’s emoji, in five different hues. That contention is incorrect as a matter of law. It depends on the premise that Cub Club owns a copyright in the idea of chromatically varying emoji, irrespective of whether an alternative rendition of the same concept implements the idea differently. Because the Copyright Act and resulting judicial doctrine are crystal clear that Cub Club’s exclusive rights do not in fact preclude others from implementing the idea of emoji with different skin tones—the very activity Cub Club says gives rise to liability here—Cub Club’s copyright infringement allegations fail to state a claim.
The very latest on the case appears to be a back and forth over the choice of venue. Parrott has pushed to have the case heard in Texas, because of course. After all, that's where all the IP maximalist judges reside. Apple, instead, wants the case heard in California, given that's where most parties and witnesses involved in the suit reside. All the while, of course, Apple doesn't think this case should even make it past the dismissal stage.Nor should it, if you take even a tiny amount of time to think about it. Whatever use copyright has, it is certainly true that the law was never meant to lock up this sort of idea for diversity in creative outputs.
Late last year, we discussed Microsoft's acquisition of Zenimax, the parent company of Bethesda, and what it would mean for the studio's beloved franchises. At particular issue, given that this is Microsoft we're talking about, was whether new or existing franchises would be exclusive to Xbox consoles and/or PC. The communication out of Microsoft has been anything but helpful in this respect. First, Xbox chief Phil Spencer and Bethesda's Todd Howard made vague statements that mostly amounted to: man, we don't have to make Bethesda games exclusives and it's hard to imagine us doing so. Only a few weeks later, another Microsoft representative clarified that while the company may have plans to make Bethesda games "first or best" on Microsoft platforms, "that's not a point about being exclusive." This naturally led most to believe that Microsoft might have timed release windows on other platforms, but wouldn't be locking any specific titles down.What a difference a few months can make, it seems. With the acquisition officially complete, Microsoft put out a "welcome" announcement to the Bethesda team, which included this fun bit to be consumed by the public.
This is the next step in building an industry-leading first party studios team, a commitment we have to our Xbox community. With the addition of the Bethesda creative teams, gamers should know that Xbox consoles, PC, and Game Pass will be the best place to experience new Bethesda games, including some new titles in the future that will be exclusive to Xbox and PC players.
This, frankly, is the worst of all worlds. The announcement is vague enough to not really give the public any actual idea of what games will be exclusive and which won't. Will it be new franchises developed as a first party studio, or are we talking about franchise mainstays like Fallout and Elder Scrolls? Nobody knows! In fact, all the public does know is that the exclusivity guillotine is hanging out there somewhere. And this drip, drip, drip change in the message to the public sure does make it look like Microsoft had this plan all along and only wanted to avoid a backlash in the public.A public that has caught wind of a worrying trend in the video game industry: consolidation. 2020, particularly in the second half of the year, saw a violent uptick in studio consolidation under the bigger players. With that consolidation comes a lot of control over distribution of titles and franchises, especially for studios that were acquired by the likes of Microsoft, Nintendo, and Sony.
It's not just your imagination: the gaming industry is going through a period of consolidation unlike anything we've seen before. Market research firm DDM collected transaction data over the course of 2020 and found that:-Gaming industry investment reached a new high of $13.2 billion in 2020, up 77% from 2019.-M&A volume reached a new high of 220 deals in 2020, a 33% year-over-year increase.-Things really started heating up in the fourth quarter of 2020, when 75 M&A deals took place, nearly double the number of deals made in Q4 2019.
While some studios have begun to finally open up to selling across platforms, it's quite easy to see danger on the horizon with all of this consolidation. If the ability to distribute titles suddenly ends up primarily in the hands of a small number of corporate entities, we could see huge steps backwards in a return towards exclusive games, exclusive hardware, and the like. For an industry that has been speeding towards more and more revenue, this could be one hell of a speed bump.
The Kansas City Police Department has managed to turn a few heads -- and not in the good way -- with an internal PowerPoint that may as well have been titled "So, You've Killed Someone." The document was obtained during discovery in a wrongful death suit against the KCPD. Back in 2019, Officer Dylan Pifer shot and killed Terrance Bridges, claiming he thought Bridges was trying to pull a gun from his sweatshirt pocket. No gun was found on Bridges.The presentation [PDF] obtained from Bridges' family's lawyer by the Kansas City Star advises cops of two things: police shootings should be handled like routine criminal investigations to eliminate claims of bias. And police shootings should be handled nothing like routine criminal investigations because they involve cops.The opening slide makes it clear what the priority is in investigations of shootings by cops: preserving the narrative. It even has the number one next to it.
Upon completion of this block of instruction, the participants will, with the use of handouts and notes, be able to:1. Identify the best defense again [sic] claims of bias or favoritism in the investigations of officer involved shootings.
You know what's not a top priority? Preserving evidence. That comes behind officer safety.
Supervisors should consider the preservation of evidence as secondary to the safety of the public and department personnel.
The presentation points out that shootings are controversial and claims "police critics" will often claim investigations -- which routinely clear officers of wrongdoing -- are "biased and that police receive special treatment." So, the best defense is a good offense:
The best defense to these claims is CONSISTENCY in how we conduct ALL criminal investigations.[...]The best way to do this is to treat the investigation into officer involved shootings LIKE EVERY OTHER CRIMINAL INVESTIGATION.
All well and good, except the presentation spends most of its running time explaining how this sort of investigation won't be treated like a regular criminal investigation.Does this look like the sort of thing cops offer to non-cops involved in shootings?
Don’t engage the member in detailed conversation about the incident, but you are encouraged to talk with them like you would on any other day.Make sure that all requests (bathroom, food, drinks, cigarettes) by the involved members are met as soon as possible.
Forget about preserving evidence:
If their recording system is active, have the member mute the mike and mute yours. They will be making calls to FOP [Fraternal Order of Police] and spouses and family. They may be in an excited state and hyperverbal.
And start hiding stuff from journalists:
Park somewhere that responding media will not be able to film the involved member.
But that of course only means the involved cop. The non-cop will have any and all possibly incriminating information immediately forwarded to local media, along with any mugshots the PD happens to have on hand. Information about the involved officer will be much slower in arriving. Much slower than even the involved officer's statement to investigators:
Generally, the member will be permitted up to forty-eight (48) hours to complete such statement…
The presentation then spends a bit of time bemoaning the public's confidence in law enforcement, which isn't at an all-time high. It blames the media (again) for misrepresenting shootings by officers and, again, stresses doing everything by the book to combat this perception. But the book for officers is very different from the book for citizens. And until law enforcement agencies are willing to change that, the rest of what bothers the presenter about public perception isn't going to change.And this is about the worst possible way you could end an instructive presentation on handling shootings by officers:
There is nothing wrong with being glad to be alive and being okay that you were the winner in a competition in which the winning prize was your life.
Law enforcement isn't a competition with winners and losers. It's a job, an important one, but one that has apparently been handed to people who believe members of the public are enemy combatants and that shootings are just games to be won.
We're nearing the end of our series of posts about the winners of our public domain game jam, Gaming Like It's 1925. We've already featured ~THE GREAT GATSBY~, The Great Gatsby Tabletop Roleplaying Game, Art Apart and There Are No Eyes Here, and Remembering Grußau, and today we're looking at the third and final game based on The Great Gatsby and the winner of the Best Digital Game category: Rhythm Action Gatsby by Robert Tyler.From the name alone, you can probably guess what the game is: rhythm action games are a popular genre, and hey, why not make one for The Great Gatsby? The premise is presented as a joke, with the designer describing it as "the way F. Scott Fitzgerald would have wanted his legacy to be maintained" — but the game doesn't just lean on this one bit of amusing silliness, nor does it cut any corners in fulfilling its promise. Rather, it's full of handcrafted original material.
But before we get to all of that, there's another thing that makes Rhythm Action Gatsby stand out among all the Gatsby-based games this year: it's partly based on the book's incredibly iconic cover art. (We wondered if the cover art was even itself in the public domain, but it turns out that unlike most books, that particular cover was actually designed before the writing was done and published along with the first edition, and has an interesting story all its own.) The floating eyes and mouth that almost everyone immediately associates with The Great Gatsby become the target points of the rhythm action game, controlled by the player as they gaze out from the screen. The eyes must be triggered in time with the sparkling fireworks that rise from below and represent the notes of the music, while the mouth must be controlled to speak the words that tumble down from above.
The words are a well-known passage from the novel, dramatically spaced out over the 2-minute duration of the game — and it's all narrated aloud. That's where we get to all the other original material in the game. The narration? Freshly recorded by the designer, with a distinct mood and excellent delivery. The jaunty music that sets the pace of the game? An original piece written and recorded by the designer. And then there's all the details: the color changes and screen flashes that occur throughout the course of a playthrough, linked to both progression and the player's performance. All of this is choreographed so well that when it comes together it makes a rhythm game that, although simple and short, feels surprisingly dramatic and narrative — and that's not only impressive, it's extremely appropriate to an adaptation of a novel, and proves that the initial joke about the combination of genre and subject being silly wasn't quite what it seemed. That's just great, and makes it a worthy winner of the Best Digital Game award.(Oh, and at the end, your performance is ranked and you get to find out just how great of a Gatsby you are. Several of our judges played it multiple times to try for better results, and maybe you will too.)
The SolarWind intrusion, with the revelation that part of the architecture included, at least for a while, a really weak default password, and the hack of the water treatment plant with a similar password reuse problem, reminded me of this story I heard not long ago about another instance of poor security design.In a recent fan Q&A on Facebook, Bill Gibson, the drummer for Huey Lewis and the News, told a story about his friendship with Stevie Ray Vaughan. Stevie Ray Vaughan and his band Double Trouble had opened for the News for a while in the mid-1980s, and in that time Bill and Stevie had become good friends. Back at the hotel one evening after a show in New York City it came up that Bill had seen Jimi Hendrix perform something like seven times. Stevie, a guitarist who idolized Hendrix, was in awe. He wanted to hear everything about what it was like seeing Hendrix play, so he grabbed some beer and they settled in for an evening of Bill telling Stevie everything he remembered.By 3:00 AM they were out of beer, so they went down to Stevie's tour bus parked out in front of the hotel to get some more. He opened the bus with his key and started looking for the cooler he kept it in. "That's odd," Bill recalls Stevie musing, "The cooler is usually kept in this spot over here." Eventually he found a cooler elsewhere, removed the needed beer, and they left to go back up to finish their conversation.The next day they discovered why they'd had trouble finding the cooler. At the time, most bands were touring in buses that all came from the same company. That all looked the same. And that all were opened by the exact same key. Thus the reason that Stevie could not find the cooler where he expected it to be was because they were not on the bus where they expected to be. Instead of being on Stevie's bus, it turns out they were actually on UB40's bus that, unbeknownst to them, had just pulled up that night while they'd been ensconced in the hotel talking. Which Stevie's key had opened. And on which the UB40 band had apparently been sleeping the whole time Stevie and Bill were there inadvertently pilfering their beerSo let this story be a lesson to security designers, people who really should be employing security designers, and pretty much everyone else who likes to reuse their passwords: When the security credentials for one resource can be used to gain access elsewhere, especially in a way you did not anticipate, there's really not that much security to be had.And in most such cases it will likely be so much more than UB40's beer that's now been put at risk.
Summary: Google's ad service offers purchasers access to millions of users, including those viewing videos on YouTube. But its policies -- meant to prevent abuse, fraud, harassment, or targeting of certain demographics -- sometimes appear to prevent legitimate organizations from doing something as simple as informing others of their existence.Chad Robichaux, the founder of Christian veterans support nonprofit Mighty Oaks, wanted to reach out to veterans who might need his services. But his attempt to purchase YouTube ads was rejected by Google's Ad service for a seemingly strange reason.
According to a screenshot posted by Robichaux to Twitter, Google forbade the use of "Christian" as a keyword. To Robichaux (and many responders to his tweet), this was evidence of Big Tech's bias against Christians and conservatives.But the real reason for this block was far less censorial or nefarious, if no more explicable. According to YouTube (which reached out directly to Robicheaux), the aim isn't to keep Christians from advertising, but rather to prevent advertisers from targeting users on the basis of their religion. Unfortunately, Google's policy doesn't exactly make that clear, instead stating that ads cannot contain "religious basis" content if the purchaser is engaging in personalized advertising.Decisions to be made by Google:
Does blocking certain keywords make some ads impossible to place, no matter what audience is targeted or where the content may appear?
Is it ok for advertisers to target these groups if the users have already self-identified as being members of these groups? Would it be ok if users could explicitly opt in to being targeted in this way?
Is clarification or simplification of the rules needed to ensure accidental blocking or further misunderstandings are avoided?
Should advertisers be given more guidance on how to craft ads/seek users to prevent violations?
Questions and policy implications to consider:
Does having control of a majority of the advertising market lower the quality of assistance users receive from Google given the limited options available to them elsewhere?
Does increasing the number of keyword restrictions result in fewer successful ad placements and lower ad sales?
Does "protecting" users from personalized ads using certain keywords result in users see more irrelevant ads?
Resolution: The confusion was (somewhat) cleared up by YouTube's direct contact with the concerned ad buyer. But other confusion still remains since the policies guiding ad purchasing/ad construction are far from straightforward. Allegations of bias were off-base. Instead, it was simply Google enforcing its policies, which would have made it equally impossible to use any other religion as a keyword.Originally posted on the Trust & Safety Foundation website.
It will come as no surprise to most of our readers that the NCAA is a jealous protector of its March Madness trademark. Much like the Super Bowl, the NCAA likes to march (heh) around and try to pretend like its trademarks give it overly restrictive rights when it absolutely doesn't.But what you may not be as familiar with is all of the ride along trademarks the NCAA has amassed relating to its men's basketball tournament. For instance, the NCAA also holds a trademark for "March Mayhem" and has used that in advertising partnerships in the past. For some reason, this has caused the NCAA to think that this allows it to oppose a trademark for a vasectomy clinic with an admittedly questionable marketing scheme.
The NCAA, which brings you March Madness and the Final Four, has filed a petition of cancellation with the Trademark Trial and Appeal Board to remove a registration owned by Virginia Urology Center, P.C. for the trademark “Vasectomy Mayhem.” It is one of the more ballsy intellectual property protection acts taken by the Association.It is not altogether clear that the NCAA is still actively using the March Mayhem mark, but that did not prevent some inflammatory claims from being submitted as part of the petition. First, the NCAA acknowledges that Virginia Urology Center uses Vasectomy Mayhem to promote its medical services, which is really where the analysis should have ended and caused the Association to decide it was better to appropriate resources elsewhere.
Right, because the NCAA and the vasectomy clinic are not competing in the same markets. And, one hopes, the NCAA didn't somehow get a trademark for "March Mayhem" in the service categories of medical procedures, healthcare, or baby-stoppage. And, yet, none of this stopped the NCAA from claiming in the petition that the proposed trademark for "Vasectomy Mayhem" would somehow confuse the public and dilutes its own marks.
Registrant’s VASECTOMY MAYHEM mark is confusingly similar to the NCAA Marks, and continued registration and use by Registrant of VASECTOMY MAYHEM with the Registrant’s Services is likely to result in confusion, mistake or deception with Petitioner and/or the goods and services marketed in connection with the NCAA Marks, or in the belief that Registrant or its VASECTOMY MAYHEM services are in some way legitimately connected with, or sponsored, licensed or approved by, Petitioner.
So, a couple of obvious points to make. First, "Vasectomy Mayhem" is a horrible marketing term. Like, truly awful. The last thing anyone wants to associate with their upcoming vasectomy is "mayhem." Secondly, there is some semblance of an association with vasectomies and the basketball tournament. It's something of a cultural thing for men to get vasectomies in March simply so that they can spend their recovery watching the tournament. Why someone would want to get a vasectomy and then watch grown men slam a big ball into the ground over and over again is beyond me, but it's a thing.But that association doesn't trademark infringement make. And the simple fact is that nobody is going to somehow think that the NCAA is giving out, or endorsing, vasectomies just because one clinic goes on a "Vasectomy Mayhem" blitz.
At long last, some more NYPD police misconduct records have been released. Last month, the Second Circuit Court of Appeals refused to block the release of these records, now publicly available thanks to the repeal of a state law that shielded these records from the public eye for more than 40 years.A first batch of records was released before the matter was even settled. Records obtained by the NY-ACLU and ProPublica were released by ProPublica even as the Police Benevolent Association secured a restraining order blocking their release. Since neither of these entities were party to the lawsuit (the PBA was suing New York City and Mayor Bill de Blasio), they weren't subject to the court order.The partial set of records published by ProPublica came from the Civilian Complaint Review Board (CCRB). The publication only included records for officers with at least one substantiated complaint against them. A much fuller set of data has now been released by the CCRB -- a set that dates back more than 20 years and covers tens of thousands of NYPD officers.
The CCRB's database includes information on 34,811 active NYPD officers and 48,218 inactive officers, with complaints dating back to 2000. Details about each complaint are limited to the incident date, the type of complaint (force, abuse of authority, discourtesy, or offensive language), a one-or-two-word description of the allegation, and whether the complaint was substantiated.
But this won't be the final data dump on the NYPD. The department has its own internal set of disciplinary records which are subject to the same disclosure mandates as the CCRB's tranche. This one covers information not available in the CCRB's database -- like officers whose claims were handled by the NYPD's internal trial system.Some of this could be posted as early as next week, but it will be an incomplete data set.
The first NYPD records release will detail discipline cases back to 2018. After that, [Assistant Chief] Pontillo said, more data will be added — for active cops who are disciplined without a trial, and for trials, going back to 2008, for both current and ex-cops.
The NYPD will also be releasing trial room decisions for both current and former officers.The repealed law also grants public access to disciplinary records pertaining to fire department employees and corrections officers, but neither have offered a publication date. It actually appears they may try to litigate their way through it.
Hank Sheinkopf, a spokesperson for the coalition of unions that sued to block the release of the records, provided no specific indication whether or not they plan to take further legal action.“We're considering our options,” Sheinkopf told Gothamist.
Well, good luck with that. The Second Circuit opinion made it pretty clear they had no actionable argument against complying with public records law.After years of secrecy -- and months of stalling -- the NYPD may finally join those who've already released department disciplinary records. Given its history of extreme recalcitrance when it comes to transparency, it's no surprise it will be the last to produce these documents.
Summary: In 2012, the Huffington Post did an expos on eating disorder blogs, mainly on the site Tumblr. It discussed the world of thinspo and thinspiration blogs, that focused on building a community around losing unhealthy amounts of weight. In response, Tumblr announced that it was banning self harm blogs, and classified eating disorder blogs among those no longer allowed.Three years later, a study by Munmun De Choudhury discussed how there was still eating disorder information on Tumblr, but that it was mainly split into two different categories: those who were supportive of eating disorders such as anorexia (referred to as proana) as well as communities built up around recovering from eating disorders. One interesting finding of the report was that the recovery groups often used the same keywords and messaging, in an attempt to permeate among the proana groups, in order to try to encourage those with eating disorders to seek support, therapy, and help towards recovery.That same year, Amanda Hess argued in Slate that the rush to ban content about eating disorders on social media (or, in the case of France, where such things were outlawed) was the wrong approach.
"But while we know anorexia can kill, we're not quite sure what happens to people who read about it online. In an article published last month, Canadian criminologists Debra Langan and Nicole Schott could find 'no scholarly evidence' that pro-ana blogs pose a threat to their audiences. If they do, there's no proof that any of our social remediescensorship, PSAs, or prison timedo anything to help. These campaigns are most obviously effective at flattering the egos of the lawmakers and tech execs who champion them. When a girl searches Tumblr for a pro-ana-adjacent term like #thinspo or #thighgap now, Tumblr intercepts her request with bland concern ('Everything OK?'), then advises her to check out the cutesy motivational messaging on the National Eating Disorders Association's Tumblr instead. However the girl responds, Tumblr can feel satisfied it's performed its civic responsibility. The strategy recalls the one favored by a 19th-century doctor who believed that reading novels caused hysteria in women: He counseled men to confiscate their wives' fiction and replace it with a book on 'some practical subject,' like 'beekeeping.'"
The following year, De Choudhury and other authors released another study detailing how pro-eating disorder groups would get around social media blocks on their content by changing words around, or slightly misspelling them, suggesting that the out-and-out blocking method was likely to continue to be ineffective.Another article suggested that the blocks almost made it easier to find information about eating disorders, because dozens of new hashtags were created for the community, rather than just a few before social media sites began to ban such content.A study released in the peer-reviewed New Media & Society journal in 2018 highlighted how easy it appeared to be for users to get around attempts to block content regarding certain eating disorders. The researcher, Ysabel Gerrard, looked mainly at Pinterest, Tumblr, and Instagram, finding that while all three had some policies in place regarding eating disorder information, it was not difficult to find groups or sites dedicated to such information.As summarized by Wired:
"She immediately found that Instagram's pro-ED hashtag ban has an easy workaround: You can search for people who have the keywords in their usernames, just not hashtagged in their posts. She identified 74 public accounts that had terms like 'proana,' 'proanorexia,' or 'thighgap' in their names or bios and who also posted pro-ED content. Then, she analyzed 1,612 of their postsonly 561 of which had hashtagsby cataloguing the content of the image and its caption."On Tumblr, Gerrard followed a number of terms related to pro-ED content, like 'thinspo,' 'proana,' and 'bulimic.' Tumblr allows you to follow topics without needing to follow specific users. For example, you can simply follow 'movies' without following any specific user who posts about that topic. Through this method, she found 50 pro-ED blogs and analyzed 20 posts from each, or 1,000 posts total. Only 218 of the posts were tagged."
The report also found that the recommendation algorithms often drove users towards more such content. By saving a few 'proana' blogs, Gerrard found that Tumblr began recommending more. While it did also recommend some recovery blogs, Gerrard found them easy to exclude.
"Once I had followed ED-related terms - anorexia, anorexic, bulimia, bulimic, thinspiration, thinspo, proana, purge, purging - the platform delivered this content to me through my dashboard and also via email. Tumblr showed me relevant posts and suggested a list of users whose accounts I should follow. As some of these terms are not straightforwardly pro-ED (unlike, for example, proana), I was presented with blogs identifying as 'pro-recovery' in their biographies. But I excluded these blogs from the dataset as they were not the focus of my analysis. Tumblr recommended blogs that were, for example, 'big in proana' or 'like' other popular blogs. I identified fifty pro-ED users through this method."
Another study from 2014 argued that even the proana content represented a double-edged sword and might help some of those either with eating disorders, or those at risk, to recognize that what they were exploring was unhealthy.Decisions to be made by Tumblr/Instagram/Pinterest:
How do you deal with information about eating disorders? Is it actually possible to ban it?
How do you distinguish between proana and recovery content?
Are there other interventions that can be done, such as putting up warning labels, or directing users towards recovery resources when they search on certain terms?
How should recommendation algorithms handle information about eating disorders? Does it need to be adjusted to avoid sending people towards content that glorifies such disorders?
Questions and policy implications to consider:
Does banning content of those promoting unhealthy eating disorders actually help prevent eating disorders?
Does reading about eating disorders function as a how-to guide for the vulnerable, or does it help those at risk recognize that risk? If both, how do you balance these two competing forces?
Can pointing people towards recovery content or other helpful resources lead to better outcomes?
Resolution: Various websites struggle with how to deal with eating disorder information and communities. Attempts to ban it have continued to fail, as the various communities continue to figure out ways to route around any ban. The research on the impact of this content remains mixed, however, and there have been some concerns that efforts to ban such content on certain platforms only makes it move to others that are less well organized to handle the issue.The latest is a report that teens who were engaged in eating disorder discussions on Tumblr have now moved to TikTok. However, that same article also notes that, unlike Tumblr, TikTok seems to have a number of users who celebrate healthy eating and living, and that TikTok's algorithm may be inserting such videos mixed in with those discussing more unhealthy eating behavior.Originally published on the Trust & Safety Foundation website.
You may have heard that in recent days a series of deepfake videos appeared on TikTok of a fake Tom Cruise looking very Tom-Cruise-ish all while doing mostly non-Tom-Cruise-ish things. After that series of short videos came out, the parties responsible for producing them, Chris Ume and Cruise impersonator Miles Fisher, put out a compilation video sort of showing how this was all done.As you can see, this was all done in the spirit of educating the public on what is possible with this kind of technology and, you know, fun. Unfortunately, some folks out there aren't finding any fun in this at all. Instead, there is a certain amount of understandable fear for how this technology might disrupt our lives that is leading to less understandable conclusions about what we should do about it.For instance, some folks apparently think that deepfake outputs should be considered the intellectual property of those who are the subjects of the deepfakes.
A recent deepfake of Hollywood star "Tom Cruise" sparked a bombshell after looking very close to real. Now it has been claimed they are on their way to becoming so good, that families of the dead should own the copyright of their loved ones in deepfakes.Lilian Edwards, a professor of law and expert in the technology, says the law hasn't been fully established yet. She believes many will claim they should own the rights, while some may not.She told BBC: "For example, if a dead person is used, such as (the actor) Steve McQueen or (the rapper) Tupac, there is an ongoing debate about whether their family should own the rights (and make an income from it)."
Now, I want to be somewhat generous here, but this is still a terrible idea. Let's just break this down practically. In the interest of being fair, it is understandable that people would be creeped out by deepfake creations of either their dead relatives or themselves. Let's call that a given. But why is the response to that to try to inject some kind of strange intellectual property right into all of this? Why should Steve McQueen's descendants have some right to control this kind of output? And why are we using McQueen and Tupac as the examples here, given that both are public figures? What problem does this solve?The answer would be, I think: control over the likeness rights of a person. But such control is both fraught with potential for overreach and over-protection coupled with a history of a total lack of nuance in what should not be considered infringing behavior or what is fair use. Techdirt's pages are littered with examples of this. Add to all of this that purveyors of deepfakes are quite often internationally located, anonymous, and unlikely to pay the slightest attention to the kind of image likeness rights being bandied about, and you really have to wonder why we're even entertaining this subject.And then there are the people who think this Tom Cruise deepfake means that soon we'll simply have no functional legal system at all.
The CEO of Amber, a video verification site, believes deepfake evidence will raise reasonable doubt. Mr Allibhai told us: “Deepfakes are getting really good, really fast.“I am worried about both aural/visual evidence being manipulated and also just the fact that when believable fake videos exist, they will delegitimise genuine evidence and defendants will raise reasonable doubt. When the former happens, innocent people will go to jail and when the latter happens, criminals will be set free. Due process will be compromised and a core foundation of democracy is undermined. Judges will drop cases, not necessarily because they believe jurors will be unable to tell the difference: they themselves, and most humans for that matter, will be unable to tell the difference between fact and fiction soon."
Folks, we really need to slow our roll here. Deepfake technology is progressing. And it's not progressing slowly, but nor is it making insane leaps heretofore unforeseen. The collapse of the legal system as a result of nobody being able to tell truth from fiction may well come one day, but it certainly won't be coming as a result of the harbinger of a Tom Cruise deepfake.In fact, you really have to dial in on how the Cruise videos were made to understand how unique they are.
The Tom Cruise fakes, though, show a much more beneficial use of the technology: as another part of the CGI toolkit. Ume says there are so many uses for deepfakes, from dubbing actors in film and TV, to restoring old footage, to animating CGI characters. What he stresses, though, is the incompleteness of the technology operating by itself. Creating the fakes took two months to train the base AI models (using a pair of NVIDIA RTX 8000 GPUs) on footage of Cruise, and days of further processing for each clip. After that, Ume had to go through each video, frame by frame, making small adjustments to sell the overall effect; smoothing a line here and covering up a glitch there. “The most difficult thing is making it look alive,” he says. “You can see it in the eyes when it’s not right.”Ume says a huge amount of credit goes to Fisher; a TV and film actor who captured the exaggerated mannerisms of Cruise, from his manic laugh to his intense delivery. “He’s a really talented actor,” says Ume. “I just do the visual stuff.” Even then, if you look closely, you can still see moments where the illusion fails, as in the clip below where Fisher’s eyes and mouth glitch for a second as he puts the sunglasses on.
This isn't something where we're pushing a couple of buttons and next thing you know you're seeing Tom Cruise committing a homicide. Instead, creating these kinds of deepfakes takes time, hardware, skill, and, in this case, a talented actor who already looked like the subject of the deepfake. It's a good deepfake, don't get me wrong. But it is neither easy to make nor terribly difficult to spot clues for what it is.All of which isn't to say that deepfakes might not someday present problems. I actually have no doubt that they will. But as with every other kind of new technology, you're quite likely to hear a great deal of exaggerated warnings and fears compared with what those challenges will actually be.
Hayne had wanted that job but was barred by his lack of certification. Instead, Mississippi officials simply left the office vacant, allowing Hayne to become the state’s de facto medical examiner, even though he wasn’t qualified to hold the title.
His long and prolific reign as the processor of corpses and provider of "expert" testimony led to an eventual denouement -- one in which a prosecutor specifically called him out for his willingness to generate autopsy reports that coincided with whatever law enforcement theory seemed likely to close a case.
During the State’s cross-examination of Dr. Hayne, the prosecutor asked Dr. Hayne: “You told me during lunch the reason you have to carry around that big notebook with you is you have to defend yourself nowadays for all the reversals you’ve had in the Mississippi Supreme Court; is that correct?” Rayner objected to the relevancy and improper questioning of Dr. Hayne; however, the trial court overruled the objection, finding that the question related to Dr. Hayne’s credibility, and allowed the prosecutor to proceed with his line of cross-examination questioning.After presenting his case to the jury, Rayner renewed all of his previous motions, especially for a directed verdict/judgment of acquittal. The trial court overruled Rayner’s motions. During closing arguments, the State, on rebuttal, made the following comment: “Then you go to Dr. Hayne, a discredited doctor in the State of Mississippi.”
That's one half of this deadly equation. The other is Dr. Michael West. West testified that Howard was the most likely suspect because of evidence only he could see.
West examined the body, using ultraviolet light and “special glasses” to discover bite marks deemed invisible to the naked human eye, and therefore missed on the autopsy report, on three parts of the victim’s body.
Somehow, this guy and his mail order x-ray specs were able to see what idiot commoners couldn't: bites that led to a murder conviction because so many murderers take time out of their murdering to bite people.This was pretty much the state's only evidence against Howard. Let's take another look at Dr. Michael West and his "expertise:"
Two men [were] convicted of raping and killing two 3-year-old girls in separate Mississippi crimes in 1992 and 1995. Marks on their bodies were later determined to have come from crawfish and insects.
Those glasses are special alright. How someone could mistake -- on the record and under oath -- damage from bottom feeders for that created by human suspects with human teeth is best left to the fevered imagination of whoever is ghostwriting James Patterson novels these days.DNA testing later showed Howard's DNA wasn't in the supposed bite marks Dr. West spied with his faulty special eye.Howard is now the seventh person on death row in Mississippi to have been exonerated following examination of "evidence" produced by these two men. And these exonerations have only further damaged Dr. West's already questionable reputation.
“Dr. West’s credibility also has been destroyed since Howard’s trial. In the intervening years, West and his methodology have plunged to overwhelming rejection by the forensics community to the point that today his methodology is not at all supported by mainstream forensic odontologists,” Associate Justice David Ishee wrote in a concurring option for the court.
Bite mark "science" is no longer considered science. It's considered junk, no more worthy of discussion than the earth's alleged flatness. And yet, it cost this man 29 years of his life because anyone in a lab coat is considered more trustworthy than anyone law enforcement wishes to pin a crime on.
We give government agencies a whole lot of power. That's the way the government works: we, the people, allow agencies to perform their duties with minimal interference and, in exchange, we theoretically benefit from these services we pay for indirectly.To perform their duties, agencies need a bit of runway. Discretion is theirs alone. We can hope to force external change, but internally, agencies operate without direct oversight from the people funding them. And when it comes to litigation, government agencies can usually dodge lawsuits, thanks to multiple levels of immunity. Qualified immunity shields public servants from accountability. Absolute immunity shields pretty much everything else.But there's a flipside, one we don't see all that often. The government can dodge a lot of accountability, thanks to its immunity stacks. On the other hand, it can't easily engage in litigation against the citizens signing its paychecks, thanks to Constitutional, judicial, and legislative protections.The government can only do so much when it feels besmirched. And it definitely can't do this sort of thing. Government officials can sue in their personal capacity. But they can't sue as a cohesive whole. That's the uptake from a short decision entered against a Native American tribe that decided to sue TV producers over some fictional stuff that happened in a fictional TV show. (via the Volokh Conspiracy)The Cayuga Nation -- a federally recognized Native American tribe that possesses land in New York, Oklahoma, and Ontario, Canada -- sued over its depiction in the Showtime series, Billions. In one episode, the Cayuga tribe was depicted as engaging in an illegal land deal -- one that involved bribery and blackmail.The tribe sued, claiming it had been defamed. But the court [PDF] handling the case points out the tribe is a governmental agency and, therefore, cannot engage in libel lawsuits. The First Amendment forbids this sort of government action, even if the government agency pursuing the claim operates outside of the federal government's purview.
Contrary to Cayuga Nation's contention, First Amendment principles are applicable to cases involving libel claims arising from fictional works of entertainment (see e.g. Gravano v Take-Two Interactive Software, Inc., 142 AD3d 776 [1st Dept 2016], affd 31 NY3d 988 ; Batra v Wolf, 2008 NY Slip Op 30821[U] [Sup Ct, NY County, Mar. 14, 2008]). Supreme Court reasonably rejected plaintiffs' conclusory contention that the episode referred to plaintiff Halftown individually, and the episode can reasonably be said to concern how the Cayuga Nation "governs," as it depicts the Nation's involvement in a land deal and its decision to support a particular character in connection with a mobile voting program that he seeks to implement. While plaintiffs argue that Native American tribes are a unique kind of government entity, they do not explain how that uniqueness bears on the libel analysis at issue.
Unique or not, the tribe is a government agency. And, as such, they cannot engage in civil libel litigation without undercutting long-held tenets of free speech. Any close relation between real persons and fictional depictions on TV shows is a non-issue. Billions is understood to be a fictional show. That it uses characters and entities existent in the real world is not a legitimate basis for a lawsuit by a government agency. After all, Billions -- like every other TV show and motion picture -- expressly notes that any relation to real world entities is strictly coincidental. That that tribe would feel offended by this depiction makes human sense, but it doesn't make legal sense.First and foremost, government agencies cannot be libeled. Or, even if they've been libeled, they can't sue. That dates back to the Supreme Court's Sullivan decision:
For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence."
If the federal government can't sue, neither can federally recognized government entities like this one. The Cayuga Nation may be offended by this episode of Billions. But that's all it can be. It can't be litigious. It has no legal basis to sue, even considering its status as a semi-autonomous nation under federal law. If this government is unhappy about its portrayal in mass media, it has plenty of PR options at its disposal. What it doesn't have is the right to engage in litigation.
The COVID-19 pandemic has changed and continues to change how life works for many of us in a variety of ways. We're learning just how underserved America is by our monopolistic broadband providers, for instance. Esports has come into fashion in ways never seen before as well. Work from home has become more normalized and school from home is the bane of parents everywhere, even when it's the best option available.And, with so much emphasis made on not traveling and on remaining socially distant, some had an idea to change how prospective university students perform the ritualistic "campus visit" during COVID times. The idea behind LiveCampusTours was to partner with local university students to provide a virtual tour of a school's campus and facilities.
"We provide live one-on-one virtual tours by high school students given by current undergraduates of the college," [co-founder Seth] Kugel said.LiveCampusTours gives families of high school students a glimpse of schools without making a road trip and spending money on travel. Sometimes, Kugel says, they will even offer lower rates for tours if some families can't afford it."We think that this levels the playing field in many ways," Kugel said.
It seems that the tours from LiveCampusTours are themselves getting positive reviews. The Washington Post noted that the tours are more engaging than the on-campus tours, that the guides from LiveCampusTours aren't beholden to the schools' policies for what the tours entail, and that the personalities giving the tours are a step above the in-person version that schools put on to prospective students for free. All in all, LiveCampusTours appears to be providing something of value to the public and is getting high marks for it.So, of course, some of the schools want to be able to opt out, apparently seeing trademark law as one way to do so.
But not all of the 175 universities they provide tours of have been on board. More than a dozen have issued cease and desist letters. One the latest to do so, the University of Denver."Their argument seems to be that we can’t use their name on the website and they think that people will be confused into thinking that these are official tours given by the university and a lot of times that is the concern," said Kugel.
But the open question is whether any of what LiveCampusTours does actually violates a school's trademark. I would argue that it absolutely does not, given that the site lists school names not as a brand, but as a list of options where a prospective student can book a tour. It's simply a list of real-world, factual names. Go to the site and see for yourself: if you try to book a tour, you're presented with text names of the schools and a thumbnail picture of the campus. There's no school branding, no crests, no imagery. Just the name of the school and then a list of the tour-providers available at that school.This is not trademark infringement. In addition, schools are also threatening students who participate in giving tours. From the WaPo post:
Two universities have threatened to discipline students who have already signed up to be guides for LiveCampusTours. I can see why this enterprise might bother otherwise kind and friendly educators when there is so much administrative chaos on campus during the pandemic. But some perspective is in order. The students working as guides like putting a personal spin on their campuses. The high school students who take the tour pay just $39 for a unique personal perspective and spare themselves a long car drive with their parents.Are complaining institutions as solid as Yale, Stanford, Pepperdine and the University of North Carolina at Chapel Hill likely to topple as a result of this useful service? Don’t they realize each guide is bragging on a school she or he personally chose?
Not only is it stupid, but it's an open question whether state universities can even do this as a matter of free speech. Courts in the past have struck down this sort of "licensed tour-givers only" barrier when it came from local governments. Why a state school would be any different is a mystery to me.So, to summarize, a useful service is being threatened by higher learning institutions during a pandemic for providing a service that keeps kids and their families safe mostly utilizing either trademark law when it doesn't apply or potentially unconstitutional restrictions on who can offer those kinds of tours, even though these tours essentially advertise the schools to the public. A real banner day for these complaining schools, to be sure.
For a generation, a secretive clique within the Vallejo Police Department has commemorated fatal shootings with beers, backyard barbecues, and by bending the points of their badges each time they kill in the line of duty, an investigation by Open Vallejo has found. The custom was so exclusive, some officers involved in fatal shootings were never told of its existence.
First you have to shoot someone. Then the others who are in on this have to determine whether you can be trusted.
Sources say not every officer who kills is invited to participate in the Badge of Honor ritual. The vetting process is stringent, if straightforward. Those who kill meet its first requirement. Those who can be trusted not to talk fulfill the second.
Open Vallejo cites the controversial shooting of Willie McCoy as the impetus for this anonymous whistleblowing. McCoy was shot by Vallejo police officers in a Taco Bell drive-thru, where he had apparently passed out. Restaurant employees called the PD, which sent officers to perform a wellness check. Instead of seeing whether anything was wrong with McCoy, officers surrounded the car and killed McCoy when he awoke and moved one arm towards his shoulder. Vallejo officers fired 55 rounds in less than 3.5 seconds, killing McCoy.It wasn't the first time Vallejo cops emptied their magazines into someone they were supposed to be arresting or helping. At the tail end of a chase involving an alleged robbery suspect, Vallejo officers shot the suspect -- who was carrying a knife and slowly moving towards them -- 41 times.According to Open Vallejo's source, one of McCoy's killers -- Officer Ryan McMahon -- got a bend on his "star" for this shooting. This would be his second "bend" in less than a year.Vallejo police officers love using their guns to solve problems. Even if you doubt the anonymous whistleblower's claims of in-house celebrations for shooting citizens, this statistic is chilling:
At the time of [Captain John] Whitney’s firing, nearly 40% of officers on the force had been in at least one shooting, Open Vallejo research shows. More than a third of those had participated in two or more. The department employs about 100 sworn personnel.
That's well above the 27% of officers who have self-reported firing their weapons in the line of duty. This disparity begs the "chicken or egg" question. Are Vallejo cops violent because there are informal rewards for being violent? Or did this streak of violence lead to the unofficial rewarding of shooting people?The captain namechecked in this quote was forced out of the department after opening an investigation into the shooting of Willie McCoy. Vallejo's police culture doesn't welcome internal or external scrutiny -- like pretty much every other law enforcement agency in the nation.Captain Whitney's whistleblowing didn't start there. It wasn't just the Willie McCoy shooting. It was also the blowback from another Vallejo PD failure -- one ignored off by officers and supervisors, including the then-head of the PD.
[Current police union president Mat] Mustard was the lead detective on the 2015 Denise Huskins kidnapping case Vallejo police mistakenly called a hoax.Whitney says he was in the room when Chief Bidou allegedly instructed Lt. Kenny Park before a now infamous press conference."The fact that we've essentially wasted all of these resources for really nothing is upsetting," said Lt. Park during the 2015 presser."Chief Bidou told Lt. Park to burn that b****," said Whitney.Huskins recorded this exclusive statement for ABC7 News: "In their eyes, if you're a woman - you're another "bit**" to burn; if you're a person of color - you're another 'criminal' to kill. It's horrific, and the community of Vallejo deserves better."
The failure to hold police officers accountable has been an issue in Vallejo for as long as anyone can remember. According to confidential city documents, twenty-five years ago one officer shot another while drinking in a bar, and wasn’t fired. A cop with a drug problem kept his job even after he was caught stealing from evidence lockers and was arrested for prescription fraud. Twenty years ago, a lieutenant told a new officer named Joseph Iacono that, when a suspect runs away, the officer should use enough force to put the man in the emergency room. To see if Iacono could fight, he was placed in a holding cell with an uncoöperative suspect. Iacono is now the department’s Lead Force Options Instructor and, according to the documents, likes to say, “It can’t be awful if it’s lawful.”
The Vallejo PD has cost city residents $16 million in the last ten years. This may not seem like much when compared to the amounts racked up by law enforcement agencies in large cities like Chicago and New York City. But when broken down to a per officer cost, Vallejo takes the lead in costing those paying their salaries the most. And -- despite actions taken by the city's insurer -- police officers continue to make things worse for those that manage to survive their violence.
Police violence has cost the city so much money that, in 2018, the statewide insurance pool that helped pay its legal fees took the unprecedented step of raising Vallejo’s annual deductible, from five hundred thousand dollars to $2.5 million, prompting the city to find another insurer. Vallejo is currently facing at least twenty-four use-of-force cases, which it estimates could cost some fifty million dollars.
Even if Vallejo officers aren't bending their badges in celebration of shooting citizens, they're still shooting citizens far more often than cops in other departments. A lot of whistleblowing has occurred over the years in relation to this department. And so far, it hasn't changed the culture.The Vallejo PD is out of control. Swapping parts out isn't going to change it. There's a new deputy chief helping preside over Vallejo's squad of uniformed killers but no one should be holding their breath waiting for internal reform. The "new" sub-boss is the same as the old boss: a department rehire. Joseph Kreins presided over the department as chief from 2012-2014. Dusting off someone who failed to control a department for two years doesn't change anything. The city's cops will continue to kill and maim until someone dares to rein them in.And it appears no one will -- at least not immediately. Between retrofitting a deputy chief and pretending state AG Xavier Becerra -- the same AG who fought a new police accountability law in court -- will get to the bottom of the PD's endemic violence problem, city residents haven't been given anything to hope for. The shootings will continue until law enforcement morale improves.
So far, we've featured ~THE GREAT GATSBY~, The Great Gatsby Tabletop Roleplaying Game, Art Apart and There Are No Eyes Here in this series of posts about the winners of our public domain game jam, Gaming Like It's 1925. Today, we're taking a look at the winner of the Best Deep Cut category: Remembering Grußau by Max Fefer (HydroForge Games).Of all the entries this year, this game was the one that had the biggest emotional impact on our judges, with words like "moving" and "powerful" popping up repeatedly in their comments. The best description of Remembering Grußau is perhaps to call it a guided reflection on a piece of artwork — specifically, the 1925 painting of the same name by the Jewish surrealist painter Felix Nussbaum — and its meaning within the greater context of history, and the artist's life and eventual murder in the Holocaust. The game is simple, focused, and highly effective in prompting the player to meaningfully engage with the subject matter in a deeply personal way.
A big part of how it accomplishes this is by inventively bridging the gap between digital and physical engagement. The game itself is built in Twine with very basic interactive fiction mechanics, but the player's most important action is taken offline: they are instructed to step away, write a letter to Nussbaum, fold it into an envelope, and keep it nearby for a day before returning to complete the game. When they do, they are asked to indicate the theme of the letter they wrote, and then given a response — but to see what that response is, you'll have to experience it for yourself.Remembering Grußau is somber and impactful, and it demonstrates that there are many different reasons that a growing public domain is important. We talk a lot about the radical, transformative ways new creators can make use of old material, but there's also great value on using new media to examine and explore old works in their pure, original form, introducing them to new people and uncovering new meaning within them. By focusing so closely and intensely on a single 1925 painting that isn't especially well known, and actively giving the player historical context and emotional prompts followed by a reflective task to complete, Remembering Grußau succeeds in doing this to an impressive degree, and is a worthy winner of the Best Deep Cut award.Play Remembering Grußau in your browser on Itch, and check out the other jam entries too. Congratulations to Max Fefer/HydroForge Games for the win! We'll be back next week with another game jam winner spotlight.
Way back in 2013, a class action lawsuit started by ex-UCLA basketball star Ed O'Bannon resulted ultimately in the NCAA found to have violated antitrust laws. The antitrust bit comes from a waiver the NCAA forces student athletes to sign that removes their ability to be compensated for their names, images, or likeness (NIL). While this restriction has been in place at the NCAA for eons, this case came about due to O'Bannon discovering that he was represented in EA Sports' NCAA Basketball game in a "classic" team loaded into the game.The knock on effect to all of this was that 2010 was the last year EA Sports offered its college basketball game and 2013, the year the lawsuit came about, was the last year the company made its vaunted NCAA Football game. The reason given by the company was that schools were shying away from those games to avoid further lawsuits. For the next seven years, EA Sports stuck to professional sports.But now, in 2021, the company has announced that the college football series is back.
EA Sports actually dropped a few Easter eggs pointing to the possibility. In the past two editions of Madden, some college football programs were included as part of the "Face of the Franchise" story mode of the game. EA Sports vice president and general manager Daryl Holt told ESPN that while it wasn't a conscious decision to do that as a test run for the return of a college football game, there was positive feedback and returns, particularly in those college markets."That was another just check mark to go -- we know [fans] are itching for it and we know we can develop and deliver a great college football experience," Holt said. "So why are we waiting?"
So, what changed? Apparently not much beyond the Collegiate Licensing Community and its members once again being willing to license school names, stadiums, and imagery to EA Sports. Why there is this sudden change of heart isn't entirely clear at the time of this writing, but it is worth noting that there is a lot of talk and pressure on the NCAA to create new NIL rules so that athletes can get some compensation for their likenesses.Still, with those NIL rules still theoretical as of now, not all schools are opting in. Notre Dame had already indicated that they were pulling out of the game, citing the lack of NIL rules being established. And now Northwestern University has done likewise.
According to a report from Steve Greenberg of the Chicago Sun-Times, the Northwestern football team is opting out of the upcoming college football video game from EA Sports. The school wants NIL rules to be created and finalized before players can take part in the highly-anticipated video game. Northwestern is the second known school to opt-out of the game with Notre Dame being the first. It was also reported by Northwestern made the decision in January before EA announced college football is coming back.
So, what does this all mean? Well, it's a bit of a risky venture for EA Sports to take, given that any NCAA Football title as of now would have to be given an "incomplete" grade. The Big 10 without Northwestern? College football without Notre Dame? And what if more schools start getting pressure from their students and athletes and start to go down the same path?What this ultimately highlights is that the NCAA cartel should get its shit together and work out an NIL compensation arrangement with its athletes before once again attempting to dunk its licensing cookie into video games to try to enrich itself. That this is still an unsettled topic of conversation is baffling.
Summary: Almost any platform that allows users to create accounts eventually has to deal with questions of identity and impersonation. Many platforms set up systems like verified or trusted users for certain recognizable accounts. Others focus on real name policies, or trying to verify all users. But services often discover challenges that come with celebrity users and verification.While it's one thing to do verified accounts on platforms like Twitter, Facebook, or Instagram that are often used for promotion and connection, dating site verification is a bit different and more complicated. Setting up fake personas on dating sites to lure people into misleading relationships (for a wide variety of reasons) is so common that it led to the creation of a whole new term: catfishing. Many dating sites now take user verification quite seriously, not just to avoid catfishing issues, but for the safety and protection of their userbase -- who, by definition, are usually trying to meet someone new with the hope of getting together in person.Bumble is a popular dating app which was built up around the premise of being safer, and more responsive to the needs of female daters. The site includes a verification feature that requests the user upload selfie poses that match poses in photos sent to the user -- which are then reviewed by a team member. The idea is that if a user were faking images by pulling them from online profiles or generating them via AI, it's much harder to match the pose.
Apparently, however, this form of verification ran into a problem when the actress Sharon Stone decided to use Bumble to meet potential dates. Users who matched with her, perhaps understandably, had difficulty believing that a famous Hollywood star would be using a dating app like Bumble, and they reported the account. Staff reviewers at Bumble were (again, reasonably) equally suspicious of the account, leading them to suspend it.Bumble quickly restored the account, and did so in a good natured way, wishing her luck in finding your honey.Decisions to be made by Bumble:
What systems do you use to verify users are who they say they are?
How much weight should be given to user reports that people they matched with are not real?
How do you handle celebrities, whose accounts people may not believe are legitimate?
What appeals process should there be for blocked accounts that were deemed to be fake?
Questions and policy implications to consider:
On dating apps in particular, user safety is key, so should sites default towards overblocking, rather than being hesitant?
Are there other forms of verification that would alleviate problems similar to the one Stone faced here?
Stone was able to get her account reinstated quickly because of her fame; does the existing appeals process work as well for users who don't have that pull?
Resolution: Bumble was pretty quick to restore Stone's account after she tweeted about it, and major news organizations picked up the story. A few months later, Stone admitted that she suspected that she was reported by men who were upset she had turned them down on the platform.
I think that I said no to a couple of people that thought that it would be a nice way to be not-so-kind back, she explained. I think some people don't like to hear, 'No, no I don't want to go out with you.'
She also noted that she has made some nice friends on the site.In the meantime, some have argued that Bumble purposely chose to block Stone in order to generate publicity. Of course, this would only work if the company knew that Stone would complain about the block publicly, which certainly was not guaranteed.Originally posted to the Trust & Safety Foundation website.
Way back in the simpler time of 2010, Mike wrote up an interesting piece on Twitter's trademark enforcement policies and how it handles third parties that interact with Twitter using Twitter-related terms. In short, Twitter built a reputation for itself in freely licensing these terms for use by third parties, believing that tools that made Twitter more useful were good for the platform overall. It was a smart, productive way of looking at protecting trademarks so as not to lose them to genericide.Which is part of what makes it sort of strange that Twitter seems to take the opposite tact when it comes to totally unrelated business entities attempting to trademark terms like "tweet."
On Friday, Twitter filed a notice of opposition before the Trademark Trial and Appeal Board against applicant Puerto Rican company B. Fernandez & Hnos.’s application for the TWEET mark, asserting that it will be harmed if the applicant’s mark is registered.Twitter pointed out that the messages on its platform are called tweets. The marks are used in connection with the aforementioned goods and services, along with other goods and services. Twitter argued that it has established extensive common law rights in the TWEET mark in connection with its goods and services and that the TWEET mark is distinctive.
There's no doubt that "tweet" has taken on fame as a result of Twitter's platform, trademarks, and marketing of itself. But there is still a matter of actual or potential customer confusion on specific uses to contend with and the problem with that is that B. Fernandez & Hnos. is a maker of bird food. In that context, the term "tweet" doesn't call back to Twitter at all, because it fits naturally in with the nature of the product in question.For some reason, Twitter's opposition seems to think the opposite.
Twitter claimed that the applicant seeks to register the TWEET mark in International Class 31, covering bird food. However, Twitter alleged that “consumers will likely associate Applicant’s TWEET Mark with Twitter and the TWEET Goods and Service and will assume there is a relationship between Applicant and Twitter. Twitter asserted that the applicant’s TWEET mark is identical to its TWEET mark, would be “advertised and/or sold in identical or similar channels of trade as Twitter’s and Services”, and would “conflict with Twitter’s lawful and exclusive right to use the TWEET Mark nationwide in connection with Twitter’s Goods and Services.” Consequently, Twitter averred that this similarity is likely to cause consumer confusion, mistake or deception regarding the source, origin, or sponsorship of the respective goods and services.
In other words, Twitter's "tweet" is so famous that a brand of bird food that includes "tweet" will be seen as associated more with Twitter than with bird food. And that's plainly ridiculous.And so, again, we're left with a company that acts quite good on one set of trademark issues, but is, at least, a bit overly aggressive on others.
In the post the other day about Utah trying to ignore Section 230 so it could regulate internet platforms, I explained why it was important that Section 230 pre-empted these sorts of state efforts:
Just think about the impossibility of trying to simultaneously satisfy, in today's political climate, what a Red State government might demand from an Internet platform and what a Blue State might. That readily foreseeable political catch-22 is exactly why Congress wrote Section 230 in such a way that no state government gets to demand appeasement when it comes to platform moderation practices.
We don't have to strain our imaginations very hard, because with this lawsuit, by King County, Washington prosecutors against Google, we can see a Blue State do the same thing Utah is trying to do and come after a platform for how it handles user-generated content.Superficially there are of course some differences between the two state efforts. Utah's bill ostensibly targets social media posts whereas Washington's law goes after political ads. What's wrong with Washington's law may also be a little more subtle than the abjectly unconstitutional attempt by Utah to trump internet services' expressive and associative rights. But these are not meaningful distinctions. In both cases it still basically all boils down to the same thing: a state trying to force a platform to handle user-generated content (which online ads generally are) the way the state wants by imposing requirements on platforms that will inevitably shape how they do.In the Washington case prosecutors are unhappy that Google is apparently not following well enough the prescriptive rules Washington State established to help the public follow the money behind political ads. One need not quibble with the merit of what Washington State is trying to do, which, at least on first glance, seems perfectly reasonable: make campaign finance more transparent to the public. Nor is it necessary to take issue with the specific rules the state came up with to try to vindicate this goal. The rules may or may not be good ones, but whether they are good or not is irrelevant. That there are rules is the problem, and one that that Section 230 was purposefully designed to avoid.As discussed in that other post, Congress went with an all-carrot, no-stick approach in regulating internet content, giving platforms the most leeway possible to do the best they could to help achieve what Congress wanted overall: the most beneficial and least harmful content online. But this approach falls apart once sticks get introduced, which is why Congress included pre-emption in Section 230 so that states couldn't try to. Yet that's what Washington is trying to do with its disclosure rules surrounding political ads: introduce sticks by imposing regulatory requirements that burdens how platforms can facilitate user-generated content, in spite of Congress's efforts to alleviate them of these burdens.The burden is hardly incidental or slight. Remember that if Washington could enforce its own rules, then so could any other state or any of locality, even when those rules were far more demanding, or ultimately compromise this or any other worthy policy goaleither inadvertently or even deliberately. Furthermore, even if every state had good rules, the differences between them would likely make compliance unfeasible for even the best-intentioned platform. Indeed, even by the state's own admission, Google actually had policies aimed at helping the public learn who had sponsored the ads appearing on its services.
Per Google's advertising policies, advertisers are required to complete advertiser identity verification. Advertisers seeking to place election advertisements through Google's advertising networks are required to complete election advertisement verification. Google notifies all verified advertisers, including, but not limited to sponsors of election advertisements, that Google will make public certain information about advertisements placed through Google's advertising networks. Google notifies verified sponsors of election advertisements that information concerning their advertisements will be made public through Google's Political Advertising Transparency Report.Google's policy states:
With the information you provide during the verification process, Google will verify your identity and eligibility to run election ads. For election ads, Google will [g]enerate, when possible, an in-ad disclosure that identifies who paid for your election ad. This means your name, or the name of the organization you represent, will be displayed in the ad shown to users. [And it will p]ublish a publicly available Political Advertising transparency report and a political ads library with data on funding sources for election ads, the amounts being spent, and more.
Google notifies advertisers that in addition to the company's online Political Advertising Transparency Report, affected election advertisements "are published as a public data set on Google Cloud BigQuery[,]" and that users "can export a subset of the ads or access them programmatically." Google notifies advertisers that the downloadable election ad "dataset contains information on how much money is spent by verified advertisers on political advertising across Google Ad Services. In addition, insights on demographic targeting used in political advertisement campaigns by these advertisers are also provided. Finally, links to the actual political advertisement in the Google Transparency Report are provided." Google states that public access to "Data for an election expires 7 years after the election." [p. 14-15]
Yet Washington is still mad at Google anyway because it didn't handle user-generated content exactly the way it demanded. And that's a problem, because if it can sanction Google for not handling user-generated content exactly the way it wants, then (1) so could any other state or any of the infinite number of local jurisdictions Google inherently reaches, (2) to enforce an unlimited number of rules, and (3) governing any sort of user-generated content that may happen to catch a local regulator's attention. Utah may today be fixated on social media content and Washington State political ads, but once they've thrown off the pre-emptive shackles of Section 230 they or any other state, county, city or smaller jurisdiction could go after platforms hosting any of the myriad other sort of expression people use internet services to facilitate.Which would sabotage the internet Congress was trying to foster with Section 230. Again, Congress deliberately gave platforms a free hand to decide how best to moderate user content so that they could afford to do their best at keeping the most good content up and taking the most bad content down. But with all these jurisdictions threatening to sanction platforms, trying to do either of these things can no longer be platforms' priority. Instead they will be forced to devote all their resources to the impossible task of trying to avoid a potentially infinite amount of liability. While perhaps at times this regulatory pressure might result in nudging platforms to make good choices for certain types of moderation decisions, it would be more out of coincidence than design. Trying to stay out of trouble is not the same thing as trying to do the best for the publicand often can turn out to be in direct conflict.Which we can see from Washington's law itself. In 2018 prosecutors attempted to enforce an earlier version of this law against Google, which led it to declare that it would refuse all political ads aimed at Washington voters.
Three days later, on June 7, 2018, Google announced that the company's advertising networks would no longer accept political advertisements targeting state or local elections in Washington State. Google's announced policy was not required by any Washington law and it was not requested by the State. [p. 7]
Prosecutors may have been surprised by Google's decision, but no one should have been. Such a decision is an entirely foreseeable consequence, because if a law makes it legally unsafe for platforms to facilitate expression, then they won't.Even the complaint itself, albeit perhaps inadvertently, makes clear what a loss for discourse and democracy it is when expression is suppressed.
As an example of Washington political advertisements Google accepted or provided after June 4, 2018, Google accepted or provided political advertisements purchased by Strategies 300, Inc. on behalf of the group Moms for Seattle that ran in July 2019, intended to influence city council elections in Seattle. Google also accepted or provided political advertisements purchased by Strategies 300, Inc. on behalf of the Seattle fire fighters that ran in October 2019, intended to influence elections in Seattle. [p. 9]
While prosecutors may frame it as scurrilous that Google accepted ads "intended to influence elections," influencing political opinion is at the very heart of why we have a First Amendment to protect speech in the first place. Democracy depends on discourse, and it is hardly surprising that people would want to communicate in ways designed to persuade on political matters.Nor is the fact that they may pay for the opportunity to express it salient. Every internet service needs some way of keeping the lights on and servers running. That it may sometimes charge people to use their systems to convey their messages doesn't alter the fact that it is still a service facilitating user generated content, which Section 230 exists to protect and needs to protect.Of course, even in the face of unjust sanction sometimes platforms may try to stick it out anyway, and it appears from the Washington complaint that Google may have started accepting ads again at some point after it had initially stopped. It also agreed to pay $217,000 to settle a 2018 enforcement effortalthough, notably, without admitting to any wrongdoing, which is a crucial fact prosecutors omit in its current pleading.
On December 18, 2018, the King County Superior Court entered a stipulated judgment resolving Google's alleged violations of RCW 42.17A.345 from 2013 through the date of the State's June 4, 2018, Complaint filing. Under the terms of the stipulated judgment, Google agreed to pay the State $200,000.00 as a civil penalty and an additional $17,000.00 for the State's reasonable attorneys' fees, court costs, and costs of investigation. A true and correct copy of the State's Stipulation and Judgment against Google entered by the King County Superior Court on December 18, 2018, is attached hereto as Exhibit B. [p. 8. See p. 2 of Exhibit B for Google expressly disclaiming any admission of liability.]
Such a settlement is hardly a confession. Google could have opted to settle rather than fight for any number of reasons. Even platforms as well-resourced as Google will still need to choose their battles. Because it's not just a question of being able to afford to hire all the lawyers you may need; you also need to be able to effectively manage them all, and every skirmish on every front that may now be vulnerable if Section 230 no longer effectively preempts those attacks. Being able to afford a fight means being able to afford it in far more ways than just financially, and thus it is hardly unusual for those threatened with legal process to simply try to purchase relief from onslaught instead of fighting for the just result.Without Section 230, or its preemption provision, however, that's what we'll see a lot more of: unjust results. We'll also see less effective moderation as platforms redirect their resources from doing better moderation to avoiding liability instead. And we'll see what Google foreshadowed, of platforms withdrawing their services from the public entirely as it becomes financially prohibitive to pay off all the local government entities that might like to come after them. It will not get us a better internet, more innovative online services, or solve any of the problems any of these state regulatory efforts hope to fix. It will only make everything much, much worse.
Summary: Formed as a more decentralized alternative to Twitter that allowed users to more directly moderate the content they wanted to see, Mastodon has experienced slow, but steady, growth since its inception in 2016.Unlike other social media networks, Mastodon is built on open-source software and each "instance" (server node) of the network is operated by users. These separate "instances" can be connected with others via Mastodon's interlinked "fediverse." Or they can remain independent, creating a completely siloed version of Mastodon that has no connection with the service's larger "fediverse."This puts a lot of power in the hands of the individuals who operate each instance: they can set their own rules, moderate content directly, and prevent anything the "instance" and its users find undesirable from appearing on their servers. But the larger "fediverse" -- with its combined user base -- poses moderation problems that can't be handled as easily as those presenting themselves on independent "instances." The connected "fediverse" allows instances to interact with each other, allowing unwanted content to appear on servers that are trying to steer clear of it.That's where Gab -- another Twitter alternative -- enters the picture. Gab has purposely courted users banned from other social media services. Consequently, the platform has developed a reputation for being a haven for hate speech, racists, and bigots of all varieties. This toxic collection of content/users led to both Apple and Google banning Gab's app from their app stores.Faced with this app ban, Gab began looking for options. It decided to create its own Mastodon instance. With its server now technically available to everyone in the Mastodon "fediverse," those not explicitly blocking Gab's "instance" could find Gab content available to its users -- and also allow for Gab's users to direct content to their own users. It also allowed Gab to utilize the many different existing Mastodon apps to sidestep the app bans handed down by Google and Apple.Decisions to be made by Mastodon:
Should Gab (and its users) be banned from setting up "instances," given that they likely violate the Mastodon Server Covenant?
Is it possible to moderate content across a large number of independent nodes?
Is this even an issue for Mastodon itself to deal with, given that the individuals running different servers can decide for themselves whether or not to allow federation with the Gab instance?
Given the open source and federated nature of Mastodon, would there reasonably be any way to stop Gab from using Mastodon?
Questions and policy implications to consider:
Will moderation efforts targeting the "fediverse" undercut the independence granted to "instance" owners?
Do attempts to attract more users create moderation friction when the newly-arriving users create content Mastodon was created to avoid?
If Mastodon continues to scale, will it always face challenges as certain instances are created to appeal to audiences that the rest of the fediverse is trying to avoid?
Can a federated system, in which unique instances choose not to federate with another instance, such as Gab, work as a form of moderation-by-exclusion?
Resolution: Mastodon's founder, Eugen Rochko, refused to create a blanket ban on Gab, leaving it up to individual "instances" to decide whether or not to interact with the interlopers. As he explained to The Verge, a blanket ban would be almost impossible, given the decentralized nature of the service.On the other hand, most "fediverse" members would be unlikely to have to deal with Gab or its users, considering the content contained in Gab's "instance" routinely violates the Mastodon "covenant." Violating these rules prevents instances from being listed by Mastodon itself, lowering the chances of other "instance" owners inadvertently adding toxic content and users to their server nodes. And Rochko himself encouraged users to preemptively block Gab's "instance," resulting in ever fewer users being affected by Gab's attempted invasion of the Mastodon fediverse.But running a decentralized system creates an entirely new set of moderation issues, which has turned Mastodon itself into a moderation target. Roughly a year after the Gab "invasion," Google threatened to pull Mastodon-based apps from its store for promoting hate speech, after users tried to get around the Play Store ban by creating apps that pointed to Mastodon instances filled with hateful content. Google ultimately decided to leave Mastodon-based apps up, but appears ready to pull the trigger on a ban in future.Originally posted to the Trust & Safety Foundation website.
Way back in early 2019, we wrote about an odd story with a game developer DMCAing its own game on Valve's Steam platform over a dispute with its publisher. The short version of the story is that the developer accused the publisher of ghosting out on royalty payments, so the takedown allowed the developer to wrestle back control of the game and put it back up themselves. Steam, which has a reputation of being far more friendly to publishers than developers, in this case actually helped the developer wade through getting control of its game.And now, two years later, it's happening again. Frogwares, developer of The Sinking City game, issued a DMCA notice for the game to Steam. At issue again is the publisher, Nacon in this case, being accused of both of skipping out on royalty payments last summer and cracking Frogwares' game and altering it, putting out a completely unauthorized version. See, due to the royalty issues, Frogwares had already pulled the game off of digital storefronts last summer. Suddenly, Nacon published a new version of the game on Steam in the past few days. The details as laid out by Frogwares on that last bit are... quite a thing.
In a post it put up yesterday afternoon, Frogwares further detailed the situation, writing, “[T]o our great surprise, we found a new version of The Sinking City was uploaded to Steam and launched, but Frogwares didn’t deliver such a version… Nacon, under the management of its president Alain Falc, asked some of their employees to crack, hack and pirate our game, change its content in order to commercialize it under their own name, and this is how they did it.”The game developer’s post goes on to share a variety of information that, Frogwares writes, is evidence proving the French publisher bought The Sinking City from a separate platform and altered the game’s data to hide its tracks. This included replacing online retailer Gamesplanet’s logo in the opening credits and loading screen as well as removing a dynamic “Play More” option from the main menu that pointed players towards Frogwares’ other games and acted as a non-intrusive security measure by connecting to external servers.
Nacon claims otherwise, of course. The publisher says it has a contractual arrangement with Frogwares, that the new release is authorized, and that all is on the up and up. But two facts seem to suggest that might not be true. For starters, if this were an authorized release, why the mucking about with buying and cracking other copies of the game from other storefronts? Assuming the evidence Frogwares is putting out there is true, there should be no need to do any of that if there is an arrangement between developer and publisher.But Nacon knows all of that, as it's been locked in a legal battle in French courts over the rights to publish the game for months. From a statement Frogwares put out:
Regarding our use of a DMCA to remove the game from Steam. We believe in a very short time, we were able to collect extremely strong evidence to indicate this version of the game was pirated and contains content that Nacon has absolutely no rights to – namely The Merciful Madness DLC. A DMCA notice proved to be our most effective tool to give us time to gain further potential evidence and to also start the required and lengthy additional legal processes to prevent this from happening again. We are aware that a final ruling on whether Frogwares are obligated to deliver a Steam version has yet not been made and could take years. As it stands, we have an appeals court ruling saying, until further notice Frogwares do not need to deliver a Steam version to Nacon. In the meantime, Nacon decided to take justice into their own hands and release a pirated build.
Which sort of makes that publisher a pirate if true. And this is the sort of piracy that damned well should be punished.
With much of the world in various states of lockdown, the videoconference meeting has become a routine part of many people's day, and a hated one. A fascinating paper by Jeremy Bailenson, director of Stanford University's Virtual Human Interaction Lab, suggests that there are specific problems with videoconference meetings that have led to what has been called "Zoom fatigue", although the issues are not limited to that platform. Bailenson believes this is caused by "nonverbal overload", present in at least four different forms. The first involves eye gaze at a close distance:
On Zoom, behavior ordinarily reserved for close relationships -- such as long stretches of direct eye gaze and faces seen close up -- has suddenly become the way we interact with casual acquaintances, coworkers, and even strangers.
There are two aspects here. One is the size of the face on the screen, and the other is the amount of time a person is seeing a front-on view of another person's face with eye contact. Bailenson points out that in another setting where there is a similar problem -- an elevator -- people typically look down or avert their glance in order to minimize eye contact with others. That's not so easy with videoconferencing, where looking away suggests lack of attention or loss of interest. Another problem with Zoom and other platforms is that people need to send extra nonverbal cues:
Users are forced to consciously monitor nonverbal behavior and to send cues to others that are intentionally generated. Examples include centering oneself in the camera's field of view, nodding in an exaggerated way for a few extra seconds to signal agreement, or looking directly into the camera (as opposed to the faces on the screen) to try and make direct eye contact when speaking.
According to Bailenson, research shows people speak 15% louder on videoconference calls compared to face-to-face interaction. Over a day, this extra effort mounts up. Also problematic is that it's hard to read people's head and eye movements -- important for in-person communication -- in a video call. Often they are looking at something that has popped up on their screen, or to the side, and it may be unclear whether the movement is a nonverbal signal about the conversation that is taking place. Another oddity of Zoom meetings is that participants generally see themselves for hours on end -- an unnatural and unnerving experience:
Imagine in the physical workplace, for the entirety of an 8-hr workday, an assistant followed you around with a handheld mirror, and for every single task you did and every conversation you had, they made sure you could see your own face in that mirror. This sounds ridiculous, but in essence this is what happens on Zoom calls. Even though one can change the settings to "hide self view," the default is that we see our own real-time camera feed, and we stare at ourselves throughout hours of meetings per day.
Finally, Bailenson notes that the design of cameras used for videoconferencing means that people tend to remain within a fairly tight physical space (the camera's "frustrum"):
because many Zoom calls are done via computer, people tend to stay close enough to reach the keyboard, which typically means their faces are between a half-meter and a meter away from the camera (assuming the camera is embedded in the laptop or on top of the monitor). Even in situations where one is not tied to the keyboard, the cultural norms are to stay centered within the camera's view frustrum and to keep one's face large enough for others to see. In essence users are stuck in a very small physical cone, and most of the time this equates to sitting down and staring straight ahead.
That's sub-optimal, because in face-to-face meetings, people move around: "they pace, stand up, stretch, doodle on a notepad, get up to use a chalkboard, even walk over to the water cooler to refill their glass", as Bailenson writes. That's important because studies show that movements help create good meetings. The narrow physical cone that most people inhabit during videoconferences is not just tiring, but reduces efficiency.The good news is that once you analyze what the problems are with Zoom and other platforms, it's quite straightforward to tweak the software to deal with them:
For example, the default setting should be hiding the self-window instead of showing it, or at least hiding it automatically after a few seconds once users know they are framed properly. Likewise, there can simply be a limit to how large Zoom displays any given head; this problem is simple technologically given they have already figured out how to detect the outline of the head with the virtual background feature.
Other problems can be solved by changing the hardware and office culture. For example, using an external webcam and external keyboard allows more flexibility and control over various seating arrangements. It might help to make audio-only Zoom meetings the default, or to use the old-fashioned telephone as an alternative to wall-to-wall videoconferencing. Exploring these changes is particularly important since it seems likely that working from home will remain an option or perhaps a requirement for many people, even after the current pandemic is brought under control. Now would be a good time to fight the fatigue it so often engenders.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.
When we criticize Internet regulations like the CCPA and GDPR, or lament the attempts to roll back Section 230, one of the points we almost always raise is how unduly expensive these policy decisions can be for innovators. Any law that increases the risk of legal trouble increases the need for lawyers, whose services rarely come cheap.But bare cost is only part of the problem. All too often, policymakers seem to assume an infinite supply of capable legal counsel, and it's an assumption that needs to be questioned.First, there are not an infinite number of lawyers. For better or worse, the practice of law is a heavily regulated profession with significant barriers to entry. The legal industry can be fairly criticized, and often is, for making it more difficult and expensive to become a lawyer than perhaps it should be, but there is at least some basic threshold of training, competence, and moral character we should want all lawyers to have attained given the immense responsibility they are regularly entrusted with. These requirements will inevitably limit the overall lawyer population.(Of course, there shouldn't be an infinite number of lawyers anyway. As discussed below, lawyers play an important role in society, but theirs is not the only work that is valuable. In the field of technology law, for example, our need for people to build new things should well outpace our need for lawyers to defend what has been built. We should be wary of creating such a need for the latter that the legal profession siphons off too much of the talent able to do the former.)But even where we have lawyers we still need the right kind of lawyers. Lawyers are not really interchangeable. Different kinds of lawyering need different types of skills and subject-matter expertise, and lawyers will generally specialize, at least to some extent, in what they need to master for their particular practice area. For instance, a lawyer who does estate planning is not generally the one you'd want to defend you against a criminal charge, nor would one who does family law ordinarily be the one you'd want writing your employment manual. There are exceptions, but generally because that particular lawyer went out of their way to develop parallel expertise. The basic fact remains: simply picking any old lawyer out of the yellow pages is rarely likely to lead to good results; you want one experienced with dealing with the sorts of legal issues you actually have, substantively and practically.True, lawyers can retrain, and it is not uncommon for lawyers to switch their focus and develop new skills and expertise at some point in their careers. But it's a problem if a disproportionate number start to specialize in the same area because, just as we need people available to work professions other than law, even within the law we still need other kinds of lawyers available to work on other areas of law outside these particular specialized areas.And we also need to be able to afford them. We already have a serious "access to justice" problem, where only the most resourced are able to obtain legal help. A significant cause of this problem is the expense of law school, which makes it difficult for graduates to resist the siren call of more remunerative employment, but it's a situation that will only get worse if lawyer-intensive regulatory schemes end up creating undue demand for certain legal specializations. For example, as we increasingly pass a growing thicket of complex privacy regulations we create the need for more and more privacy lawyers to help innovators deal with these rules. But as the need for privacy lawyers outstrips the ready availability of lawyers with this expertise, it threatens to raise the costs for anyone needing any sort of lawyering at all. It's a basic issue of supply and demand: the more privacy lawyers that are needed, the more expensive it will be to attract them. And the more these lawyers are paid a premium to do this work, the more it will lure lawyers away from other areas that still need serving, thus making it all the more expensive to hire those who are left to help with it.Then there is the question of where lawyers even get the expertise they need to be effective counsel in the first place. The dirty little secret of legal education is that, at least until recently, it probably wasn't at their law schools. Instead lawyers have generally been trained up on the job, and what newbie lawyers ended up learning has historically depended on what sort of legal job it was (and how good a legal job it was). Recently, however, there has been the growing recognition that it really doesn't make sense to graduate lawyers unable to competently do the job they are about to be fully licensed to do, and one way law schools have responded is by investing in legal clinics.By and large, clinics are a good thing. They give students practical legal training by letting them basically do the job of a lawyer, with the benefit of supervision, as part of their legal education. In the process they acquire important skills and start to develop subject-matter expertise in the area the clinic focuses on, which can be in almost every practice area, including, as is relevant here, technology law. Meanwhile, clinics generally let students provide these legal services to clients far more affordably than clients would normally be able to obtain them, which partially helps address the access to justice problem.However, there are still some significant downsides to clinics, including the inescapable fact that it is students who are basically subsidizing the legal services they are providing by having to pay substantial amounts of money in tuition for the privilege of getting to do this work. A recurrent theme here is that law schools are notoriously expensive, often underwritten with loans, which means that students, instead of being paid for their work, are essentially financing the client's representation themselves.And that arrangement matters as policymakers remain inclined to impose regulations that increase the need for legal services without better considering how that need will be met. It has been too easy for too many to assume that these clinics will simply step in to fill the void, with an endless supply of students willing and able to pay to subsidize this system. Even if this supposition were true, it would still prompt the question of who these students are. The massive expense of law school is already shutting plenty of people out of the profession and robbing it of needed diversity by making it financially out of reach for too many, as well as making it impossible for those who do make it through to turn down more lucrative legal jobs upon graduation and take ones that would be more socially valuable instead. The last thing we need is a regulatory environment dependent on this teetering arrangement to perpetuate it.Yet that's the upshot of much of the policy lawmakers keep crafting. For instance, in the context of Section 1201 Rulemakings, it has been openly presumed that clinics would always be available to do the massive amount of work necessary to earn back for the public the right to do something it was already supposed to be legally allowed to do. But it's not just these cited examples of copyright or privacy law that are a problem; any time a statute or regulatory scheme establishes an unduly onerous compliance requirement, or reduces any of the immunities and safe harbors innovation has depended on, it puts a new strain on the legal profession, which now has to come up with the help from somewhere.At the same time, however, good policy doesn't mean necessarily eliminating the need for lawyers entirely, like the CASE Act tries to do. The bottom line is that legal services are not like other professional services. Lawyers play a critical role in upholding due process, and laws like the CASE Act that short-circuit those protections are a problem. But so are any laws that have the effect of interfering with that greater Constitutional purpose of the legal profession.For a society that claims to be devoted to the "rule of law," ensuring that the public can realistically obtain any of the legal help it needs should be a policy priority at least on par with anything else driving tech regulation. Lawmakers therefore need to take care in how they make policy to ensure they do not end up distorting the availability and affordability of legal services in the process. Such care requires (1) carefully calibrating the burden of any imposed policy to not unnecessarily drive up the need for lawyers, and (2) specifically asking the question: who will do the work. They cannot continue to simply leave "insert lawyers here" in their policy proposals and expect everything to be fine. If they don't also pointedly address exactly where it is these lawyers will come from then it won't be.
In early February, we discussed an extremely dumb lawsuit brought by a theme park in Utah called Evermore against Taylor Swift, who recently released an album called Evermore. The whole thing is buckets of stupid, with the Evermore theme park claiming that because it released a couple of songs on Apple Music, this somehow puts them in the same marketplace as Taylor Swift. Then there were complaints that Swift's album pushed search results down for the theme park, which doesn't trademark infringement make.Swift's response dismantled the claims the theme park made, but when on to note that Evermore theme park had actually gone on social media and responded to messages about Swift's album trying to associate the park with the album. In other words, the only potential for public confusion appears to have been generated by the theme park itself.And now this is going to escalate further as Swift's management company has countersued the park for the unauthorized use of Swift's music.
Now, her company TAS Rights Management has countersued, alleging that the park played Swift songs on its grounds “without authorisation or license agreement”. They allege that the park “blatantly ignored the numerous notices from [US performance rights organisation] BMI and opted instead to continue to benefit from the free and unauthorised public performance” of three Swift songs.
Specifically, TAS alleges that one of the attractions of the park is a section where several park actors perform and sing copyrighted music, including a couple of Swift songs. From the filing:
At a section of Evermore Park known as “the Burrows,” two actors regularly and routinely perform copyrighted songs, including the Works at issue in this action, to large crowds of patrons at Evermore Park. These unlawful musical performances are marketed as a central attraction of Evermore Park. For instance, Evermore Park’s website advertises that visitors can “[c]reate fanciful music” with Park actors and describes one of the Park’s main activities as “Musical Character Performances.”
Also noted in the filing, and perhaps most damning, is that the Evermore park reached out to BMI once this lawsuit became imminent and attempted to get a retroactive license to cover these past performances of copyrighted works. Combined with exhibits brought by Swift's team detailing the several times that BMI has informed Evermore that its use of copyrighted songs was infringing, all of which were ignored by the park, the suit makes the case that the park's infringement was willful. Frankly, it's hard to formulate much of an argument against that assertion.Which makes it useful to reiterate that all of this appears to be a result of Evermore theme park first filing a ridiculous trademark lawsuit of its own. In other words, they decided to poke the hornet's nest and are now getting stung.
As Mike has explained, just about every provision of the social media moderation bill being proposed in the Utah legislature violates the First Amendment by conditioning platforms' editorial discretion over what appears on its servicesdiscretion that the First Amendment protectson meeting a bunch of extra requirements Utah has decided to impose. This post is about how everything Utah proposes is also barred by Section 230, and why it matters.It may seem like a fool's errand to talk about how Section 230 prohibits state efforts to regulate Internet platforms while the statute currently finds itself on life support, with fading vital signs as legislators on bothsides of the aisle keep taking aim at it. After all, if it goes away, then it won't matter how it blocks this sort of state legislation. But that it currently does preclude what we're seeing out of Utah it is why it would be bad if Section 230 went away and we lost it as a defense against this sort of speech-chilling, Internet-killing regulatory nonsense from state governments. To see why, let's talk about how and why Section 230 currently forbids what Utah is trying to do.We often point out in our advocacy that Congress wanted to accomplish two things with Section 230: encourage the most good content online, and the least bad. We don't even need to speak to the law's authors to know that's what the law was intended to do; we can see that's what it was for with the preamble text in subsections (a) and (b), as well as the operative language of subsection (c) providing platforms protection for the steps they take to vindicate these goals, making it safe for them to leave content up as well as safe for them to take content down.It all boils down to Congress basically saying to platforms, "When it comes to moderation, go ahead and do what you need to do; we've got you covered, because giving you the statutory protection to make these Constitutionally-protected choices is what will best lead to the Internet we want." The Utah bill, however, tries to directly mess with that arrangement. While Congress wanted to leave platforms free to do the best they could on the moderation front by making it legally possible, as a practical matter, for them to do it however they chose, Utah does not want platforms to have that freedom. It wants to force platforms to moderate the way Utah has decided they should moderate. None of what the Utah bill demands is incidental nor benign; even the requirements for transparency and notice impinge on platforms' ability to exercise editorial and associative discretion over what user expression they facilitate by imposing significant burdens on the exercise of that discretion. Doing so however runs headlong into the main substance of Section 230, which specifically sought to alleviate platforms of burdens that would affect their ability to moderate content.It also contravenes the part of the statute that expressly prevented states from interfering with what Congress was trying to accomplish with this law. The pre-emption provision can be found at subsection (e)(3): "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Even where Utah's law does not literally countermand Section 230's statutory language, what Utah proposes to do is nevertheless entirely inconsistent with it. While Congress essentially said with Section 230, "You are free to moderate however you see fit," Utah is trying to say, "No, you're not; you have to do it our way, and we'll punish you if you don't." Utah's demand is incompatible with Congress's policy and thus, per this pre-emption provision, not Constitutionally enforceable on this basis either.And for good reason. As a practical matter, both Congress and Utah can't speak on this issue and have it yield coherent policy that doesn't subordinate Congress's mission to get the best online ecosystem possible by letting platforms feel safe to do what they can to maximize the most good content and minimize the least bad. Every new threat of liability is a new pressure diverting platforms' efforts away from being good partners in meeting Congress's goal and instead towards doing only what is needed to avoid the trouble for themselves these new forms of liability threaten. There is no way to satisfy both regulators; Congress's plan to regulate platform moderation via carrots rather than sticks is inherently undermined once sticks start to be introduced. Which is part of the reason why Congress wrote in the pre-emption provision: to make sure that states couldn't introduce any.Section 230's drafters knew that if states could impose their own policy choices on Internet platforms there would be no limit to what sort of obligations they might try to dream up. They also knew that if states could each try to regulate Internet platforms it would lead to messy, if not completely irreconcilable, conflicts among states. That resulting confusion would smother the Internet Congress was trying to foster with Section 230 by making it impossible for Internet platforms to lawfully exist. Because even if Utah were right, and its policy happened to be Constitutional and not a terrible idea, if any state were free to impose a good policy on content moderation it would still leave any other state free to impose a bad one. Such a situation is untenable for a technology service that inherently crosses state boundaries because it means that any service provider would somehow have to obey both the good state laws and also the bad ones at the same time, even when they might be in opposition. Just think about the impossibility of trying to simultaneously satisfy, in today's political climate, what a Red State government might demand from an Internet platform and what a Blue State might. That readily foreseeable political catch-22 is exactly why Congress wrote Section 230 in such a way that no state government gets to demand appeasement when it comes to platform moderation practices.The only solution to the regulatory paralysis Congress rightly feared is what it originally devised: writing pre-emption into Section 230 to get the states out of the platform regulation business and leave it all instead to Congress. Thanks to that provision, the Internet should be safe from Utah's attack on platform moderation and any other such state proposals. But only so long as Section 230 remains in effect as-is. What Utah is trying to do should therefore stand as a warning to Congress to think very carefully before doing anything to reverse course and alter Section 230 in any way that would invite the policy gridlock it had the foresight to foreclose these twenty years ago with this prescient statute.