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April 2021
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Basecamp Bans Politics, An Act That Itself Is Political

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On Monday, Basecamp CEO Jason Fried came out with a blog post announcing not only a cutback in employee benefits, but that it would be banning social and political conversations on the company's platforms as well:

"These are difficult enough waters to navigate in life, but significantly more so at work. It's become too much. It's a major distraction. It saps our energy, and redirects our dialog towards dark places. It's not healthy, it hasn't served us well. And we're done with it on our company Basecamp account where the work happens. People can take the conversations with willing co-workers to Signal, Whatsapp, or even a personal Basecamp account, but it can't happen where the work happens anymore."
In an accompanying post, CTO David Heinemeier Hansson added a little more context:
"There are many places to be involved, exposed, and engaged in those conversations. Basecamp shouldn't be one of those places. Basecamp should be a place where employees can come to work with colleagues of all backgrounds and political convictions without having to deal with heavy political or societal debates unconnected to that work."
While the executives' public-facing posts make it sound like the company (and all of its 60-odd employees) was somehow awash with uncontrollable off-topic partisan division, insiders are telling a different story. According to employees, the saga actually started when employees began to balk at a running, 10-year old list of customer names being consistently shared among customer service reps because some of the names "sounded funny." As a cultural reckoning over race, speech and corporate responsibility grew, employees wanted to apparently have candid conversations about mocking folks on the list:
Some of the names on the list were laughed at for harmless reasons. But given some of the names on the lists were of Asian and African decent, some employees felt uncomfortable. So in other words, the "ban on politics" was really a ban on having basic internal conversations about the company's own juvenile behavior and whether Basecamp could do better as a company.It should be obvious that it's unrealistic to believe that in an era of daily police brutality, racist violence, mass shootings, a plague (and idiotic politicization of said plague), rampant corruption, and life-threatening climate change triggered events, that "don't talk about reality on your work accounts" is a serious and effective adult position you can take. Especially in an era where governments are seemingly incapable of meeting the needs of their people, and companies are often foisted into political leadership roles (whether they like it or not).The other problem, of course, is that the assumption that politics and work are isolated, separate entities is just kind of naive:
The founders of Basecamp assume that conversations about politics and society are unrelated to work. It's a false assumption. Politics and societal issues shape the world of work in myriad ways, including both the products that Basecamp builds and the experiences that people have while working there. We know, for example, that people's racial and gendered biases get built into algorithms; that programming terms can reflect racist histories; that conversations about transgender and LGBTQ rights can apply to something as concrete as company policy surrounding pronouns; and that the #MeToo movement prompted a much-needed conversation about how sexism and sexual harassment are rampant in many workplaces."
The other, more notable problem is that banning political conversations is itself a political act, something noted by journalist Will Oremus:
Someone who has a lot of power (CEOs making significant cash) telling others with less power and wealth to "not talk about politics" is itself an act of politics. It's also an act of wishful thinking that protects and defends the status quo, whether the folks making the restrictions understand that or not. It's an act that prioritizes the comfort of those who think politics is a gross distraction. Folks who don't understand "politics" can often mean "I'd simply like to not be murdered for being black" or "I'd simply like to have clean drinking water" and that muzzling those worries at work is an additional kick to the groin.If the status quo is a broken system that largely benefits wealthy white executives, then of course said executives would just prefer to see politics as this superfluous annoyance that should be muzzled and locked in the basement. But it's a foolish distinction that's not only not going to work, it's only going to net you bad PR for not understanding how the world works.

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posted at: 12:00am on 30-Apr-2021
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The EPIC Effect: Microsoft Changes Revenue Split To Match EPIC Store, Steam Holds Firm

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Way back when Epic released its Epic Store PC game storefront, the release of this new competitor to Steam focused on two major selling points. The first was timed exclusives that it shelled out tons of money for, allowing it to sell games the public couldn't get anywhere else for a certain period of time. This pissed off lots of people, as the public generally doesn't like exclusives. That said, Epic did mention that it would end its exclusivity practices if the rest of the gaming storefront world, especially Steam, mirrored the Epic Store's second key selling point, which was a far more favorable split offered to game developers than the "industry standard" 70/30 split that sees places like Steam getting nearly a third of game revenue just for hosting the game on its platform. Instead, Epic's store has a 88/12 split, meaning the platform is willing to take less than half of the revenue Steam extracts from gamemakers.In other words, Epic positioned its exclusivity program as merely a method to get the other storefronts to take less money away from game developers, which softened the blow with the public and surely made it a great many fans in the gaming industry.Well, Steam hasn't caved yet. But Microsoft did just announce that it is moving to match the splits offered by the Epic Store, marking some movement in the industry and perhaps an indication of things to come.

“As part of our commitment to empower every PC game creator to achieve more, starting on August 1 the developer share of Microsoft Store PC games sales net revenue will increase to 88%, from 70%,” Head of Xbox Game Studios Matt Booty wrote on the Xbox blog. “A clear, no-strings-attached revenue share means developers can bring more games to more players and find greater commercial success from doing so.”The move is the latest in a bit of a sea change for game revenues. In a survey released yesterday by the Game Developers Conference, only 3% of respondents thought the once-standard 30% take by a platform was justified. The Epic Games Store broke onto the scene by notably only taking 12% of the revenue. Over the last year, both Apple and Google have lessened their cuts for games making under $1 million. Steam, meanwhile, has held more or less firm on its 30% take, with the cut lessening the more money a game makes, a system that makes more money for larger, richer publishers, while penalizing smaller indies.
Funny what a little bit of competition can do. While it is certainly notable that Steam is watching all of these changes with its proverbial arms folded, doing no sort of splits-changing of its own, maybe that's okay and maybe there's a place for that. Or maybe the pressure continues to build and the Epic Store does end up being the preferred storefront for smaller titles and indie developers and Steam eventually does have to come down from the 70/30 split.All I know for sure is that without Epic entering this arena and pushing the envelope, be it for altruistic reasons or otherwise, it seems unlikely that even Apple, Google, and Microsoft would have made any of these changes. That's why, whatever you think of the Epic Store, the added competition certainly is nice.

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posted at: 12:00am on 30-Apr-2021
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Content Moderation Case Study: Apple Blocks WordPress Updates In Dispute Over Non-Existent In-app Purchase (2020)

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Summary: Apple controls what apps get onto iPhone and iPads via its full control over the iOS App Store. Every app (and its updates) need to be reviewed by Apple staff before it's allowed in the store -- and Apple puts in place its own rules for what is and what is not allowed.One of those rules is that Apple takes a 30% cut of any sales. That fee has become somewhat controversial, especially among service providers who don't rely on the App Store for discovery, but whose customers likely come on their own -- including Spotify and Epic Games. Spotify, in particular, has urged users to subscribe directly, to avoid having to pay the additional amount per month to cover Apple's fees. In response, Apple forbade Spotify from even mentioning that it's cheaper to subscribe outside of the App Store, which is now a central piece of an antitrust fight that is ongoing in the EU.Perhaps because of all of this, Apple has had to make decisions about whether or not to allow apps in the App Store that seek to avoid paying Apple's cut of the fees. In August of 2020, Matt Mullenweg, the CEO of Automattic, and the founder/lead developer of the WordPress content management system, announced that the iOS app for WordPress had been frozen by Apple. The given reason was that Apple believed that WordPress was trying to avoid the fees for in-app purchases.

This was the cause of much confusion, as many people noted that the app did not actually sell anything. While WordPress.com does offer paid hosting plans (and domain reselling), that was not a part of the WordPress app. However, as Mullenweg's tweet showed, Apple was noting that because somewhere else in WordPress.com's business, it sold things, that meant that WordPress had to pay it a 30% cut of those sales (even though they were outside of the app itself) in order to keep the app in the App Store.Decisions to be made by Apple:
  • How thoroughly should the company be reviewing the business models of apps in the App Store to determine whether they can be included?
  • What actually constitutes an attempt to get around the App Store fee?
  • Will app developers take advantage of exceptions to the rules if Apple does not follow them closely?
  • Should the company allow alternative ways of getting apps on the phone outside of the App Store?
Questions and policy implications to consider:
  • When a company builds an entire device ecosystem, should it be able to set its own rules for what apps are allowed on the device?
  • Can content moderation decisions raise antitrust concerns?
  • Are there policy implications of a single entity reviewing what apps are allowed on a device?
Resolution: As this story got more attention, Apple apologized and restored the WordPress developer account. However, its statement on the matter implied that WordPress had removed an option in the app to pay for hosting plans:
We believe the issue with the WordPress app has been resolved. Since the developer removed the display of their service payment options from the app, it is now a free stand-alone app and does not have to offer in-app purchases. We have informed the developer and apologize for any confusion that we have caused.
But users of the app say it never had any in-app purchases at all. The only thing it had were descriptions of WordPress.com Premium offerings, but no way to buy them. Mullenweg said that, before going public, he had asked Apple if removing those mentions would restore the account, and Apple had said it would not.The reinstatement appeared to take Mullenweg by surprise.
In January of 2021, Apple also moved to lower the cut it took for in-app payments from small developers (those making less than $1 million a year in annual sales) to 15%. It was also revealed that Apple quietly cut a special deal with Amazon to charge the retailer a 15% cut for Amazon's Prime Video app.Originally published on the Trust & Safety Foundation website.

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posted at: 12:00am on 29-Apr-2021
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Publix Gets Social Media Accounts Advertising Its Sandwiches Taken Down For Some Reason

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For sure, the most frustrating examples of dumb trademark disputes are when one party bullies into silence another party for doing something that actually helps the bully. If you need an example of this, you can look to the time Olive Garden tried to take down AllOfGarden.com, a site with a satirical take on the Olive Garden menu. That example is particularly instructive for two reasons. First, AllOfGarden was essentially a tongue-in-cheek love letter to the restaurant chain run by someone who was very much a fan of said chain. Second, Olive Garden eventually apologized and rescinded its threat, due in part to the public backlash and the fact that it must certainly have realized that the site, if anything, helped drive some measure of interest in the restaurant itself.We will have to see if supermarket chain Publix ends up handling this the same way, because it has apparently bullied someone running social media accounts alerting fans to the availability of a particular sandwich into silence.

The account “Are Publix Chicken Tender Subs On Sale?” — with nearly 40,000 followers — has been dormant since March 11. One of its final tweets noted that the subs were, indeed, on sale, and added ominously: “This may be our last Tweet.” Since then, it stopped sharing updates altogether. An accompanying Facebook page also went silent.A big clue about what happened: In another post, the Twitter account said it had received a cease-and-desist order from Publix objecting to a related text-message notification service. The account promised more details “later this week,” but never shared more information. Since then, dozens of hungry Twitter users have tweeted at the account asking where they went, whether everything was OK and earnestly asking which subs might be on sale.
So, who is behind the social media accounts and text messaging service? A 26 years old named Bryan Dickey who also works for marketing firm Postscript in California. According to Dickey, Publix contacted him upset that his texting and social media accounts were alerting the public as to when these chicken tender sandwiches went on sale. He had initially said he was going to keep his social media accounts running while taking down the text message service, but those socials have, again, since gone silent. To be clear, this was something of a commercial operation, though admittedly not much of one.
Dickey tweeted from his personal account earlier this month that Publix was objecting to a related text-message service he set up in January that allowed users to be notified about sub sales if they texted “PUBSUB” to a listed phone number. It wasn’t clear how Dickey was profiting from the service, but apparently that was too much for Publix. He said as early as January 2018 that he was making money off his Publix subs ventures and last year said he had made more than $5,000.“Publix is bullying me with C&D’s for the SMS VIP club. Haven’t talked about it publicly yet. Basically all paths to profitability are legal red taped for now, but I can keep the socials running,” he said.
All the normal excuses for Publix's actions are trotted out in the Tampabay.com post by third parties on the chain's behalf. If the Twitter account or text service suddenly did something offensive, Publix would get the blame. If it didn't go after the use of its name in this case, someone else could argue that Publix had abandoned its trademark.But as we've discussed before, there are other options beyond bullying to death something like this. Working out a way to make the service or social media accounts "legitimate" through cheap or free licenses alleviates the concern about trademark abandonment. Working out an arrangement would similarly allow some flavor of quality control over the content of these accounts.Or, as Publix chose to do, it could silence activity that was actively promoting its own products, almost certainly leading to sales that would have otherwise not occurred.

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posted at: 12:00am on 29-Apr-2021
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OSU, Marc Jacobs Call Truce Over Infuriating Competing Trademark Applications For The Word "The"

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Normally, when we see what we consider a dumb trademark dispute over a dumb trademark resulting in two parties calling a truce and stopping the dumbness, we cheer such resolutions on. Far too many dumb trademark disputes find their way into the courtroom or become prolonged USPTO disputes, after all. So, when a resolution is amicably reached, that tends to be a good thing.This is not one of those times. You will recall that since the middle of 2019, we have been discussing a crazy trademark application made by The Ohio State University for the word "THE". Yes, the school is trying to trademark what may well be the most commonly used word in the English language simply because of its own pompous insistence that its school be recognized with that word at the start of its name. It's dumb enough, in fact, that former OSU footballer and current NCAA Football analyst Kirk Herbstreit panned the school's actions in an interview. Despite the public outcry over all of this, and despite the school initially being denied the mark by the USPTO on largely technical grounds, OSU has continued to press on trying to get its trademark.Unfortunately, as it did so, it discovered that another player had entered this tournament of stupid. Luxury clothier Marc Jacobs had apparently submitted its own trademark application for "THE", because idiot-lightning apparently does strike twice. And, while OSU had planned an opposition to the application, the two sides have now announced a truce.

The university said an agreement filed with the U.S. Patent and Trademark Office will allow both parties to use "THE" on their products until the office makes "further rulings" on the matter, according to a statement from Ohio State spokesman Benjamin Johnson."Ohio State is pleased to have reached an agreement with Marc Jacobs," he said. "Ohio State and Marc Jacobs have agreed to suspend opposition proceedings while awaiting further rulings from the Patent and Trademark Office. Marc Jacobs’ THE branded products are associated with high-end/contemporary fashion," Johnson said. "Ohio State’s THE branded products are associated with and sold through athletics and collegiate channels."
Meanwhile, both parties' "THE" trademark applications are still insane and should never be allowed to reach the state of approved trademark. Again, truces like this are normally a good thing, but when that truce is called over an agreement to temporarily share the usage of one of the most commonly used words in a language, not so much.The most recent information OSU provided to the USPTO was all to do with just how long the school has referred to itself as THE Ohio State University, as well as the wide range of apparel and merch for which it has used the word "THE". Left out of that information is any substantive explanation for how in the absolute hell "THE" on athletic gear is suppose to be a source identifier among the general public for that specific school. It seems like the only possible argument would be roughly: "We've been so annoying about using this common word wherever possible that a large section of the public hates us for it and thus would make the connection."But for OSU, and frankly for Marc Jacobs, I can't imagine how such an assertion could possibly clear the bar towards making this a valid trademark.

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posted at: 12:00am on 28-Apr-2021
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Groups Worry New Text Message Spam Filters Aren't Being Built Transparently, Could Harm Legit Outreach Efforts

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As we noted recently, the wireless industry has been developing a new "trust score" to determine who is or isn't worthy of being able to send text message spam. The system is being contemplated after the 2020 election saw no shortage of text messaging spam that wireless subscribers found it difficult -- if not impossible -- to properly opt out of. The problem: a growing roster of groups are worried about the transparency of the process, noting that the Milan-based company (Kaleyra) running this new "Campaign Registry" hasn't been forthcoming or consistent when it comes to details of the system, launching in June.Text messaging campaigns remain hugely effective, with 90 percent of text messages are read within 3 minutes. But a chorus of groups from Sierra Club to Planned Parenthood are growing increasingly worried that the overall system, dubbed 10DLC, could result in many of them losing their ability to engage in outreach:

"In recent weeks, a coalition of liberal and progressive advocacy groups have mounted a campaign to put the brakes on 10DLC, rejecting the characterization of their messages as spam and raising concerns that the blunt 10DLC rules will hamper one of their most effective organizing tools. The opaque registration and vetting process, the groups warn, could lead to discrimination against smaller organizations with less-established track records, as well as overwhelm them with new and higher fees."
With companies like AT&T at the helm of decision making on the issue, you should be able to understand their concern given AT&T's long, dodgy history. Particularly when it comes to the process being non-transparently hijacked to limit communications on issues not particularly near and dear to AT&T and friends hearts, like labor organizing:
"Though AT&T and T-Mobile claim 10DLC is intended to reduce unwanted text messages, these restrictions in actuality will quash grassroots advocacy, labor union organizing, and progressive movement building, the letter states. We strongly urge AT&T and T-Mobile to reconsider the damage that 10DLC will cause. We are also calling on leaders in Washington to exercise your executive and legislative authority to defend citizen engagement and call on AT&T and T-Mobile to reverse these restrictions."
The Telephone Consumer Protection Act of 1991 is a dated piece of befuddling legislation that's been interpreted to mean that you can't send unsolicited text message spam en masse. But marketers and political campaigns have long wiggled around the restrictions via P2P text message efforts, which still let you send blanket text message campaigns -- just somewhat individually via pre-scripted templates. These efforts were ramped up by the Sanders campaign, and were even more heavily embraced by the Trump campaign.Ideally you'd like a government agency like the FCC or Congress to transparently develop rules in open collaboration with consumers, stakeholders, and experts adequately represented. Instead, you've got a coalition of private companies with dodgy track records working on non-transparent "trust scores" that could limit the impact and outreach of countless organizations, regardless of party.For example, if the trust score is dictated by arrest records, would that mean activist groups whose members are often arrested at peaceful protests would suddenly find themselves labeled too problematic to verify?
"While the details of the trust scoring system are not well understood, it's been likened to running a credit score on each group. They could be looking at things like a group's personal tax history, members' criminal histories, they could also be googling to find groups associated with people they deem unsavory, said Don Calloway, founder of the National Voter Protection Action Fund, which uses peer-to-peer messaging to combat voter suppression. Grassroots orgs have members who get arrested all the time in peaceful protests."
The fact that many of these groups don't know how this trust score is being calculated just months before launch speaks for itself.This being the wireless industry, there's also the threat that they could view this entire system as yet another revenue model, unfairly saddling less affluent organizations with fees and surcharges they won't be able to afford. As such, you can see how letting the wireless industry lead the show could result in its two major concerns (avoiding liability, generating revenue) driving most decision making processes. While it's certainly possible many of these worst-case scenarios won't come to pass, given the history of the telecom industry, and the total lack of regulatory oversight at the moment, it's definitely worth keeping an eye on.

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posted at: 12:00am on 28-Apr-2021
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Louisiana Drug Warriors Bungle Surveillance So Badly Their Target Catches Them Placing A Tracking Device On Her Car

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You'd think a team of highly trained professionals working in the narcotics enforcement field would be a bit more careful than this. (via Jalopnik)

A woman who was recently arrested for drugs said she found a tracking device on her vehicle over the weekend. She said she watched law enforcement officers place it on her car Friday.The device was found under the passenger side of her car. It's a black box with a lithium battery inside and a large magnet.
The woman, Tiara Beverly, was arrested last month on "serious drug charges." A few days after her arrest, five officers showed up at her door to ask about someone she knew. She had no answers for them and went down and filed a complaint against the state troopers because she felt they had treated her poorly during this interaction.Two days later, she saw people hanging around her car. A day after that, she found the tracking device. Not sure what it was (she thought it might have been a bomb) and not particularly keen to interact with law enforcement again at that point, she spoke to the NAACP to find someone to approach law enforcement for her.That's when law enforcement finally decided to open up about the device now in Beverly's possession:
Eugene Collins [Baton Rouge NAACP President] said State Police contacted him Monday demanding the return of the device."They asked me to return the box," Collins said. "It could make the situation more difficult for me."
Why this would make things "more difficult" for a third party not actually in possession of the tracking device is unknown. Either way, the device was ultimately returned to law enforcement after it was found attached to a utility pole across the street from a local middle school.But the device wasn't found by the agency demanding its return or by the investigators unwilling to speak about the super-sensitive tracking device because doing so would jeopardize the investigation officers were currently bungling. It was found by WBRZ reporters following up on Tiara Beverly's story.At least the statement provided to WBRZ says the State Police got a warrant for the tracker. That at least appears to comply with Supreme Court precedent. But everything else about it appears incredibly amateurish. Warrant or not, investigators would be better off not being seen attaching tracking devices to criminal suspects' vehicles. It kind of defeats the purpose of surreptitious tracking when the installation is less than surreptitious.This isn't the first time a surveillance target has discovered, removed, and, consequently, received threats from law enforcement for "taking" something investigators willfully attached to someone else's property. But judging from that viral experience, there's not much in it for the target of this attempted surveillance either.A Redditor who found an FBI tracking device attached to his car received a visit from agents after he removed the device and asked questions about it on Reddit. The FBI made angry noises about any lack of cooperation from the target of its failed surveillance attempt being perceived as its own criminal act, but in the end, no additional charges were filed. Unfortunately, a lawsuit brought against the FBI failed because it wasn't clear at that point that warrants were needed and all other privacy violation allegations were dismissed because the person chose to bring it to the attention of Reddit, which soon brought to the attention of journalists and commentators all over the nation.This is just officers being bad at their job. They're probably not going to get another chance to turn Beverly's vehicle into rolling probable cause. They had a shot and they blew it. Then they got angry and never even bothered to track down the current location of the device investigators said should be immediately returned to them because of their ongoing investigation.

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posted at: 12:00am on 27-Apr-2021
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Ocean Spray Seeks Declaratory Relief After Soda Company Threatens It With Confused Trademark C&D

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While we've seen plenty of instances of confused attempts at trademark bullying backfire on a company, this post will deal with one of the worst I've seen. Most of you will likely be familiar with the company Ocean Spray, best known as a purveyor of all kinds of cranberry-infused fruit drinks. You will likely be less familiar with Wedge Water, LLC, a company that makes fruit juice infused water products. The company also does business as Wave Soda, promoting its soda-alternative drinks.  Well, according to a lawsuit filed by Ocean Spray seeking declaratory relief that it did not infringe any trademarks with its own "wave" branding, Wedge Water / Wave Soda sent a cease and desist notice to Ocean Spray demanding that it cease using its own federally registered trademark. More on that in a moment, but here is what the complaint notes about the C&D.

The Letter accuses Ocean Spray of infringing “Wave Soda’s” trademark and trade dress rights through Ocean Spray’s line of OCEAN SPRAY WAVE products. According to the USPTO database, there is no registration for the mark NEW WAVE owned by an entity named Wave Soda, LLC. As noted above, according to the USPTO database, Wedge Water, LLC is the owner of record of U.S. Registration No. 5571632 for mark NEW WAVE. The Letter advises that Wave Soda, LLC, is a “rapidly growing beverage company based in San Marcos, California.” A search of the database of the California Secretary of State, however, reveals no record for an LLC named Wave Soda, LLC in San Marcos, California, or at all. Despite the fact that there are many brands of sparking water with fruit juice and a small amount of caffeine for sale on Amazon, Mr. Levine’s letter claims that his client “pioneered an entirely new product category.” The Letter emphasizes that the surfer motif is an important part of Wave Soda’s branding: “Wave’s growing team shares [the founder’s] passion for beverages and an active lifestyle—the Wave Soda Surfboard and VW van are not just for show” (emphasis added).
It goes on from there. The complaint, which includes the C&D letter in full, notes that the notice didn't offer any specifics as to what was infringing, offered no possibility of a settlement other than the cessation of Ocean Spray using its own mark, and that the letter in general is "utterly confusing as to who owns the trademarks and trade dress claimed in The Letter." All of this, the complaint goes on, has led the company to seek declaratory relief.Frankly, the C&D is fairly shitty as far as these things go. But the actual legal claims, based on the suit, seem to be even more confused. This dispute led Ocean Spray's legal team to start looking into the trademarks claimed by Wedge Water. The complaint notes that Wedge Water applied for a mark for "New Wave" on a variety of goods, but the "intent to use" application failed to demonstrate that the applied for marks were actually in use in commerce. Instead, Wedge Water's attorneys appear to have supplied some art renderings of what the branding would be. In other words, Wedge Water wasn't actually using the marks in question before July of 2018. The filing notes that Ocean Spray was using its federally registered "Wave" trademark since at least 2013.
Plaintiff Ocean Spray requests an order declaring that its use of the marks WAVE as part of the mark OCEAN SPRAY WAVE, and the OCEAN SPRAY WAVE trade dress do not infringe Wedge Water’s alleged trademark and trade dress rights. With respect to the word marks WAVE as part of the mark OCEAN SPRAY WAVE and OCEAN SPRAY WAVE, Ocean Spray asserts priority over Wedge Water. Even if the marks are confusingly similar, (which Ocean Spray does not concede), Ocean Spray has prior rights and is not infringing any claimed rights of Wedge Water.
And because of that priority, and likely because of Wedge Water's attempt to play trademark bully, the lawsuit includes a second count beyond the declaratory relief, seeking also to cancel Wedge Water's trademark in favor of Ocean Spray's.
Ocean Spray has standing to request cancellation of the NEW WAVE Registration because it has reason to believe that it will be injured by the continued registration of same. Ocean Spray has reason to believe that it will be injured because Defendant/Registrant or its alter ego, the purported Wave Soda, LLC, has asserted in The Letter that Ocean Spray’s use of its OCEAN SPRAY WAVE trademark infringes the NEW WAVE mark. The Letter asserts, and thus admits, that there is a likelihood of confusion between OCEAN SPRAY WAVE and NEW WAVE.
Whoops. What retort could Wedge Water possibly have? Its own C&D letter suggested that there would be public confusion between the marks...and the trademark registrations sure do indicate that Ocean Spray's mark was registered first.Live by the trademark, die by the trademark and all of that. You have to imagine at this point that Wedge Water is regretting having ever sent that threat letter to begin with.

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posted at: 12:00am on 27-Apr-2021
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This Week In Techdirt History: April 18th - 24th

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Five Years AgoEU regulators were busy this week in 2016, trying to force YouTube to be more like Spotify and going after Google for antitrust regarding Android, which prompted Microsoft to drop all its own antitrust complaints about Google and vice versa, while both companies claimed the timing was just a coincidence. The FISA court was still uncovering surveillance abuses by the feds while the EFF was suing the DOJ for refusing to release FISA court documents, and another court said that national security letters were constitutional under the USA Freedom Act. Meanwhile, the Supreme Court said it wouldn't hear the Authors Guild's appeal over the Google Books ruling, prompting the Guild to whine.Ten Years AgoRighthaven was having a bad time this week in 2011, with a judge slamming their legal tactics and unsealing the document that revealed "sham" copyright assignments to the company — while, in another state, Righthaven was continuing its self-destruction by directing their petulant tone at the judge. It wasn't over, either, as yet another court told Righthaven its demand for domain names was silly. And another similar company, Digiprotect, was also getting dinged by a judge. On the other hand, one of the RIAA's lawyers in the Limewire case was recommended as a federal judge.Fifteen Years AgoThis week in 2006, people were beginning to notice how much free product placement Apple was getting in movies and television shows, high-price domain names were back and we wondered where the skepticism was, and AT&T was pretending to love competition. We looked at the story of how NTP kept prior art on its wireless email patent quiet, and we were irritated at the fact that the Patent Office needed to be told to look online for prior art on patent applications. More and more states were pursuing driving-while-yakking regulations without paying attention to the broader data about distracted driving in general. And the Supreme Court declined to hear Jerry Falwell's typosquatting case.

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posted at: 12:00am on 25-Apr-2021
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Content Moderation Case Study: Google Refuses To Honor Questionable Requests For Removal Of 'Defamatory' Content (2019)

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Summary: Google has long been responsive to court orders demanding the removal of content, if they're justified. Google has fought back against dubious orders originating from "right to be forgotten" demands from outside the US, and has met no small amount of DMCA abuse head on. But, generally speaking, Google will do what's asked if there's a legal basis for the asking.

But not everyone approaching Google acts in good faith. First, there are any number of bad actors hoping to game the system to juice their Google search rankings.And, beyond that, there are any number of shady "reputation management" firms willing to defraud courts to obtain orders demanding Google remove content that reflects poorly on their clients.For a couple of years, these bad actors managed to make some search engine optimization (SEO) inroads. They were able to fraudulently obtain court orders demanding the removal of content. The worst of these companies didn't even bother to approach courts. They forged court orders and sent these to Google to get negative listings removed from search results.This new system opportunistically preyed on two things: Google's apparent inability to police its billions of search results and the court system's inability to vet every defamation claim thoroughly.But the system -- not the one operated by the US government or Google -- prevailed. Those targeted by bogus takedown demands fought back, digging into court dockets and the people behind the bogus requests. Armed with this information, private parties approached the courts and Google and asked for content that had been removed illicitly be reinstated.Decisions to be made by Google:
  • Should Google act as an intercessor on behalf of website operators or should it just act as "dumb" pipe that passes no judgment on content removal requests?
  • Does manual vetting of court orders open Google up to additional litigation?
  • Does pushing back against seemingly questionable court orders allow Google to operate more freely in the future?
Questions and policy implications to consider:
  • Given the impossibility of policing content delivered by search results, is it wrong to assume good faith on behalf of entities requesting content removal?
  • Is it possible to operate at Google's scale without revamping policies to reflect the collateral damage it can't possibly hope to mitigate?
  • If Google immunizes itself by granting itself more discretion on disputed content, does it open itself up to more direct regulation by the US government? Does it encourage users to find other sources for content hosting?
Resolution: Google chose to take more direct action on apparently bogus court orders fraudulently obtained or created by reputation management firms. It took more direct action on efforts to remove content that may have been negative, but not defamatory, in response to multiple (private) investigations of underhanded actions taken by those in the reputation management field. Direct moderation -- by human moderators -- appears to have had a positive effect on search results. Since this outburst back in 2016, shadier operators have steered clear of manipulating search results with bogus court orders.Originally posted to the Trust & Safety Foundation website.

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posted at: 12:00am on 24-Apr-2021
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EFF, College Student Sue Proctorio Over DMCAs On Fair Use Critique Tweets Of Software

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Late last year, while the COVID-19 pandemic was gearing up to hit its peak here in the States, we wrote about one college student and security researcher taking on Proctorio, a software platform designed to keep remote students from cheating on exams. Erik Johnson of Miami University made a name for himself on Twitter not only for giving voice to a ton of criticism Proctorio's software has faced over its privacy implications and inability to operate correctly for students of varying ethnicities, but also for digging into Proctorio's available source code, visible to anyone that downloads the software. But because he posted that code on PasteBin to demonstrate his critique of Proctorio, the company cried copyright infringement and got Twitter to take his tweets down initially as a result, before they were later restored.But if Proctorio thought that would be the end of the story, it was wrong. The EFF has now gotten involved and has filed a lawsuit against Proctorio in an effort to end any online harassment of Johnson.

The lawsuit intends to address the company’s behavior toward Johnson in September of last year. After Johnson found out that he’d need to use the software for two of his classes, Johnson dug into the source code of Proctorio’s Chrome extension and made a lengthy Twitter thread criticizing its practices — including links to excerpts of the source code, which he’d posted on Pastebin. Proctorio CEO Mike Olsen sent Johnson a direct message on Twitter requesting that he remove the code from Pastebin, according to screenshots viewed by The Verge. After Johnson refused, Proctorio filed a copyright takedown notice, and three of the tweets were removed. (They were reinstated after TechCrunch reported on the controversy.)In its lawsuit, the EFF is arguing that Johnson made fair use of Proctorio’s code and that the company’s takedown “interfered with Johnson’s First Amendment right.”“Copyright holders should be held liable when they falsely accuse their critics of copyright infringement, especially when the goal is plainly to intimidate and undermine them,” said EFF Staff Attorney Cara Gagliano in a statement.
Frankly, it's difficult to understand what Proctorio's rebuttal to any of that would be. What Johnson did with his tweets and the replication of the source code that was the subject of his criticism is about as square an example of Fair Use as I can imagine. The use was not intended to actually replicate what Protctorio's software does. Quite the opposite, in fact. It was intended as evidence for why Proctorio's software should not be used. It was limited in its use as part of a critique of the company's software. And it was decidedly non-commercial in nature.In other words, it was clearly an attempt by Proctorio to silence a critic, rather than any legitimate concern over the reproduction of the source code, which is again freely available to anyone who downloads the browser extension. It's also worth noting that there is a pattern of behavior of this sort of thing by Proctorio.
Proctorio has engaged critics in court before, although more often as a plaintiff. Last October, the company sued a technology specialist at the University of British Columbia who made a series of tweets criticizing the platform. The thread contained links to unlisted YouTube videos, which Proctorio claimed contained confidential information. The lawsuit drew ire from the global education community: hundreds of university faculty, staff, administrators, and students have signed an open letter in the specialist’s defense, and a GoFundMe for his legal expenses has raised $60,000 from over 700 donors.
It's the kind of behavior that doesn't end just because some tweets get reinstated or there is a modicum of public outrage. Instead, it takes a concerted effort by groups like the EFF to force a corporate bully to change its ways. Given Proctorio's bad behavior in all of this, let's hope the courts don't let them off the hook.

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Detroit PD Detective Sued For His (Second) Bogus Arrest Predicated On Questionable Facial Recognition Searches

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On January 9, 2020, facial recognition tech finally got around to doing exactly the thing critics had been warning was inevitable: it got the wrong person arrested.Robert Williams was arrested by Detroit police officers in the driveway of his home. He was accused of shoplifting watches from a store on October 2, 2018. The store (Shinola) had given Detroit investigators a copy of its surveillance tape, which apparently was of little interest to the Detroit PD until it had some facial recognition software to run it through.This was the dark, grainy image the Detroit PD felt was capable of returning a quality match:

That picture is included in Williams' lawsuit [PDF] against the Detroit Police Department. Even in the best case scenario, this picture should not have been uploaded to run a search against. It's low quality, poorly-lit, and barely shows any distinguishing facial features.What makes it worse is that all facial recognition AI -- across the board -- performs more poorly when attempting to identify minorities. That's the conclusion reached by an NIST study of 189 different algorithms. It's not just some software. It's all of it.The Detroit PD chose to run with that photo. Then it decided the search results it had were close enough to probable cause to effect an arrest, even though the software used stated clearly search results should not be used this way. The search was performed by the Michigan State Police from the grainy image submitted by the Detroit PD. A report was returned but investigators were cautioned against trying to turn this into probable cause:
The following statement appeared prominently on the Investigative Lead Report, in the form shown: “THIS DOCUMENT IS NOT A POSITIVE IDENTIFICATION. IT IS AN INVESTIGATIVE LEAD ONLY AND IS NOT PROBABLE CAUSE TO ARREST. FURTHER INVESTIGATION IS NEEDED TO DEVELOP PROBABLE CAUSE TO ARREST.” The phrase “INVESTIGATIVE LEAD ONLY” was highlighted in red ink.
The report was also light on any other details that might have indicated Robert Williams was actually the shoplifter in question.
The Investigative Lead Report contains neither the “score” generated by the facial recognition system representing the level of confidence that Mr. Williams’s photo matched the probe image, nor the other possible matches that, upon information and belief, should have been returned by the system.The Detroit Police Department did not attempt to ascertain the “score” generated by the facial recognition search nor request the other possible matches to the probe photo.
Two months after the PD obtained these search results, the investigation was turned over to another detective, Donald Bussa. At the point he assumed control of the investigation, Bussa was supposed to be operating under the PD's new facial recognition policy that acknowledged the limitation of the tech and stated search results would need to be peer reviewed to ascertain their accuracy. This didn't happen.
Defendant Bussa, however, ignored the new policy. Even though the facial recognition search “identifying” Mr. Williams as the shoplifter was generated by a woefully substandard probe image and had never been peer reviewed by DPD officers, as required by the new policy, Defendant Bussa decided to rely on the lead anyway.
Bussa assembled a "six pack" of suspect photos that contained an image taken from Williams' expired drivers license. (Before this investigation took place, Williams had secured a new license and an updated photo.) He tried to speak to the staff at Shinola but management refused to cooperate, stating that it was not interested in having its employees appear in court. Unable to speak to the sole eyewitness who had actually conversed with the shoplifting suspect, Detective Bussa decided to bypass Shinola completely.
Defendant Bussa then arranged to conduct a six-pack photo identification with Katherine Johnston. Ms. Johnston, then employed by Mackinac Partners, was contracted by Shinola for loss prevention services.Defendant Bussa had no legitimate basis whatsoever for asking Ms. Johnston to participate in an identification procedure. Ms. Johnston was not an eyewitness. Ms. Johnston was not in the Shinola store at the time of the incident and has never seen Mr. Williams or the alleged shoplifter in person. Indeed, Ms. Johnston’s sole relation to the incident was that she had watched the same low-quality surveillance video that Detective Bussa possessed.
Bussa sent Detective Steve Posey out with the loaded "six pack" to pretty much guarantee Williams was selected as the prime suspect.
The photo array was not a blind procedure—Posey knew that Mr. Williams was the suspect. Indeed, Posey’s sheet was nearly identical to that given to Ms. Johnston, except that Mr. Williams’s name was printed in red while all other names were printed in black.Ms. Johnston identified Mr. Williams’s expired license photo as matching the person she had seen in the grainy surveillance footage, and answered the question “Where do you recognize him from?” with “10/2/18 shoplifting at Shinola’s Canfield store.”
With that, Bussa went out to get an arrest warrant and the rest is facial recognition history. He secured this warrant by omitting some key details, like the fact the suspect was picked out of a facial recognition database using a low quality image. It also did not note that the person who picked Williams out of Bussa's loaded lineup wasn't even at the store the day the shoplifting happened. And it didn't mention Bussa's bypassing of Detroit PD policies that were put in place to prevent exactly this sort of false identification.The lawsuit also points out that the same software and the same two detectives were involved in another false arrest -- one that occurred five months before the PD arrested Williams. Detective Bussa and Detective Posey used unvetted search results to arrest Michael Oliver for an assault he didn't commit. Even if the facial recognition software had done its job accurately (which it didn't), the tech would not have noticed something far more obvious: the suspect's arms (as captured in the phone recording) were unmarked. Michael Oliver's arms are covered with numerous tattoos.Williams alleges a long list of violations he's hoping to hold Detective Bussa (and his supervisor) accountable for. It's going to be pretty difficult for the detective to argue he operated in good faith in the Williams arrest. After all, he'd already followed the same broken process to falsely arrest someone else months earlier. Then he ignored the PD's policy on facial recognition tech. He also ignored the big, bold warning printed across the search results he obtained from the State Police. And none of this information -- which would have undercut his probable cause assertions -- made its way into his warrant request.Any reasonable officer would know a lot of what Detective Bussa did was wrong. But Bussa would know this more than even the most reasonable of officers because it wasn't the first time he'd screwed up.

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Thanks Copyright Culture: Web Comic '8-Bit Theater' Releases Book With No Pictures Out Of Fear

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We tend to talk about many of the nuanced and intricate problems with our current copyright culture, but the 10,000 foot view of the problem is essentially that copyright tends to make culture disappear. It can do this in lots of ways, but one of the least recognized of them is simply that with a culture of copyright maximilism, many content producers simply don't release the content they want to release it out of fear of the reprisal that has been seen in other cases.That's something of the case when it comes to 8-Bit Theater releasing a book featuring the entirety of the comics that were released, just without the pictures. Instead, it's just a "script" release. Why? Well, because those pictures are based on old Final Fantasy assets.

From 2001 to 2009, writer Brian Clevinger of Atomic Robo fame produced a hilarious webcomic called 8-Bit Theater, which follows the misadventures of a dysfunctional adventuring party. Unfortunately, that adventuring party is comprised of Final Fantasy game sprites, so Clevinger can’t reprint them without getting sued to hell by Square Enix. That is unless he leaves out the images and creates a 20th anniversary book featuring just the scripts. That’s what he’s doing. The script thing.According to the Kickstarter page for the 8-Bit Theater 20th Anniversary Complete Script Book, which is just now reaching its $28,000 goal after less than a day since being posted, fans have been clamoring for some sort of print edition of the beloved series for years.
Now, to be clear, Square Enix didn't seem to have any problem with the web comic being produced to begin with. But it seems clear that no deal was worked out with the company to allow this physical book to be published using the images from the comic. And, as the Kickstarter results indicate, this is a book people very much want. Unfortunately, they very much won't get it in its original form, due to fear of copyright reprisal.Instead, backers will get the 8-Bit Theater 20th Anniversary Complete Script Book Do Not Sue Edition.
Funny? Sure, in a way. But it's also a little sad and a lot irritating that something as transformative as this comic, still very much in demand by the public, cannot be produced the way it should in book form simply out of fear of being sued for copyright infringement. After all, Square Enix loses nothing by the production of this book.But we all lose out on the loss of culture due to the fear of copyright culture.

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posted at: 12:00am on 23-Apr-2021
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Chanel Loses Trademark Dispute With Huawei Over Latter's Logo

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It's no secret that Chanel, the famous French luxury brand most notable for concocting things that make us smell better, is also a voracious protector of its trademarks. As evidence for this, one needs only to recall that the company once bullied a 2-person candy purveyor over its use of the number "5". The point is, when Chanel comes a-calling complaining about trademarks, you really need to view it all with narrow eyes.Chanel's years-long trademark row with electronics company Huawei is no different. This story begins way back in 2017, when Huawei attempted to register a logo for its hardware division with EUIPO.

The dispute dated to 2017 when Huawei sought approval from the EU Intellectual Property Office (EUIPO), a trademark body, to register its computer hardware trademark which has two vertical interlocking semi-circles.Privately owned Chanel objected, saying that the design was similar to its registered French logo of two horizontal interlocking semi-circles used for its perfumes, cosmetics, costume jewellery, leather goods and clothing.
How similar are the logos? Well, the answer is very, very similar... if you mean that they are exact opposites.
The Chanel logos are on the bottom and the Huawei logo in question is up top. Yes, there's a circle enclosing both symbols. Yes both include interlocking shapes. But beyond that, the logos are essentially opposites. And, frankly, not the kind of opposite that calls to mind Chanel's logo at all. Add to all of that the fact that these two companies compete in wildly different markets and it's fairly crazy that Chanel thought it should kick off this dispute to begin with.But it did. And then, in a 2019 decision by the trademark office, it lost. The trademark office indicated that the logos really weren't similar at all. For some reason Chanel appealed that decision and lost there too.
The French luxury house subsequently challenged the ruling at the Luxembourg-based General Court, which dismissed the appeal in its ruling on Wednesday."The figurative marks at issue are not similar. The marks must be compared as applied for and registered, without altering their orientation," the tribunal of judges said.The tribunal said the visual differences in the two logos were significant."In particular, Chanel's marks have more rounded curves, thicker lines and a horizontal orientation, whereas the orientation of the Huawei mark is vertical. Consequently, the General Court concludes that the marks are different," it said.
It's a decision as right as Chanel's decision to start this fray was wrong. There is little if any chance of public confusion in this case, given the differences in the branding coupled with the divergent markets in which these companies operate.The better question is why famous brands so often feel the need to gum up the works like this to begin with?

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posted at: 12:00am on 22-Apr-2021
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Content Moderation Case Study: Vimeo Sued For Encouraging Infringement Via 'Lipdubs' (2009)

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Summary: Vimeo is a video hosting site that was originally founded in 2004 as an offshoot of CollegeHumor. IAC acquired the company early on and it tried to position itself as an alternative to YouTube that was more for creators. In the early years, one thing that was common on Vimeo was so-called lipdubs. These were music videos often made by groups of people lipsync'ing to popular songs.Vimeo itself effectively launched this trend with its staff doing a lipdub of the Harvey Danger song Flagpole Sitta. At the end of the video, you hear one Vimeo employee say we just made a million dollars, people! And, indeed the phenomenon helped establish Vimeo's place in the market. Soon there were many other lipdubs all over Vimeo.

However, lipdubs also caught the attention of the music industry, which noticed that the songs in these lipdubs had not been licensed. In 2009, EMI subsidiary Capitol Records sued Vimeo for copyright infringement. Like many web services hosting user generated content, Vimeo relied on the safe harbors of the Digital Millennium Copyright Act (DMCA) in the US, which holds that if you meet certain conditions, you cannot be held liable for user uploads of infringing works.Capitol Records argued that Vimeo was not protected under the DMCA for a variety of reasons, starting with the fact that it uploaded its own lipdub, which then effectively encouraged others to upload similar lipdubs. The complaint noted that the DMCA only protects against user uploads, not ones done by the company itself. It also claimed that since Vimeo employees were seen to have liked or commented on many other lipdubs, often speaking approvingly of the videos, it also meant that the company had so-called red flag knowledge of the infringing content -- which might also remove the DMCA's safe harbor protections from the company.Decisions to be made by Vimeo:
  • Should employees have created their own lipdub to kick off this kind of trend? If they did, should they have first licensed the music?
  • How should the company handle copyright-covered music?
  • Should employees like or comment videos of users if they're uploading music for which it's likely they do not hold the rights?
  • Should the company continue to rely on the DMCA or seek out licenses?
  • Should the company explore alternatives for moderation beyond just taking down videos based on notices?
Questions and policy implications to consider:
  • The songs included in lipdubs often ended up getting lots of public recognition and renewed attention. Given the promotional value of these videos, should these kinds of videos be seen as beneficial, rather than infringing?
  • Should a lipdub be considered fair use?
Resolution: The Capitol Records v. Vimeo lawsuit went on for many years, bouncing around the courts. In an initial ruling, the district court judge noted that while some videos were likely protected under the DMCA's safe harbors, many others were not (including those uploaded by the company itself).On appeal, however, the 2nd circuit found that just because some employees within a company had clearly seen the videos in question, that did not mean the company had red flag knowledge, and the DMCA's safe harbors still applied.
The mere fact that an employee of the service provider has viewed a video posted by a user (absent specific information regarding how much of the video the employee saw or the reason for which it was viewed), and that the video contains all or nearly all of a copyrighted song that is recognizable, would be insufficient for many reasons to make infringement obvious to an ordinary reasonable person, who is not an expert in music or the law of copyright.
Originally posted to the Trust & Safety Foundation website.

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Appeals Court: No Immunity For Cops Who Punched A Man Hanging From A Second Story Window And Tased Him When He Hit The Ground

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It takes a lot to lose your qualified immunity, but these cops -- who punched a man's head while he hung from a bedroom windowsill ten feet off the ground and tased him after he fell and broke his leg -- managed to do it.This Second Circuit Appeals Court decision [PDF] also contains one of the most astounding bits of cop-speak I've ever seen, but we'll start where it starts: with cops chasing a man clad only in boxer shorts, a t-shirt, and flip-flops.The suspect was startled by officers serving a search warrant and made a run for it. Officers originally suspected Jose Peroza-Benitez had a weapon on him. One officer saw the suspect drop the gun on the roof during the pursuit. Other officers at the scene said the gun then fell to the ground in an alley. Peroza-Benitez denied having a firearm on him at any point, but officers did recover one from the scene.But where exactly at the scene remains disputed. The report said it was found in the suspect's possession. But every officer sued agreed it was not on his person when they finally arrested him. The chase ended when Peroza-Benitez climbed out of a second story window and then ran out of escape options. As he dangled by his hands (which clearly did not contain a gun), he was approached by C.I. (Criminal Investigator) Kevin Haser who, despite recognizing a fall from that height might injure the suspect, decided to get physical.

According to Peroza-Benitez, as he was hanging from the windowsill with his hands, his feet “dangling,” C.I. Haser “repeatedly” punched him in the temple region of his head with a closed fist. App. 173. C.I. Haser testified that he punched Peroza-Benitez “[o]ne or two times . . . . [p]robably two,” with the purpose being to “stun” and “disorient” Peroza-Benitez into compliance “to help him out.”
That's a weird way of helping. Haser's next attempt to "help out" was even weirder.
It is unclear from the record when the officers let go of Peroza-Benitez. Nevertheless, at a certain point, C.I. Haser thought “we’re like, screw it, you want to fall, you’re gonna fall. So we let go of him.”
Peroza-Benitez fell. And as he fell, Officer Daniel White made quite the set of observations:
Officer White indicated to his fellow officers that he was ready to assist should Peroza-Benitez fall. Officer White did not observe a weapon, or “the absence of one,” in Peroza-Benitez’s hands as he fell from the window.
Schrodinger's weapon: one that exists in two states until an officer feels comfortable testifying one way or the other. Officer White's did/didn't statement was made to excuse his response to the suspect falling and breaking his leg: the deployment of his Taser.
Officer White tased Peroza-Benitez after he struck the concrete steps. Officer White, without providing a verbal warning, deployed his taser in dart mode for a 5-second cycle. Accounts differ as to the exact duration of time that elapsed between Peroza-Benitez landing in the stairwell and getting tased, ranging from “as soon as he hit the concrete” to “less than five seconds.” However, the parties agree that Peroza-Benitez was tased either immediately or almost immediately upon landing.
Some of the cops (including Officer White) claimed the suspect "lunged forward" as if he was going to start running on his broken leg. The plaintiff claims he was temporarily knocked out after his head hit the concrete. Both Officer White and C.I. Haser claimed qualified immunity shielded their actions. The Second Circuit says they're both wrong.
Here, Peroza-Benitez was unarmed, injured, covered in his own blood, and hanging from a second-story window by his hands, feet dangling, when C.I. Haser – knowing Peroza-Benitez to be unarmed – punched him “repeatedly” in the head with a closed fist. C.I. Haser’s punches “stunned and disoriented” Peroza-Benitez, causing him to fall over ten feet into a below-ground concrete stairwell. Accordingly, we rely on a modification of the District Court’s definition: The Fourth Amendment right of an injured, visibly unarmed suspect to be free from temporarily paralyzing force while positioned at a height that carries with it a risk of serious injury or death.
Previous case law dealing with stunning suspects in precarious positions all deal with Taser deployments. The end result is the key, not the method used.
Officer Smith – who was with C.I. Haser at the window – testified that it is “against protocol” to “tase someone on the roof” because if “they fall off, that’s not going to be good. We’re not gonna tase someone that’s on a roof.” App. 53. The same exact logic applies to deliberately punching someone “to stun” them, App. 187, when that person is hanging out of a window.
The same goes for Officer White. Case law may not be exactly on point but a reasonable officer should know that tasing a possibly unconscious person was excessive force.
Viewing the facts in the light most favorable to Peroza-Benitez – again, as we must do at summary judgment – Peroza-Benitez was tased by Officer White while lying unconscious after having fallen over 10 feet into a below-ground, concrete stairwell. The duration of time that elapsed between Peroza-Benitez hitting the ground and getting tased does not change the fact that, in the light most favorable to Peroza-Benitez, he was tased while visibly unconscious and after multiple seconds had elapsed, App. 264, such that a reasonable jury could find that Officer White should have known that he was tasing an unconscious individual.
The case heads back to the lower court and -- if this law enforcement agency chooses not to settle -- a jury will get to decide whether or not rights were violated. According to what the court sees here -- and the admissions made by the officers involved -- there's a pretty good chance this will end in the plaintiff's favor. More factual development isn't going to change the fact one cop said "screw it" and let the suspect fall. And it won't change Officer White's response to someone falling off a second-story windowsill into an alley filled with cops: a swift tasing of someone in no position to escape.

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Techdirt Podcast Episode 279: How Rights Went Wrong

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After a few cross-post episodes, we're back with a brand new conversation, and it's all about a big subject that intersects with the majority of what we cover here at Techdirt: rights. In his book How Rights Went Wrong, Columbia Law professor and Constitutional scholar Jamal Greene proposes a new way of thinking about rights and how they interact, and he joins this week's episode to discuss this paradigm-shifting idea that challenges many preconceptions about the subject.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.


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From Jurassic Park To Telepathic Monkeys, Elon Musk Press Hype Is Getting A Bit Thick

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Last week the press was jam packed with headlines discussing how Elon Musk and his Neuralink co-founder Max Hodak would soon "have the technology to build a real life Jurassic Park." From the New York Post to The Hill, outlets quickly parroted the claim that Neuralink might soon get into the reanimated dinosaur business, triggering not only waves of Jeff-Goldblum-themed ridicule on social media, but a lot of free advertising for Elon Musk and Neuralink.Except none of that's actually happening. For one thing, the original tweet by Hodak doesn't even mention Neuralink by name:

Hodak appears to have been speaking generally, not specifically, and there's zero evidence the company is even pursuing the concept. Nor is it clear that Hodak is actually correct in his statement that such a venture is technically possible:
"...it's pretty much impossible to resurrect a dinosaur. The science of bringing dinosaurs back from the dead isn't really as sound as Hodak makes it seem though. Even humanity would have a tough time building a Jurassic Park in the next 15 years. First, we'd need some DNA from the prehistoric tyrants. Unlike in the film Jurassic Park, where the DNA is retrieved from mosquitoes in amber and fused with frog DNA, that information has completely degraded over the millions of years it has spent in the ground."
To be clear, Musk has done, and is doing, plenty of interesting, innovative things. Just Space X/Starlink alone are impressive achievements that are delivering genuine innovation. At the same time, Musk and friends have a growing history of over-hyping products that either don't exist, or don't deliver what was promised by marketing. Like his Boring Company's Las Vegas Loop, a project built on $50 million in taxpayer dollars that was supposed to revolutionize mass transit. Yet during a media event last week was shown to be just a boring, one-way tunnel filled with non-automated Tesla vehicles moving at 35 MPH:
"Whatever happened to those 16-person vehicles? When Musk first announced the Loop, it genuinely looked like an exciting new transportation system. Musk promised that each vehicle could fit over a dozen people inside and everything was autonomous. But it doesn't look like much of anything is automatic anymore. You even have to tell your human driver where you want to go."
Many outlets couldn't be bothered to even mention any of this, instead offering gushing, unskeptical stories that called the undercooked tunnel a "thrill ride":
Last week Neuralink also made an ocean of headlines after posting a video showing a monkey playing Pong with a brain implant. Press outlets went to great lengths claiming this new pong-playing psychic monkey would soon be "revolutionizing healthcare." Only a few outlets could be bothered to mention that nothing Neuralink is doing has been peer reviewed, FDA approved human trials appear nowhere on the horizon, there's notable safety and adoption issues that could derail such efforts, or that most of what Neuralink was hyping isn't particularly new:
"It's really cool and looks really impressive. But so does the below video, which shows an implant being used by a human to control a robotic arm. Notably, this video dates from 2012. The actual work was probably done earlier, and there were undoubtedly trials in monkeys well before this."
Meanwhile, actual experts and neuroethicists quietly doubted Neuralink can get remotely close to the kind of technology the company and Musk have promised anytime soon. But such voices in unskeptical, hyper-enthusiastic news coverage weren't particularly well represented.That's not to say that Neuralink's experiments don't hold potential, or that it's not damn impressive to see scientists transmitting data from 1,000 electrodes implanted in a monkey over a Bluetooth link. But at the same time, a lot of what Musk promises simply never materializes (like full and safe Tesla self driving), and news outlets aren't particularly great at presenting Musk and friends' latest claims with a grain or two of salt, or seeding stories with the essential context of a growing pattern of empty or over-inflated promises.Many journalists and readers alike can't seem to hold conflicting ideas in their heads simultaneously when it comes to Musk. The reality is that Musk is both an innovative tech pioneer and an egomaniacal grifter who routinely says dumb and untrue things:
"It turns out it's all true. The cars are impressive and their flaws get covered up. Musk is a lying ignorant grifter and he has inspired innovation in the electric car industry. Understanding that these seemingly contradictory things can be true simultaneously is important, because societies who cannot hold these two ideas at the same time may end up following scam artists and false prophets off the cliff and into the abyss."
There are countless researchers and scientists laboring under harsh halogen lighting at the edge of breakthrough tech and scientific innovation, who see little public attention. Their slow, steady progress generally isn't of interest to the ad-based media model. Such a model often isn't keen on explaining the deeper nuances of innovation with actual experts, because that simply doesn't make as much money as slack-jawed hype. Combine our ad-based media dysfunction with the generalized fanboy treatment of Musk as some kind of hybrid between Tony Stark and a god, and the net result is compounded hype untethered from reality.

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posted at: 12:00am on 20-Apr-2021
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Judge Has Some Fun Denying Injunction Requested By One Brewery For Another Over Trademark Suit

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While I write about a great many trademark disputes in these pages, there are certain stories that pique my interest above others, or otherwise become more fun. Writing about trademark issues in the alcohol industries has been something of a passion of mine, for instance. It's also fun to highlight when the courts get trademark questions right, since far too often the opposite occurs. And, when you have a judge who chooses to embed some humor in their rulings, that gets pretty fun as well.And then sometimes you run into a trademark story that combines all three of the above. Such is the case in a trademark dispute between two South Carolina breweries. Low Tide Brewing has sued Tideland Brewing for trademark infringement over its name. As part of that suit, Low Tide Brewing went so far as to seek a preliminary injunction against Tideland to keep it from using that name while the suit plays out.In ruling on the injunction, the judge was simply not having it.

“Low Tide has not made a clear showing of its likelihood to succeed on the merits of its trademark infringement claim. Without that showing, Low Tide is up the creek,” U.S. District Court judge David C. Norton concluded in his April 12 opinion. “Accordingly ... Low Tide’s request for an injunction (is) dead in the water.”
It's not Dave Chappelle level comedy, but it's pretty fun as far as these rulings go. And that wasn't the only part of the decision that incorporated a bit of humor into it. Though, given what the judge's reasoning for denying the injunction was, it seems likely that Low Tide isn't yucking it up alongside the judge.
As Norton noted in his ruling, a preliminary injunction is “an extraordinary remedy” that penalizes the defendant before the case is heard. Consequently, a trademark holder seeking a preliminary injunction must satisfy all parts of a four-prong test. One of those prongs involves demonstrating that consumers are likely to be confused about who made the product they’re enjoying. Norton agreed that Low Tide’s trademark is valid and distinctive, but found it wasn’t strong enough to cause customer confusion.“The instances of third-party use of the word ‘tide,’ locally and within the relevant industry, are enough to take the wind from Low Tide’s sails,” Norton wrote. “As such, Low Tide’s endeavor to wash away the prevalence of the word ‘tide’ in coastal commerce holds little water.”Furthermore, Norton ruled the two names aren’t so alike that consumers would struggle to tell them apart. “The marks are, at best, somewhat similar, meaning that Low Tide, now swimming upstream, has failed to demonstrate that the factor tilts the inquiry in its favor,” he wrote.
It doesn't end there. Norton went on to comment on Low Tide's submissions for what it calls actual customer confusion. That submission consisted of a single instance in which one of Low Tide's own employees called Tideland to ask if they were part of a Low Tide expansion. To that, Norton wrote in the ruling that "The court declines to take the bait."All of which is a puntastic way for the judge to let Low Tide know that, while the trademark case will indeed go on, the court isn't looking too fondly on Low Tide's side of the equation. At this point, it might be time for Low Tide to find a way to bow out of all of this as gracefully as it can muster.

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posted at: 12:00am on 20-Apr-2021
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This Week In Techdirt History: April 11th - 17th

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Five Years AgoThis week in 2016, the encryption wars continued. Senators Burr and Feinstein were planning a one-sided briefing with law enforcement, and soon officially released their terrible anti-encryption bill (though it seemed to be missing some stuff). The US Attorney bizarrely suggested a ban on importing open source encryption tech, while on the other hand the Inspector General was noting existing abuse of cell phone forensic equipment by law enforcement. Apple was still fighting the DOJ, and it became increasingly clear that the access they got to Syed Farook's iPhone didn't accomplish much if anything.Ten Years AgoThis week in 2011, it was copyright nonsense all over the place. The EU was getting ready to vote on an unnecessary copyright extension while some European lawmakers were talking about browser-based site blocking; GoDaddy's CEO was attempting to use copyright to silence critics; a judge who had allowed mass infringement lawsuits backpedaled after people noted her RIAA lobbying past; police were going after mixtape-making DJs, with RIAA reps in tow; and Joe Biden said there's no reason to treat intellectual property any differently from physical property. This was also the week that Sony settled its jailbreaking lawsuit against Geohot, though his supporters were not thrilled.Fifteen Years AgoThis week in 2006, we looked at Disney's MovieBeam as a prime example of entertainment companies not understanding how to use new tech properly, even if there were some hints that the company might be starting to figure it out. MLB.com was still trying to grow into the music space by running band websites, and everyone was trying to get in on the game of programmatic ad auctions, and/or the booming MySpace economy. We also saw an early freak-out over the Internet Archive's activities.

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posted at: 12:00am on 18-Apr-2021
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PlayStation Y2K-Like Battery Bug About To Become A Problem As Sony Shuts Down Check In Servers

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We've had a couple of discussions now about video game preservation with the impetus being Sony's shutdown of support for the PlayStation Store for PSP, PS3, and Vita owners. The general idea there was questioning what happens to games for those systems in the very long term if suddenly nobody can get to them anymore and the developers and publishers are not always retaining the source code and assets for these games on their end. That sort of thing is probably primarily of interest to us folks who look at these games as a form of art and culture, very much worth preserving.But Sony may well have a much bigger issue on its hands. As a result of a strange internal time-check issue that exists on PS3 and PS4 consoles, there is the very real possibility that those consoles will be unable to play any purchased game soon if the end user replaces the battery on the device. It's, well, it's a bit like Y2K, but for real.

The root of the coming issue has to do with the CMOS battery inside every PS3 and PS4, which the systems use to keep track of the current time (even when they're unplugged). If that battery dies or is removed for any reason, it raises an internal flag in the system's firmware indicating the clock may be out of sync with reality.After that flag is raised, the system in question has to check in with PSN the next time it needs to confirm the correct time. On the PS3, this online check happens when you play a game downloaded from the PlayStation Store. On the PS4, this also happens when you try to play retail games installed from a disc. This check has to be performed at least once even if the CMOS battery is replaced with a fresh one so the system can reconfirm clock consistency.
But if support for PSN goes away on these systems, so does the system's ability to check in to reconfirm the correct time. And if that happens, well, then suddenly any PS4 game will no longer be playable, nor will any PS3 game bought as a digital download. Sony, in other words, can essentially render these consoles mostly or totally useless for playing games just by shutting down PSN support for these consoles.Now, why did Sony create this problem for itself in the first place? Well, the answer is different for each console. On the PS3, it was used to enforce "time limits" on digital downloads. For the PS4, it appears to have been used more to keep gamers from messing with how trophies are shown, specifically for when they were earned. Either way, neither of those is so important at this point that Sony should risk bricking bought consoles as a result.Interestingly, the fix for this should be a simple firmware update... except that Sony hasn't said a word about whether one is coming.
Sony could render the problem moot relatively easily with a firmware update that limits the system functions tied to this timing check. Thus far, though, Sony hasn't publicly indicated it has any such plans and hasn't responded to multiple requests for comment from Ars Technica. Until it does, complicated workarounds that make use of jailbroken firmware are the only option for ensuring that aging PlayStation hardware will remain fully usable well into the future.
I can't imagine a single reason why Sony would want this looming customer crises on its hands... unless it's part of a plan to push the public to buy more, new-generation consoles and get their games back from there. If that is indeed the plan, the PR fallout is going to be insane.

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posted at: 12:01am on 17-Apr-2021
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Content Moderation Case Study: Friendster Battles Fakesters (2003)

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Summary: While the social media/social networking space today is dominated by Facebook, it's interesting to look at how Facebook's predecessors dealt with content moderation challenges as well. One of the earliest social networks to reach mainstream recognition was Friendster, founded by Jonathan Abrams in 2002 and launched in early 2003, gaining millions of users who signed up to connect with friends. Originally built as a dating site, it expanded quickly beyond that.One of the first big content moderation questions that the site faced was whether or not to allow fakesters. As the site grew rapidly, one popular usage was to set up fake accounts -- these were accounts for completely made up fictional characters (e.g., Homer Simpson), concepts (e.g., Pure Evil), random objects (e.g., Giant Squid), or places (e.g., New Jersey). Researcher danah boyd catalogued the different types of fakesters and studied the phenomenon of fake accounts on the site.

However, Abrams quickly decided that fakester went against the ethos of the site he envisioned. In a 2003 article in SF Weekly that discusses the fakester issue, Abrams makes it clear that such accounts do not belong on the site, even if some people find them amusing:
In early July, Friendster's affable chief operating officer, Kent Lindstrom, told me the only fakesters that the company would likely remove would be ones it received complaints about. (On Friendster, users can flag somebody's profile for the company to review, and write comments about why it offended them.) But Abrams shakes his head emphatically when I mention this.No. They're all going, he says, his voice steely. All of them.
As the article notes, the fakesters were often the most active users on the site, but that did not change Abrams' mind about whether or not they belonged there:
Though they are some of Friendster's most ardent fans many spend several hours a day on the site fakesters do everything they can to create anarchy in the system. They are not interested in finding friends through prosaic personal ads, but through a big, surreal party where Jesus, Chewbacca, and Nitrous are all on the guest list. To fakesters, phony identities don't destroy the social experience of Friendster; they enrich it.But fakesters aren't hosting this gig. Jonathan Abrams, the 33-year-old software engineer who founded Friendster to improve his own social life, is and he abhors the phony profiles. He believes they diminish his site's worth as a networking tool and claims that fakesters' pictures often images ripped off the Web violate trademark law. Abrams' 10-person Sunnyvale company has begun ruthlessly deleting fakesters and plans to eventually eradicate them completely from the site.
A few months later, an article in Salon laid out the growing conflict between those who found the fakesters to be fun, and Abrams who remained adamantly against them.
Giant Squid is not alone: Among the "Fakesters" who've signed up for Friendster are Jackalope, God, Beer, Drunk Squirrel, Hippie Jesus, Malcolm X and more than a dozen Homer Simpsons. Just like regular users, they post their photos, blab on bulletin boards and collect friends like so many baseball cards. Some, staying in character, even write gushing testimonials about their friends: What higher endorsement could there be than a few complimentary words from Homer himself? "Better than a cold can of Duff beer ... "But while it may be amusing to invite God himself into your pool of friends and get back the message, "God is now your friend," the founder of the site says that such chicanery only distorts his system."Fake profiles really defeats the whole point of Friendster," says entrepreneur Abrams, interviewed by cellphone as he waited to catch a plane in Los Angeles. "Some people find it amusing, but some find it annoying. And it doesn't really serve a legitimate purpose. The whole point of Friendster is to see how you're connected to people through your friends," he says.
Decisions to be made by Friendster:
  • Should it delete any and all fakester profiles? Should it only do so if users complain about a specific profile, or should it be proactive in removing such profiles?
  • How should the company deal with nicknames, rather than a person's real name? How would it distinguish between celebrities and those pretending to be celebrities?
  • Does removing fakesters harm some of the fun aspects that brought people to the site in the first place?
Questions and policy implications to consider:
  • Does forcing everyone to be on the site with their real name lead to less participation from more vulnerable and at risk populations, worried about putting their profiles online?
  • How much should web sites cater to emergent behavior, like fakesters, which some users enjoyed and resulted in more usage of the site?
  • Are there legal risks associated with allowing fake profiles?
Resolution: While Friendster continued its fights against fakester profiles, apparently the company's vehement stance against such profiles did not apply to monetization opportunities. In the summer of 2004, some people noticed an advertising campaign on Friendster for the Anchorman movie with Will Ferrell in which his character, Ron Burgandy was suggested as a friend to users.
When asked about this, Friendster tried to frame this situation as different than the fakester issue, saying that it was a new paradigm.
What Friendster is doing with these movie-character profiles is actually a brand-new paradigm in media promotion," Friendster spokeswoman Lisa Kopp said. "We are working directly with a number of production houses and movie studio partners to create film-character profiles, or 'fan' profiles, that allow our users to share their enthusiasm about the film with their friends."
The company also claimed that it wasn't fake because it was done in partnership with the movie studio Dreamworks, which had the rights to the character:
"The issue here is actually about consumer protection," said Kopp. "We do, as a policy, strongly discourage fake profiles. A rogue user hiding behind a Jesus profile, for example, has the potential to abuse the service or users in many ways. In the case of the Anchorman characters, DreamWorks owns the rights to the characters and there is nothing fraudulent about it."
Of course, many of the fakester profiles didn't involve anyone else's intellectual property, so this excuse wouldn't apply to accounts like Pure Evil and Giant Squid.Friendster struggled to grow, in part because its own success overwhelmed its technical abilities. The site was quickly overtaken by MySpace and then Facebook. Since then, other sites, including Facebook, have struggled with the question of whether or not accounts should have real names. While many have argued that such policies discourage bad behavior, studies on this point have suggested otherwise.Originally posted to the Trust & Safety Foundation website.

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posted at: 12:01am on 17-Apr-2021
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Private Prison Company On The Hook For Legal Fees After Suing Investment Group For Saying It Was Doing Stuff It Was Actually Doing

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Private prison company CoreCivic has just learned a civics lesson. [I'll show myself out.] Possibly a very expensive one.Last March, it sued [PDF] Candide Group, an investment firm that "directs capital away from an extractive global economy towards investments dedicated to social justice and sustainability." CoreCivic was one company Candide reps wanted money directed away from, citing its participation in separating parents from children at our nation's borders. (But really only the Southern border if we're honest.) Candide also claimed CoreCivic lobbies for harsher sentencing and tougher immigration laws since both of those would naturally provide more business for CoreCivic.CoreCivic's libel lawsuit said these two "falsehoods" were spread throughout the web via sites like Forbes and multiple social media platforms. It denied both assertions and said they were stated with a reckless disregard for the truth. Candide responded with an anti-SLAPP motion [PDF], which pointed out that not only could CoreCivic not prove the statements were false but also that it had filed its lawsuit past the one-year statute of limitations.The motion worked. After some back and forth discussion about the merits of the arguments, the court disposed of CoreCivic's lawsuit with a very short dismissal [PDF] in November. The order doesn't say much but it says enough to indicate just how weak CoreCivic's allegations were.

A multitude of issues have been tendered on defendants’ motion to dismiss and to strike the complaint for defamation. It turns out, however, that CoreCivic, Inc., did, in fact, operate detention facilities for parents separated from their children pursuant to the Border Patrol’s family separation policy. Thus, even though CoreCivic did not operate the detention facilities in which the children themselves were housed, CoreCivic did house the other half of the afflicted families or at least some of them. Therefore, the allegedly defamatory statements were true enough under the First Amendment and under California defamation law. Truth being a defense, the complaint is DISMISSED WITHOUT LEAVE TO AMEND. It is unnecessary to reach the remaining issues tendered. All other motions are DENIED AS MOOT.
Anti-SLAPP laws work. CoreCivic didn't like being publicly criticized, especially by an entity that could shift investors' money elsewhere. That these actions may have damaged CoreCivic's future profitability isn't really relevant -- at least not when its allegations of libel couldn't be sustained.Whatever money is now leaking from CoreCivic is going to be (mildly) compounded by its inability to recognize largely truthful statements as protected speech, rather than the defamation it clearly desires them to be. The court says [PDF] Candide is entitled to collect legal fees from CoreCivic -- an important facet of any good anti-SLAPP law. Candide's legal reps are asking for about $165,000 in fees. However, the tail end of the order suggests it won't be nearly that much.
First, defense counsel’s hourly rate is inflated way beyond the amount charged to the client. The anti-SLAPP attorney’s fee provision protects defendants from shouldering the costs of meritless litigation so fees should be limited to what actually “compensate[s] a defendant for the expense of responding to a SLAPP suit,” and not result in a bonus for attorneys.[...]Second, defense counsel spent too long on the motion to strike, especially in light of the experience and expertise of the attorneys which should have allowed them to make quicker work of this matter. Especially where hourly fees are high, there is “an expectation that [counsel] will complete tasks efficiently and that its more senior attorneys will limit their involvement to tasks requiring their level of expertise.
All anti-SLAPP motions are not created equal, but Judge William Alsup says this one is not that much more equal than others.
Other courts have determined a reasonable time expenditure for an anti-SLAPP motion to be between 40 and 75 hours, not 407.9 hours as here.
Whatever fees are eventually settled on, this case highlights the importance of having a strong anti-SLAPP law to work with. Without it, this case could have gone on for several more months and even a clear win for defendants would rarely result in fee shifting. CoreCivic sued because it didn't like being criticized for doing things it was actually doing. A suit like this is designed to silence critics and deter others from making similar statements. If a defendant bleeds long enough, an eventual victory is ultimately meaningless. The damage has been done and the threat remains.


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posted at: 12:00am on 16-Apr-2021
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Platform Wars Update: Epic Store Losing $330 Million Per Year To Acquire Customers

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It's been a while since we've checked in on how the PC gaming platform war is going. If you'll recall, the Spring of 2019 saw a new entrant into this ongoing battle, with Epic releasing the Epic Store. Epic's plan appeared to be essentially a PR battle at first, drawing in the public by proclaiming that Steam's revenue splits with developers and publishers were bad for the gaming industry and by drawing in publishers and developers with a better version of those splits for them. On top of that, Epic used those splits to gobble up a bunch of exclusive or timed exclusive releases of games, which ended up pissing off many in the gaming public and, of course, Steam. Then came Epic's free game releases, where the platform worked out deals with publishers to offer up AAA game titles for literally no money as a method for getting gamers to adopt the platform.All of this didn't come with zero fallout from what Epic was doing, of course. The public doesn't like exclusives generally. Crowdfunding got weird due to the exclusivity. And the launch of the Epic Store in the early days was not without its hiccups, either. Now that we're 2 years on, how has this all shaken out?Well, Epic is getting a decent chunk of market share with its tactics, even as the platform takes on major losses in doing so. The reason for those losses? Well, largely they have to do with all of those free games and timed exclusives. And we have Epic's battle with Apple to thank for the information.

The raw numbers, as reported in a "Proposed Findings of Fact and Conclusions of Law" document Apple filed last week, show massive incurred and projected losses for Epic's game download hub, which launched in late 2018. Documents and testimony from Epic itself show a $181 million loss for the store in 2019 and projected losses of $273 million in 2020 and $139 million in 2021.You might think Epic is incurring those losses because it only takes a 12 percent cut of third-party game revenues, compared to the industry-standard 30 percent cut on other digital storefronts. On the contrary, though—in its own court filings, Epic says that 12 percent revenue chunk has been "sufficient to cover its costs of distribution and allow for further innovation and investment in EGS."The main driver of EGS' losses, instead, is Epic's generous program of "minimum guarantees." These encompass the advance payments Epic has used to attract so many timed exclusives to its storefront and seemingly also cover the free games Epic makes available to Epic Games Store users every week.
Now, while this isn't precisely the type of method for using "free" as part of a business model as we've talked about in the past, it's close enough to count. The upshot of all of this is that commentary from Epic's folks makes it clear that they're well aware of these monetary shortfalls... and are largely just fine with them. The whole point of all of this is to make as big a dent in market share in a short time period as possible. And, of the two ways Epic saw to do that, taking on initial losses like this was the better option.
"There are two ways to bring users into something," Epic Games co-founder and CEO Tim Sweeney told Ars in 2019, just after the launch of the Epic Games Store. "You can run Google and Facebook ads and pay massive amounts of money to them. But we actually found it was more economical to pay developers [a lump sum] to distribute their game free for two weeks... We can actually bring in more users at lower cost by doing all these great things for great people rather than paying Google and Facebook."That effort is starting to work. Last June, Sweeney told PC Gamer that EGS had about 15 percent of the PC gaming market. That's not great, but it's not bad considering the near-monopoly power Steam has in PC gaming downloads (Sweeney estimated Steam's share at 90 percent in 2019, though that could be a bit inflated).
In court documents, Epic went on to note that it expects its storefront to start turning a profit in 2023, so it looks like it has some runway there as well.So, what does this all mean? Well, at the very least it's an interesting experiment in using free loss-leaders to gain customers and give them reasons to buy elsewhere on the platform. Epic hasn't pulled some magic trick to suddenly unseat Valve's Steam platform as of yet... but it's also apparently playing the long game here.

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posted at: 12:00am on 16-Apr-2021
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Lying NYPD Narcotics Detective Just Cost Prosecutors Nearly 100 Convictions

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Welcome once again to America's War on Drugs, already in progress.In the name of "protecting" us from the overstated ravages of drug addiction, the government engages in violence, rights violations, overzealous prosecutions, millions of interactions with the criminal justice system, and periodic bouts of performative lawmaking.And what have we gotten in return? Drug users are the real winners here. The more money we throw at the Drug War, the more easily accessible and cheap drugs are. While politicians and government agencies claim they want to save people from violence and corruption, violent and corrupt law enforcement officers are doing all they can to be worse than the problem they're supposed to be solving.When there's not enough drug activity to sustain local Drug Wars, the cops will create it. We saw this happen in Houston, Texas, where a botched drug raid, predicated on multiple levels of bullshit, resulted in cops killing two residents who had never engaged in the drug sales activity cited on the warrant request. Houston cops are, fortunately, feeling the pain. They may still be alive but they're facing a host of criminal charges.If there aren't enough drug war combatants to engage with, cops on drug task forces aren't above creating their own. The botched raid in Houston was predicated on a statement from a nonexistent informant and drugs pulled from a cop's cruiser.In New York City, it's more of the same. And it's going to cost city residents millions of dollars before this is all sorted out.

Over nearly two decades as a police officer and narcotics detective, Joseph E. Franco made thousands of arrests, many for the possession and sale of drugs. Mr. Franco often worked undercover, and his testimony secured convictions for prosecutors around the city.But officials who once relied on Mr. Franco are questioning his accounts. After he was accused of lying about drug sales that videos showed never happened, Mr. Franco was charged with perjury in Manhattan in 2019.Now, the fallout over Mr. Franco’s police work is spreading: As many as 90 convictions that he helped secure in Brooklyn will be thrown out, prosecutors plan to announce Wednesday. Many more cases in other boroughs could follow — a reckoning that lawyers said appears larger than any in the city’s legal system in recent history.
Cops lie. And their lies are swallowed by those who are supposed to be overseeing them. Turning drugs (and dealers) into cartoonish supervillains has paid off for law enforcement agencies. Billions of tax dollars finance efforts that have done nothing but ensure Americans can buy purer drugs at lower prices. When it's a cop's word against some drug fiend/dealer, everyone always believes the cop. Right up until they can't. Then the fallout begins.Problems that could have been caught months or years ago seem to only be addressed once they become too big to ignore. Detective Franco worked for the NYPD for nearly 20 years before being rung up on criminal charges. This says nothing good about the NYPD's internal oversight or internal culture that this went on for this long before it was discovered and addressed.Welcome to the criminal justice system, Detective Liar:
Mr. Franco was charged in 2019 with 26 criminal counts, including perjury and official misconduct, after investigators in the Manhattan district attorney’s office said that he had testified to witnessing several drug buys that video footage showed did not happen or that he could not have seen.
A whole bunch of "wins" for local prosecutors are now vanishing. And, if what we've seen elsewhere in the country is any indication, this will likely end up affecting far more than the ~90 convictions identified by prosecutors. Detective Franco has tainted the entire Narcotics Division. Any involvement of his is now presumably suspect.Blame the deference given to cops by everyone from prosecutors to courts to the press. Without this reputational free pass, stuff like this would have been spotted prior to it becoming a potentially 20-year problem.
In one episode on the Lower East Side, a man was arrested in February 2017 after Mr. Franco said he witnessed the man selling drugs inside the lobby of a building. But prosecutors said security video showed the transaction never took place — and Mr. Franco had never even entered the building.In a similar arrest four months later, Mr. Franco said he saw a woman selling drugs in a building’s vestibule on Madison Street. He had not gone into the vestibule, however, and was too far from the woman to observe any sale, prosecutors said after reviewing security footage.
If a detective is this comfortable lying, it's because they've had years of practice and zero pushback from supervisors or other officers on the scene. This is the sort of thing that happens when accountability is nearly nonexistent. Better late than never, for sure. But if the nation's law enforcement agencies want to win back the public's trust, they need to address the internal rot they've ignored or tolerated for years.

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posted at: 12:00am on 15-Apr-2021
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Content Moderation Case Study: Lyft Blocks Users From Using Their Real Names To Sign Up (2019)

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Summary: Users attempting to sign up for a new ride-sharing program ran into a problem from the earliest days of content moderation. The "Scunthorpe problem" dates back to 1996, when AOL refused to let residents of Scunthorpe, England register accounts with the online service. The service's blocklist of "offensive" words picked out four of the first five letters of the town's name and served up a blanket ban to residents.Flash forward twenty-three years and services still aren't much closer to solving this problem.Users attempting to sign up for Lyft found themselves booted from the service for "violating community guidelines" simply for attempting to create accounts using their real names. Some of the users affected were Nicole Cumming, Cara Dick, Dick DeBartolo, and Candace Poon.These users were asked to "update their names," as though such a thing were even possible to do with a service that ties names to payment systems and internal efforts to ensure driver and passenger safety.

Decisions to be made by Lyft:
  • Should names triggering Community Guidelines violations be reviewed by human moderators, rather than automatically rejected?
  • Is the cross-verification process enough to deter pranksters and trolls from activating accounts with actually offensive names?
Questions and policy implications to consider:
  • Considering the identification system is backstopped by credit cards and payment services that require real names, does deploying a blocklist actually serve any useful purpose?
  • Given that potential users are likely to abandon a service that generates too much friction at sign up, does a blocklist like this do damage to company growth?
  • Does global growth create a larger problem by adding other languages and possible names that will trigger rejections of more potential users? Can this be mitigated by backstopping more automatic processes with human moderators?
Resolution: The users affected by Lyft's blocklist were reinstated. Lyft apologized for the rejections, pointing a finger at automated moderation efforts designed to keep people from creating offensive content using nothing more than the First Name/Last Name fields.Unfortunately, the problem still hasn't been solved. Candace Poon -- whose first attempt to sign up for Lyft was rejected -- just ran into the same issue attempting to create an account for new social media platform, Clubhouse.Originally posted to the Trust & Safety Foundation website.

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posted at: 12:00am on 15-Apr-2021
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Court Says Two Cops Who Deployed Deadly Force Can Use Florida's Victims' Rights Law To Hide Their Names From The Public

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Laws written with good intentions are being used in bad faith by public servants hoping to shield themselves from public scrutiny. Multiple states have passed versions of "Marsy's Law" -- legislation that grants more rights to victims of crime, including blocking the release of personal info under the theory this will protect victims' privacy and head off abuse and harassment.Law enforcement officers have discovered this law and legislators' seeming unwillingness to exempt public employees from these protections. And, since officers are often able to claim every violent act they've engaged in was predicated by a criminal act by the suspect they've deployed force against, they're able to claim they were "victims" of crimes, even if the crime was nothing more than the grab bag of charges commonly known as "contempt of cop."We saw this law put to work a few years ago in South Dakota. An officer, who shot an arrestee two times, was able to keep their name private despite being engaged in public service and presumably putting their name on official reports about the incident -- reports that would be considered public records.It has happened again, this time in Florida. Two officers who deployed deadly force against arrestees -- represented by their police union -- have successfully sued to keep their names secret. The Florida Court of Appeal says the victims' rights enacted by the law are constitutional and the withholding of these officers' name is completely justified. (via Volokh Conspiracy)The lower court's decision coming down on the side of transparency and accountability has been reversed. Here's how the lower court summed it up:

The Court finds that the explicit language of Marsy’s Law was not intended to apply to law enforcement officers when acting in their official capacity.[...]The officers do not seek protection from the wouldbe accuseds, instead they apparently seek protection from possible retribution for their on-duty actions from unknown persons in the community. This type of protection is outside the scope of Marsy’s Law and is inconsistent with the express purpose and language of the amendment. This Court cannot interpret Marsy’s Law to shield police officers from public scrutiny of their official actions.
Unfortunately, this court can interpret the law this way. It says the lower court misread the conflict between the state's victims' rights law and the public's right to "inspect or copy records of any state of local agency." The Appeals Court [PDF] says the newer law (the victims' right law) supersedes the older public records law (emphasis in the original).
Article I, section 16 can be construed in harmony with article I, section 24(a)—without excluding from the definition of crime victim any person entitled to protection under article I, section 16. Article I, section 24(a) describes the broad right to inspect or copy public records in Florida:Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted under this section or specifically made confidential by this Constitution.
The Appeals Court says older laws can be altered by newer laws, and residents' overwhelming support of the state's Marsy's Law (61% of voters) suggests the state as a whole desired the new law to protect every criminal victim, even public servants charged with arresting suspected criminals.The court says the police can police themselves. It does not need the assistance of the public that has been locked out by this use of the victims' rights law.
This does not mean that the public cannot hold law enforcement officers accountable for any misconduct. Maintaining confidential information about a law enforcement officer who is a crime victim would not halt an internal affairs investigation nor impede any grand jury proceedings. Nor would it prevent a state attorney from reviewing the facts and considering whether the officer was a victim. If a prosecutor determines that the officer was not a victim and instead charges the officer for his conduct, then the officer would forfeit the protections…
But these are all state and local actions that -- while nominally performed to benefit the public -- rarely involve direct public participation or result in outcomes that approach any widely understood definition of "accountability."This may be the correct ruling inasmuch as that's what the law says. But it's certainly not keeping with the spirit of the law, which was supposed to protect crime victims, not shield public employees from accountability. Legislators who've enacted these laws around the nation need to amend them to ensure this sort of abuse ceases.

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posted at: 12:00am on 14-Apr-2021
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Flip-Flop: Nike Now On The Receiving End Of Trademark Threat Over USPS Inspired Sneakers

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Nike finds itself on our pages again. We're fresh off of the settlement Nike reached with MSCHF over the Lil Nas X "Satan shoes". That settlement sees MSCHF agreeing to buy back at retail prices 666 modified Nike Air Max 97s after Nike sued over trademark. It could have been an interesting case, bringing in all kinds of questions about resale rights, the First Amendment, ownership of property, and more. Instead, it all ends with a posturing settlement that achieves nearly nothing, since these fought-over shoes have suddenly been moonshot into an even more rare and valuable item than they already were. But, Nike gets its ounce of litigation blood and gets to pretend this is all somehow a victory.And perhaps that settlement will be referenced in another trademark dispute that seems to be brewing between the United States Postal Service and Nike, with Nike this time on the receiving end of the threats.

In an ironic twist, the sneaker giant is being taken to task by the United States Postal Service over an upcoming postal service-inspired sneaker reportedly being planned by Nike. The USPS’s challenge, the latest in a string of public relations headaches for the top athletic brand, all but guarantees the company will end up in court once again — but with the shoe on the other foot.According to a USPS statement provided to Yahoo Finance, Nike’s experimental Air Force 1 sneaker “is neither licensed nor otherwise authorized by the U.S. Postal Service This is an unfortunate situation where a large brand such as Nike, which aggressively protects its intellectual property, has chosen to leverage another brand for its gain.”
Now, perhaps you're wondering just how much borrowing Nike is doing here. Well...
So, yes, the imagery of this entire sneaker is very clearly an homage to the USPS iconography and dress. Due to that, the USPS statement also noted ominously that it will do everything necessary to protect its "IP rights".It's worth noting that I don't think this sort of thing represents trademark infringement necessarily. The chief questions in these cases are, first, will the public be confused into thinking there is some kind of official association at play here and, second, does the use in question dilute the brand. I would argue that nobody is going to think that the USPS is somehow now in the sneaker business and, because of that, nobody is going to think less or differently of the federal mail system by this use.But, on the other hand, those are the same arguments made by those of us who pushed back on Nike's suit against MSCHF.
According to Christopher Buccafusco, a legal expert at the Cardozo Law School in New York City, Nike might find itself on far more shaky ground than when a judge ruled relatively swiftly in its favor.“Nike’s claims to doing this without a license are much weaker than MSCHF,” he told Yahoo Finance. The latter “is engaged in a pretty obvious set of criticism and comments on Nike and Nike’s role in corporate culture. All of the sorts of things that we think fair use are there to protect,” he explained.Yet Nike “is not doing any of that. [It’s just saying] that’s a cool logo that USPS uses, we want to use your cool logo. It’s not a commentary on USPS,” Buccafusco added. “Nike is not engaged in a first sale. It’s not like Nike bought USPS logos and stuck them on their shoes. They created a logo that was like the USPS logo because it kind of looks cool to them,” he said.
Note here as well that Buccafusco, despite the above, went on to state that he does not think Nike should lose this case if it does in fact go to court.But, you know, live by the sword and die by the sword and all that. Given the recent lawsuit and settlement reached, it strains the mind to see how in the world Nike plans to articulate a coherent defense for itself in this case.

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posted at: 12:00am on 14-Apr-2021
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Activists Say Biden Camp Taking Too Long To Properly Staff The FCC

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If you'll recall, the Trump administration rushed the appointment of Nathan Simington to the FCC last year, despite Simington having absolutely no real experience or qualifications for the role. That's because Simington was appointed for two other reasons. One being the idiotic (and utterly hypocritical if you tracked the net neutrality fights) effort by the Trump administration to try and have the FCC target Section 230, which was derailed by Trump's election loss.But the other purpose of Simington's rush announcement was to ensure the FCC would be gridlocked at 2-2 commissioners. Like the FTC, the FCC is comprised of a 3-2 partisan makeup depending on who controls the White House. And while Biden could have easily appointed a new FCC Commissioner to break that gridlock, we're now three months-plus into his Presidency and the Biden camp still hasn't appointed a third Democratic Commissioner (and potential new FCC boss).Without that majority, the FCC can't reverse a lot of Trump era policies, like net neutrality. Or the telecom-lobbyist backed effort to effectively lobotomize the FCC's consumer protection authority. And not too surprisingly, activists are starting to get a little punchy about the delay

"The Federal Communications Commission is deadlocked, and will remain so until the Biden administration nominates, and the Senate confirms, a fifth commissioner. But we desperately need a functional FCC now: Millions of people are without reliable Internet access in the midst of a pandemic, kids are sitting outside Taco Bell to do homework, and people need to access information about how to get a vaccine."
On the one hand, some delay is understandable given the sheer volume of priorities on the administration's plate. At the same time, as telecom policy wonk Harold Feld notes, the delay is effectively crippling the FCC's ability to do its job during a pandemic that is clearly showcasing the essential nature of broadband. And the window broadband industry reform advocates are working with could be a very narrow one:
"That's basically a year lost on the ability to move forward on anything remotely controversial, or starting major new initiatives. That's huge, particularly if either the House or Senate (or both) flips in 2022. As I say, it's understandable given the multiple crises and the catastrophic damage done by the Trump Administration to the basic infrastructure of governance. But even if it's understandable, it's a trade-off with costs that need to be appreciated."
While vague, the Biden broadband plan is hitting most of the right notes with activists, given its heavy focus on community broadband efforts (and a strange concept known as "more competition"). But it's going to have one hell of a time getting passed a heavily telecom-lobbied Congress. Meanwhile, the FCC, the one agency perfectly tailored to holding telecom monopolies accountable, is effectively being forced to sit on its hands and wait before it's able to actually do its job and reverse Trump era policies focused largely on one thing: making AT&T, Verizon, and Comcast happy.The lag in prioritizing the appointment of a new FCC head is just the latest indication of our myopic, imbalanced obsession with "big tech" as the only policy conversation worth having, while "big telecom" gets a free pass. While "big tech" gobbles up all the policy oxygen and sees endless calls for antitrust reform, "big telecom" continues to not only expand its massive broadband monopoly and vertically-integrated media empires, but increasingly mimic all the worst aspects of "big tech" as telecom giants increasingly push into online advertising."Big telecom" is every bit as problematic as "big tech" (in some ways worse given telecom's physical monopoly over access itself and close alliance with law enforcement and intelligence) yet the sector continues to get DC policy attention that floats somewhere between kid gloves and outright apathy.

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posted at: 12:00am on 13-Apr-2021
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Iowa Senate Approves Bill That Would Add Qualified Immunity To The State Law Books

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In 2018, the Iowa Supreme Court decided to align the state with one of the worst aspects of federal jurisprudence. Deciding it was too much to demand law enforcement officers perform their duties without violating rights, the state's top court decided to adopt a form of qualified immunity so plaintiffs could be just as screwed in state courts as in federal courts.The case prompting this decision dealt with an arrest of someone who drove an ATV through a ditch. This violated state law but did not violate city laws. So, the court decided this bizarre case involving a conflict of state and local laws should be the standard bearer for civil rights lawsuits going forward.A long dissent decried this decision, saying that lowering Iowa's standard to the federal standard was the wrong way to go. It would only make cops worse by providing them with a built-in excuse for every time they crossed constitutional lines.

We should not voluntarily drape our constitutional law with the heavy chains of indefensible doctrine. We should aim to eliminate fictions in our law and be honest and forthright on the important question of what happens when officers of the law commit constitutional wrongs that inflict serious reputational, emotional, and financial harms on our citizens.
That's been the standard in the state since this decision. For some reason -- with protests against police violence still ongoing around the nation -- the state legislature feels now is the time to codify the doctrine first conjured up by the US Supreme Court into Iowa law.
The Iowa Senate passed legislation Monday intended to strengthen 'qualified immunity” for law enforcement officers who take forceful action in situations where state law is 'not sufficiently clear” to understand their conduct might violate someone's constitutional protections.Majority Republicans said the statutory language is needed to clarify court rulings and provide 'balance” in cases where the law was not 'clearly established” at the time of an incident giving rise to a claim against an officer.
The bill does more than give Iowa officers a new defense tactic. It codifies the US Supreme Court's watered-down legal standards that have made it extremely difficult for plaintiffs suing over rights violations to succeed.
Under provisions of the legislation, a law enforcement officer would not be found liable in any action for damages in an individual capacity if the state law was not sufficiently clear so that the officer would have understood the conduct was a violation of the Constitution or any other law, or the law was not clearly established at the time of the incident giving rise to the claim against the officer.The burden would be on the plaintiff to show that the law enforcement officer violated a clearly established constitutional or statutory right and the officer's employing agency would not be liable if the officer was found not to be liable under the new provision.
There is no reason to do this since state precedent says this already exists. What's happening here appears to be political point scoring that caters to the base these legislators have chosen to serve.
'We're not here today to try to create something new,” said Sen. Dan Dawson, R-Council Bluffs, 'we're trying to preserve the current law of the land right now because there are a slew of political actors out there that have decided in making kicking law enforcement in their teeth a hobby every day.”
If you're not creating anything new, why are you bothering? Is this the counter-hobby -- one that placates cops and gives cop fans a reason to cheer, even as it makes holding officers accountable much more difficult? The legislation is, at best, redundant. At worst, it's a public statement to law enforcement that their supposed oversight is more interested in keeping officers happy than making sure they respect the rights of the people they serve.

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posted at: 12:00am on 13-Apr-2021
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This Week In Techdirt History: April 4th - 10th

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Five Years AgoThis week in 2016, broadband providers were either fighting against privacy protections or trying to charge a premium for them (not unlike their approach to uncapped bandwidth). Evidence continued to show that encryption and "going dark" were not the cause of recent terrorist attacks, but that didn't stop Senators Burr and Feinstein from releasing an anti-encryption bill that was even more ridiculous than expected (while the White House aimed to punt on the question). But this was also the week that WhatsApp finished rolling out end-to-end encryption, and the week of the massive Panama Papers leak.Ten Years AgoThis week in 2011, the MPAA filed its expected lawsuit against Zediva, while an appeals court heard the Joel Tenenbaum case, and Congress had a hearing on file sharing that turned into everyone against the COICA censorship bill, but Senator Leahy was happy to completely ignore the first amendment concerns. We also saw some worrying assertions emerge about what constitutes infringement, like linking to legal videos by rightsholders, being liable for people finding infringing movies via your search engine, and even forwarding a single sentence from a mailing list.Fifteen Years AgoThis week in 2006, there was yet another fight over song pricing on iTunes, while movie studios were continuing to attempt digital distribution with all the convenience sucked out, and newspapers were simultaneously bragging and whining about how much traffic their websites got. The RIAA was continuing its tradition of drop out of school to be able to pay a settlement fee. Also: the latest attempt to create a law about violent video games was once again declared unconstitutional, Netflix disappointingly (and unnecessarily) tried to use business model patents against Blockbuster, and, after insisting it would never happen, Apple began officially endorsing the use of Windows on new Macs with Intel chips.

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posted at: 12:00am on 11-Apr-2021
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Khloe Kardashian Streisands A Photo She Wanted Taken Down By Issuing Takedowns

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The Kardashians are no strangers to Techdirt's pages. Being comprised of family members who are by and large famous for being famous, the Kardashians have been notorious for a heavy-handed approach to policing their own images, often times through spurious claims on intellectual property or publicity rights. So, heading into this story, it should be noted that the default posture of this particular family tends to be the use of IP claims to police anything to do with the family's image on the internet.But, as readers of this site will recognize, often times these policing attempts have the opposite of the intended effect. This certainly seems to be the case with Khloe Kardashian's recent attempts to rid the internet world of a un-touched photo of her poolside.

The alleged leaked photo pictured Kardashian smiling in a swimsuit. Many previously criticized Kardashian on social media for her attempts to remove it online after it was leaked, suggesting she was contributing to body image issues by hiding the unfiltered photo. In her post, Kardashian said she thought the leaked photo of herself was "beautiful" but she is entitled to want it removed."When someone takes a photo of you that isn’t flattering in bad lighting or doesn’t capture your body the way it is after working so hard to get it to this point, you should have every right to ask for it to not be shared - regardless of who you are," she wrote.
That... isn't how copyright law actually works, though. And it was copyright Khloe's team used to issue takedown requests to all kinds of sites, including Reddit and Twitter. According to her team, the photo was shot at a Kardashian residence and was "accidentally uploaded" to the internet by "an assistant." Left unsaid are some important details when it comes to the copyright question. Some reports indicate that the takedown notices were issued by Khloe's grandmother, who reportedly took the photo. When the family assistant uploaded it on accident, it was done so without authorization. A mistake. But once that was done, it's unclear how sharing the post via retweets and social media somehow is a copyright violation subject to a DMCA notice.But that isn't really the point of this post. Instead, this is a story of a classic Streisand Effect in action. Due in large part to the efforts to disappear the photo, it's now in much wider circulation on the internet, including in posts from news organizations where any takedown request made by the Kardashians would run straight into the First Amendment. And so now the photo Khloe wanted disappeared is all over the place.
After circulating for about two days, the image is likely experiencing the Streisand Effect, where the effort to suppress information — a story, a video or a picture — only amplifies it further.
Now, I am not including the photo in question here for multiple reasons. First, I don't need it to get the point of the post across. Second, in recent comments, Khloe has indicated that part of the reason for her wanting the photo gone is that she has struggled with body image issues in her life and I have enough respect for that to not want to add to it.But that's kind of the point, right? Other media sources are showing the photo as part of the news coverage of all of this, which is the exact opposite reality that Khloe was attempting to achieve with the aggressive takedowns of the photo elsewhere. Sometimes, it seems, it's a better strategy to simply let a story die rather than amplify it by trying to kill it.

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posted at: 12:00am on 10-Apr-2021
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Content Moderation Case Study: Dealing With Podcast Copycats (2020)

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Summary: Since the term was first coined in 2004, podcasts have obviously taken off, with reports saying that around 55% of Americans have listened to a podcast as of early 2021. Estimates on a total number of podcasts vary, but some sites estimate the total at 1.75 million podcasts, with about 850,000 of them described as active. Still, for many years, actually hosting a podcast remained somewhat complicated.A few services have been created to try to make it easier, and one of the biggest names was Anchor.fm, which tried to make it extremely easy to create and host a podcast -- including the ability to add in an advertising-based monetization component. In early 2019, as part of its aggressive expansion into podcasts, Spotify purchased Anchor for $150 million.However, in the summer of 2020, podcasters began calling out Anchor for allowing others to re-upload copies of someone else's podcasts, claim them as their own, and monetize those other podcasts. Erika Nardini from Barstool Sports called this out on Twitter, after seeing a variety of Barstool podcasts show up on Anchor, despite not being uploaded there by Barstool.

The issue got a lot more attention a month later when podcaster Aaron Mahnke wrote a thread detailing how a variety of popular podcasts were being reuploaded to Anchor and monetized by whoever was uploading them.After that thread started to go viral, Anchor promised to crackdown on copied/re-uploaded podcasts. The company claimed that it had an existing system in place to detect duplicates, but that those doing the uploading had figured out some sort of workaround, by manually uploading the podcasts, rather than automating the effort:
The copycats, Mignano says, found a workaround in Anchor's detection system. This is definitely a new type of attack for Anchor, he says. The people who uploaded these copycat shows downloaded the audio from another source, manually reuploaded it to Anchor, and filled in the metadata, essentially making it appear to be a new podcast.This manual process, he says, makes uploading copycat shows more time-intensive and therefore less appealing and only achievable on a small scale. He says the company found a few dozen examples out of the more than 650,000 shows uploaded to Anchor this year. (In contrast, people can also upload shows more automatically by pasting an RSS feed link into Anchor, but the company would seemingly detect if someone tried to upload a popular show's feed and pass it off as their own.)The good news is that so many creators are using Anchor, and that growth has been far more than I think we projected, which is great, but I think the downside in this case is that, with any rapidly growing platform, that has brought on some growing pains and we need to do a better job of anticipating things like this, he says. We're working right now to ensure that our copycat detection and creator outreach continues to improve to keep pace.
Decisions to be made by Anchor/Spotify:
  • How do you detect which podcasts are copies from elsewhere, especially when the original versions may not have originated on Anchor?
  • People can always work around attempts to block copycats, so what kind of review process can be put in place to prevent abuse?
  • Will being too aggressive at preventing abuse potentially lead to taking down too much? For example, what if one podcast uses clips from another for the purpose of commentary?
  • Should there be extra validation or other hurdles to turn on monetization?
Questions and policy implications to consider:
  • What are the trade-offs in making it especially easy to host, distribute and monetize podcasts? Is it worth making it so easy when that process will likely be abused?
  • Is there a middle ground that allows for the easy creation, distribution and monetization of audio content that won't be as subject to abuse?
  • Is there a risk that cracking down on copycat content itself could go too far and silence commentary and criticism?
While Anchor/Spotify continue to update their practices, in the midst of all of this, another story came out (with less attention) showing how being too aggressive in stopping copycats can also backfire. This story actually came out a month before Anchor said it would beef up its process for stopping copycats, and involved a podcaster who wanted to test out Anchor to see if he should recommend it on his own podcast. That podcaster, Jonathan Mendonsa, posted a test episode to Anchor to see how it works, only to have his entire account shut down with no explanation or notice.Mendonsa was surprised to find out that Anchor was comparing audio he uploaded to Anchor to audio uploaded elsewhere, and felt that the decision to completely shut down his account immediately was perhaps a step too far. From the story at PodNews:
Jonathan told Podnews: I was testing Anchor to see if I would recommend it to my podcast course students. This duplicate content" caused them to not only take down the episode but to actually shut down my account entirely without no recourse or notice. What does that mean when a podcaster wants to republish an old episode? Or use a clip from another episode?"For this show to have been pulled within two hours of posting must mean that Anchor is automatically comparing audio uploaded to their platform with all audio already available on Spotify - since this audio was identical to an episode already there.Anchor needs to clarify the tech they are using, and what triggers this, Jonathan told us. I never considered that any podcast platform would be looking for duplicate content, so I just used the same trailer. I wouldn't be mad if it got flagged or the episode got unpublished - but to delete the entire account?
It's interesting to note the challenges on both sides of this issue, with some being upset that Anchor makes it too easy to distribute duplicate content, and others being upset at how quickly and aggressively it responds to duplicate content.Originally posted to the Trust & Safety Foundation website.

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posted at: 12:00am on 10-Apr-2021
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Filecoin Foundation Donates $10 Million Worth Of Filecoin To Internet Archive

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Some really fantastic news if you believe in (1) the wonderful work the Internet Archive does and (2) the future of a more decentralized internet (and, for what it's worth, you should believe in both of those things). The Filecoin Foundation has donated 50,000 FIL to the Internet Archive. This is approximately $10 million worth of Filecoin, which represents the largest single donation to the organization. Obviously, by the amount alone, this is a big deal and hugely important for an Internet Archive that is currently facing an existential legal attack by publishers who hate the very idea of libraries.But it's doubly interesting, because Filecoin, from Protocol Labs, is a key component that many are hoping will empower a new more distributed web. And it appears that the Internet Archive is looking to take advantage of this aspect as well (as it should):

Holy Crow! This is a big deal, said Brewster Kahle, the Internet Archive's founder. And what are we going to do with it? We're going to invest it in making the Internet Archive more decentralized, so that our digital history is available from thousands of computers, not just a few. The idea is to make a robust and private Internet that has a history that will persist over decades and maybe centuries.
This is amazing news and exciting for both the future of the Internet Archive and a more distributed internet, not under the control of any single big internet giant.

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posted at: 12:00am on 09-Apr-2021
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Game Publishers: If Your DRM, Anti-Cheat Software Does Creepy Installs, Warn Your Customers First

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Any cursory review of our stories involving DRM will leave a sane reader with only one impression: the spectrum of customer viewpoints on video game DRM ranges from total and complete disgust and hatred to tolerance of DRM as an annoyance. In other words, there is no positive side of this spectrum. There are no gamers that are pro-DRM, only those that put up with it. On the flip side, there are many folks who not only hate DRM in video games, but also many who are quite wary of what that DRM is and is doing on or to their machines. There are historical reasons for this, from DRM support falling off and bricking previously bought games to DRM practices that appear to install shady shit on gamers' PCs.In these modern times, it would be absurd to suggest that the general public has mostly graduated to a new level of technical proficiency... but I think we can also say that the average gamer is probably more aware of how these games operate and install on their machines than they have been in the past. Which is probably why, in 2021, it was a really bad idea for one game publisher to use anti-piracy measures that install what sure looks like unknown, shady software on customer machines.

Fans of the RPG Another Eden—out this month on PC—this week discovered that, alongside installing the game itself, copies of the game obtained on Steam were also installing something called ‘wfsdrv’ which seemingly had nothing to do with the game.Initially believed to be some kind of driver, then suggested as something more sinister, fans scrambled to try to discover just what was nestling itself into their system32 folders, and could have been...literally anything.
Finding a game randomly installing something unexpected obviously throws up all kinds of red flags. Then, when you go looking for any information on this mysterious software and come up with nothing, it's likely to send your concern into overdrive. People on Steam and social media went nuts trying to figure out what this software is and why it was being installed on their machines.As you've probably already guessed, it turns out it's a DRM/anti-cheat software. Another Eden developers eventually jumped into the Steam forums to try to calm everyone down.
We have been recently made aware about concerns users are having with the “wfsdrv” program that is installed along with the Steam version of Another Eden.We take information privacy seriously at WFS and would like to alleviate any fears our users might have about the security of the recently released Steam version of Another Eden. The program in wfsdrv is an anti-cheat kernel driver, and is installed to protect the integrity of the Another Eden experience so that all players are able to operate in a fair play-environment.
This just isn't good enough. We'll leave aside for a moment that DRM and anti-cheat software is largely trash. Instead, it seems like a decent proposition that in 2021 you should give your customers a heads-up if you're going to be installing stuff on their machines that doesn't appear to be part of the game they bought. Something on the Steam page, or in the release notes. Maybe an FAQ that names the software by name so that anyone searching for information on it can see it.Anything other than simply dropping it onto customer PCs without telling anyone and then trying to manage the fallout afterwards. Or, hey, maybe don't use this software that probably doesn't work anyway.

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posted at: 12:00am on 09-Apr-2021
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TorrentFreak Continues To Get DMCA Takedown Notices Despite Not Hosting Infringing Material

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It's no secret that TorrentFreak, a mainstay news site covering copyright and filesharing issues, gets more than its fair share of errant DMCA takedowns and other wayward scrutiny. This is almost certainly a function of the site's chosen name, though the sheer volume of mistaken targeting of the site also serves as a useful beacon for just how bad policing copyright has become. If you can't get past a news site having the word "torrent" in its name, then we should probably all admit we're operating at a very silly level of IP enforcement.And yet it keeps happening. Most recently, TorrentFreak reported on a request made to Google to delist a post the site did on how popular The Mandalorian was with pirates.

Every week we see obvious errors, where sites such as IMDb, Wikipedia, Justice.gov, and NASA are targeted. By now we ignore most of these mistakes but in some instances, we take them personally. That’s also the case for a DMCA takedown request Google received a few days ago. This notice claims to identify several problematic URLs that allegedly infringe the copyrights of Disney’s hit series The Mandalorian.This is not unexpected, as The Mandalorian was the most pirated TV show of last year, as we reported in late December. However, we didn’t expect to see our article as one of the targeted links in the notice. Apparently, the news that The Mandalorian is widely pirated – which was repeated by dozens of other publications – is seen as copyright infringement? Needless to say, we wholeheartedly disagree. This is not the way.
A couple of things we should absolutely point out. First, at the time of this post being written, Google has not delisted the post from search results. Also, and this genuinely surprised me, Disney was not the the party requesting the post be delisted, despite the show being a flagship on Disney+. Instead, the requesting entity is something called GFM Film. TorrentFreak was unable to pin down precisely who that company is or where it's from, as there looks to be several potential candidates found via web search.All of which is only really interesting in terms of finding out who is responsible for this screw up. Because, again, TorrentFreak is a news site that does not host a single bit of infringing digital material. The policing of copyright is full of this sort of collateral damage and that doesn't seem to be a problem anyone seriously wants to tackle.

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posted at: 12:01am on 08-Apr-2021
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Content Moderation Case Study: NASA Footage Taken Down By YouTube Moderation (2012)

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Summary: NASA's historic landing of a mobile rover on the surface of Mars created many newsworthy moments. Unfortunately, it also generated some embarrassing takedowns of NASA's own footage by YouTube's copyright flagging system, ContentID.

NASA uploaded its own footage of the landing -- footage that was public domain given that it was a work created by the U.S. government. US copyright law says that any work created by the US government cannot be granted a copyright. It is, instead, in the public domain, and can be used by anyone without restriction. Unfortunately, the use of this public domain footage in news broadcasts created by Scripps (owner of multiple TV stations as well as a significant ABC stakeholder) put a chain of events in motion that ultimately saw NASA's footage taken down by YouTube.The problem was YouTube's ContentID. Once Scripps uploaded its footage, ContentID bots began crawling the site seeking matches. ContentID is structured in such a way that it believes that if content is uploaded by a private entity, that entity has a legitimate copyright over it -- even if the content is in the public domain, shareable freely by all. Shortly thereafter, NASA footage began disappearing while Scripps' broadcasts utilizing NASA footage stayed live.This unfortunate outcome is common enough NASA reps are used to having to contact YouTube to get their own public domain uploads restored.Decisions to be made by YouTube:
  • Should this collateral damage to footage uploaded by government agencies continue to be an acceptable outcome of automated moderation?
  • Should YouTube consider a "three strikes" system that punishes false copyright claims, rather than just those wrongly targeted by ContentID matches?
  • Should YouTube require more input and detail from copyright claimants in order to head off errors like these?
  • How should ContentID deal with material that is in the public domain?
Questions and policy implications to consider:
  • Does erring on the side of copyright holders (even when the rightsholders are wrong) decrease the chance of YouTube being involved in copyright litigation?
  • Is it possible to backstop newsworthy events involving government agencies (and their recordings) with more human moderators? Or is it impossible to decide what's newsworthy or not given the immense amount of footage uploaded to the site every day?
  • Is overblocking -- including public domain works -- a reasonable price to pay to avoid infringement?
Resolution: While these sorts of mistaken takedowns are less frequent, they still occur. The most recent removal of NASA footage from YouTube was the result of a (likely automated) copyright claim by National Geographic, which had incorporated NASA's recordings into its own production. Given YouTube's dominant position in the video marketplace -- which has resulted in it processing thousands of hours of uploads every day -- it seems unlikely a solution that pleases every competing stakeholder will ever arrive.Originally published to the Trust & Safety Foundation website.

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posted at: 12:01am on 08-Apr-2021
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Activision Once Again Abuses DMCA To Try To Bury Leak Of New 'CoD' Content

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Back in February of 2020, we wrote about several odd attempts by Activision to use the DMCA takedown process to try to bury leaks of content in its Call of Duty game franchise. It all started with the company attempting to first take down Reddit posts that showed leaked cover art for Call of Duty: Warzone, before Activision then attempted to have Reddit unmask the poster of the image in an attempt to track down where the leak came from. While Activision certainly isn't the first company that has attempted to bury leaks using DMCA notices, it was a fairly high profile attempt, which, of course, just meant that the Streisand Effect took over and suddenly tons of people were seeing the image in media outlets reporting on the matter, such as at Techdirt.One would think the lesson learned from that episode would be that trying to unboil an egg like this through the DMCA process was futile. Instead, it seems that Activision thought the lesson was that it should go after media outlets. Recently, content for an upcoming map addition to Warzone leaked and VideoGamesChronicle (VGC) reported on it.

VGC can confirm that the work-in-progress live-action spot, which was first shared by Twitter account On Thin Ice, is authentic and shows snippets of the new 1980s Warzone map which we understand will replace the current Verdansk at the end of the season, with an in-game event marking the transition on April 22.It appears that the new map will be an evolution of Verdansk, rather than an entirely new design. The leaked footage shows Cold War-era landmarks replacing Verdansk’s own points of interest, including an in-construction Stadium and an aqueduct replacing the Dam. Airport, TV Station and Downtown can also be spotted with a 1980s makeover.
So, content leaks, VGC reports on it. That's about as straight a journalistic enterprise as there can be. And, yet, Activision went into its DMCA takedown mode, targeting not only the original leaked footage of the new map, but also the sites and social media accounts for outlets reporting on it.
While there's been no official confirmation from Activision, the publisher has been cracking down on the leak: at least one video has been taken down from YouTube, and news site Charlie Intel says it has received a DMCA notice from Activision.
And the Twitter account for VGC itself was targeted and locked due to Activision's actions.
It is one thing to target leaked footage itself. It's entirely another to get hosts and platforms to take down journalistic content over that same leak. Once the genie is out of the bottle, to compound metaphors, it is flatly an abuse of the DMCA to target speech protected by the First Amendment over it.And beyond that admittedly major component... what precisely is the point of all this? Once again we have a situation where Activision is supercharging the public's knowledge of a leak it supposedly wants to suppress with actions that, at best, aren't proper and at worst make it look like a massive corporate bully. Perhaps some will believe that this is some sort of marketing ploy and that Activision's real goal with all of this is to get posts like this written.But between Activision's past behavior and Occam's Razor... I think not.

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posted at: 12:00am on 07-Apr-2021
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DC Appeals Court Affirms Sidelining Of Attorney Larry Klayman, Who Attempted To Litigate Both Sides On Multiple Occasions

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Larry Klayman is a famous lawyer. Perhaps more infamous than famous at this point, but he's a lawyer in every jurisdiction he hasn't been sanctioned in yet. But fear not! Klayman will get disciplined wherever possible, if only to own the libs.Own the libs, he may. But federal courts refused to be owned. And Klayman -- who I will freely admit was at least willing to mount a solid challenge to NSA surveillance -- will apparently have a bit more free time to tend to his herd of free-range libs (whom he apparently owns)… at least according to those willing to continue supporting his urge to blog post through it.The DC Circuit Court of Appeals, on the other hand, does not care how many libs Klayman has owned through stunt litigation. Instead, it has expressed its displeasure as courts often do by imposing limits on Klayman's litigational escapades.So, how owned are the libs? Let's ask the court [PDF]. (via Reason)

Suspended for ninety days by the District of Columbia Court of Appeals, Larry Klayman, a member of this court’s bar, seeks to avoid reciprocal discipline.
Bingo and/or bango:
For the reasons set forth below, we impose a reciprocal ninety-day suspension and refer this matter to the Committee on Admissions and Grievances for recommendations on whether further discipline is warranted.
[waits for laughter to die down]How did Klayman manage to get this smacked down by a federal court? Let us count the ways. And by "the ways," I mean "holy shit, bro, what even the fuck."A brief history: Larry Klayman founded Judicial Watch in 1994. Since then, he has engaged in plenty of litigation, not all of it misguided. When not defending people who don't have legitimate grievances, Klayman has also engaged in FOIA litigation and challenges of domestic surveillance. He's not a totally useless lawyer. But he's become more useless thanks to a Trump presidency and a rabid "conservative" base that has encouraged all of his worst instincts.But this case has nothing to do with his political leanings or his inability to choose clients worthy of representation. The courts have cautioned Klayman before about switching sides when criticized by clients for his ineffective representation. In 2013, the DC Circuit handled a complaint against Klayman brought against him by a former director of Judicial Watch, who accused him of contributing to a "hostile work environment."After this, Klayman left Judicial Watch and struck out on his own. Then he decided to approach the court, informing it he was now representing the person who accused him of creating a "hostile work environment" and asked the court to vacate its dismissal of the former director's lawsuit.Then he decided to insert himself into another court case -- again, without the plaintiff's approval. Louise Benson sued Judicial Watch and Klayman after her $15,000 donation towards the purchase of building was swallowed by Judicial Watch and no building was ever secured. Klayman decided to call himself "co-counsel," and entered the case without the permission of the court or his former employer, Judicial Watch.Finally, Klayman represented Peter Paul in a case involving campaign fundraising via Judicial Watch. After Klayman left Judicial Watch, the organization decided to stop representing Peter Paul. But that didn't stop Klayman, who decided he could continue to represent Paul, even without the permission of his former employer, Judicial Watch.This string of events ended with Klayman being suspended by the DC Circuit for ninety days. The court also ordered Klayman to attend a legal education class on conflicts of interest.Klayman appealed, apparently suggesting the court system should allow him to continue to engage in conflicts of interest and haphazard "representation" of clients who made no effort to secure his "help."The Appeals Court disagrees. There's nothing in Klayman's arguments that demand a reversal of any disciplinary steps taken against him.
This argument is entirely without merit. Even though Mr. Klayman owed a duty of zealous representation to Cobas, Benson, and Paul, Rule 1.9 is absolute. Absent informed consent from Judicial Watch, Mr. Klayman may not “represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of” Judicial Watch. As Judge Lamberth put it, “Rule 1.9 provides no exception to its prohibition on successive representation.”Next, Mr. Klayman quotes at length from a portion of the Rotunda letter that relies heavily on the Supreme Court’s decision in Maples v. Thomas, 565 U.S. 266 (2012). There, the Court concluded that counsel’s failure to properly withdraw from representation of a death row inmate excused the inmate’s failure to meet a crucial filing deadline because counsel’s effective abandonment was an “extraordinary circumstance.” See Maples, 565 U.S. at 289. From this, Rotunda concludes that “it [was] reasonable and understandable that Mr. Klayman believed that he had an ethical obligation . . . to zealously and diligently represent” Cobas, Benson, and Paul. Br. 7 (internal quotation marks omitted). Maples, however, has nothing whatsoever to do with this case, as the lawyers involved there were not representing a client whose interests were adverse to a former client. Maples is about client abandonment, not switching sides.
A house divided against itself by an interloping legal "representative" cannot stand.
Mr. Klayman’s remaining arguments are equally without merit. He invokes the doctrine of laches but fails to cite a case from either this circuit or the D.C. Court of Appeals that applies laches to disciplinary proceedings, nor are we aware of one.
This is not the sort of thing you want to hear from a federal court… unless you've convinced yourself this is a compliment.
In a self-styled “Supplement to Respondent’s Initial Brief,” filed just after oral argument, Mr. Klayman told us that “[t]he reason that he did not immediately inform” this court of his suspension “was because” his petitions for rehearing and rehearing en banc of his suspension “were pending [in the D.C. Court of Appeals] at the time and Mr. Klayman believed that he would be successful in obtaining a favorable ruling.” [...] This is an astonishing argument.
Enjoy the pejorative, Larry.The suspension survives Klayman's "astonishing" attempt to overturn it. Trying to play both sides of lawsuit never plays well in court, no matter what court system level this tactic is deployed in. Klayman is relegated to sidelines in the DC Circuit, a place he has historically done a great deal of business.


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posted at: 12:00am on 07-Apr-2021
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Devin Nunes Loses Yet Another One Of His SLAPP Suits

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A little over a year ago, a DC watchdog group had asked the Office of Congressional Ethics to investigate Rep. Devin Nunes over his total failure to disclose who the hell is paying for all of his various frivolous SLAPP suits. As the group, Campaign Legal Center noted, Congress is forbidden from receiving free legal services unless they have set up a Legal Expense Fund -- and at least at the time of the investigation request, Nunes had not done so, despite having filed a bunch of lawsuits over the previous year.As far as I can tell, nothing ever happened regarding that, but the issue is again worth exploring. Devin Nunes has been losing his lawsuits (badly) but continuing to push on with them anyway. In the fall of 2019, Nunes sued Fusion GPS and Glenn Simpson claiming racketeering (It's Not RICO, Dammit), because (he bizarrely claimed) they were harassing Nunes by filing a different ethics complaint against him. Nunes had some silly story about how Fusion GPS was trying to "interfere" with his "investigation." The "investigation" being Nunes' laughable attempt to argue that the Steele Dossier was illegal.Anyway, a year ago that case was easiliy dismissed with the court warning Nunes' lawyer Steven Biss that, while he could refile, if they didn't add more substance to the complaint, they may face Rule 11 sanctions. In a move that will surprise no one, Biss/Nunes still filed an amended complaint last April. Now the case has been dismissed again. For reasons that I'm not clear on, over the summer the case was reassigned to a different judge, and that's why the new dismissal is from Judge Rossie Alston, rather than Judge Liam O'Grady, who handled the first dismissal.The judge does the basic "It's Not RICO, Dammit" analysis to highlight that the Nunes/Biss claims of racketeering are ridiculous:

Here,Plaintiff fails to plausibly plead an association-in-fact enterprise because the Second AmendedComplaint does not sufficiently allege the three structural features critical to support a RICOenterprise allegation. Both the Second Amended Complaint and Plaintiff's Opposition merelyrecite the elements of an association-in-fact enterprise and allege only conclusory facts.Critically, no reading of the facts alleged in Plaintiff's Second Amended complaint cansupport a finding that an enterprise operated with the purpose or relationships the law requires.... Instead, the Second Amended Complaint is best read toallege that Defendants and the three other individuals and entities named in that document engagedin independent, parallel conduct directed at Plaintiff Nunes. By Plaintiff's own telling, the entitiesand persons involved had different memberships and methodseven assuming they all shared thesame generalized motive to harm Plaintiff's political career. On its face, this is insufficientevidence of an association-in-fact enterprise with a shared purpose.... The only connection Plaintiff alleges between Defendants and Campaign for Accountability,McClatchy, and Mair is that Defendants chose CfA, Mair and McClatchy as fronts or 'cut-outs'to carry out the obstruction scheme.... These rote allegations that Defendants operatedand conducted the business of the enterprise are unsupported by any specific facts. At best,Plaintiff alleges consciously parallel conduct, which is not sufficient to satisfy Twombly'spleading standard[.]
There's a lot more, but this is the same reason the original complaint got tossed out. The judge also notes that the basis of Nunes' RICO claim is that... people filed an ethics complaint against him. The judge appears to raise his eyebrows at this concept:
Before analyzing the specific predicate acts, the Court acknowledges that Plaintiff's caserests on importing a wholly novel set of factsethics complaints submitted against a sittingcongressperson and providing research on that lawmaker to a news outlet for publicationinto thecivil RICO context.
Over and over and over again, the court finds that Biss just made a bunch of unsubstantiated claims that can't possibly be RICO. And thus, in the end:
All told, Plaintiff has failed to establish that the facts set forth in his Second AmendedComplaint add up to form a single RICO predicate act. The Court reaches this conclusion havingconsidered, as it must when deciding a motion to dismiss, the facts alleged in the light mostfavorable to Plaintiff
Given that Judge O'Grady had already warned Biss and Nunes that filing more of this nonsense may lead to Rule 11 sanctions, perhaps you'd expect Judge Alston to follow through on that threat. Unfortunately, as is all too often the case, the judge has decided to go easy on Biss (despite the fact that he keeps filing so many sketchy lawsuits). The defendants in the case even highlighted to the judge Biss' and Nunes' track record of filing all these bogus SLAPP suits. And, even so, the court lets them off the hook:
The Court declines to impose sanctions under Rule 11 at this time. The allegations madeby Plaintiff are serious. They just cannot and do not confer authority to this Court to address thecomplaints Plaintiff has made. In this regard, Plaintiff's counsel is reminded that litigationasserted in bad faith or for the purpose of harassment may be met with sanctions. ... Here, Plaintiff's counsel has filed threecomplaints in this case since September of 2019. The Court has not issued a favorable ruling onany of the claims Plaintiff asserts. Accordingly, the Court's dismissal of Plaintiff's RICO claimsis with prejudice and without leave to amend because in the Court's view, amendment would befutile
So... why no sanctions? No further explanation is given. This is, unfortunately, par for the course. As we've seen over and over and over again, lawyers tend to have to have a reputation for filing dozens of these kinds of bogus lawsuits before courts finally start issuing sanctions.So, no, Devin, it's not RICO, and you and Biss got off lucky (again!) this time, even though you still lost, like you've lost all of these lawsuits. And many of us are still wondering, who is paying for all of this wasteful, vexatious litigation?

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posted at: 12:00am on 06-Apr-2021
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Microsoft/Xbox Pushing Backwards Compatibility Hard, With Specific Nods Towards Game Preservation

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If it seems like the topic of preserving antiquated video games as art keeps coming up, that's because it's very much starting to become a popular topic in the gaming industry and among the gaming public. The headwinds facing the proper preservation of this ever-growing subsect of culture are fairly clear. The very tools that have been used by fans to keep these older games alive and playable have too often been viewed as a threat to some gaming companies. As with all things in life, copyright is also getting in the way, as are some industry groups coming out against vile threats like museums and curation groups looking to keep old games alive for the public. Even preserving old game manuals is a prospect that only survives because of fair use.One recent suggestion we discussed was to make it part of the the game development culture to publish the source code for any PC game publicly. If this sounds like a bonkers idea that would risk a game developer all of its income, well, Doom did this, so no you're wrong. But, as we also discussed recently when Sony officially announced it was ceasing support of the PlayStation Store for PSP, Vita, and PS3 owners, this suggested cure does zero for console games.Well, I can't say for sure that whoever is crafting PR and messaging for Microsoft's Xbox is a Techdirt reader, but you sure might think so if you see how they're crafting the messaging around their big backwards-compatibility push.

Backward compatibility has been a key feature of Microsoft’s Xbox Series X/S marketing efforts, with the company promoting the consoles’ ability to play a wide range of original Xbox, Xbox 360 and Xbox One games.  And on Tuesday, Microsoft brought backward compatible titles to Xbox cloud gaming for the first time by making a number of classic games from Rare, Bethesda and others available to Android users with an Xbox Game Pass Ultimate subscription.“As time goes on, it becomes more important than ever that we ensure gaming icons and classics are preserved for new and old players alike,” the official Xbox Twitter account posted on Wednesday.  “Whether your first time playing Morrowind is from 2002 on your Xbox or 2021 on your phone, we’re excited to share these experiences with you!”
Two immediate thoughts leap to mind reading this. First, to be completely realistic, this isn't a full solution to the problem of console game preservation, either. One console keeping older games from a handful of developers available by continuing to sell them on modern hardware and platforms is not in any way the same thing as making sure that curators or museums that focus on the art of video games can do the work they should be doing. But it is also certainly a step in the right direction and shows a path where developers and publishers, if they elect to put forth the effort, can work with other platforms and providers to keep aging games available and playable. It's a baby step, but it's a step.But the more important aspect of this is that the chatter about game preservation is clearly building into the lexicon of the industry. When you get the Xbox Twitter account talking about it, well, it means some people within the industry are paying attention to it. And it wasn't just one Xbox Twitter account getting this message out there.
In an Xbox Wire interview this week, Rare studio head Craig Duncan said backward compatibility is playing an “essential” role in preserving video game history.“There are just a bunch of inherent complexities when generations and platforms change and being able to relive games you played previously and fondly remember is important,” he said. "Those games contain memories and moments you can share with others and being able to do that quickly by just selecting the game in Xbox Game Pass is easy and just works with no fuss. The alternative is firing up an older console, finding all the cables, and preserving the discs so they still work (which some collectors do as a passionate hobby),” Duncan continued. “Making the history of games available to everyone and making your game library a click away is awesome.”
Right on message, almost as though this were part of a messaging campaign at the worst, or the output of a philosophy from Microsoft at best. Either would be a step in the right direction.Again, is this Microsoft committing to help preserve games in the museum sense? Not at all. But keeping older games available and playable is the primary goal here and any help the company wants to be to make sure this culture and art aren't lost to time is welcome.

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posted at: 12:00am on 06-Apr-2021
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US Press Continues To Pretend The 'Digital Divide' Just Mysteriously Appeared One Day

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So if you've read Techdirt for any amount of time, you should be pretty well clued in to the fact that US telecom is a heavily monopolized, feebly regulated mess. Regional cable giants like Comcast and Charter absolutely dominate the market, resulting in 83 million Americans being stuck under a monopoly (see this ILSR report). The result of regional monopolization and captured, feckless regulators is obvious and has been for a good thirty years: high prices, comically bad customer service, spotty coverage, and slow speeds. It's not really a debate, though some telecom-allied policy folks like to pretend otherwise.Yet every time broadband and the digital divide is trending in headlines, the cause of US broadband dysfunction simply isn't mentioned. For example, as the Biden administration released its new broadband plan this week, numerous news outlets once again dipped their toe into trying to cover the digital divide. And time after time after time, news outlets explain that the digital divide exists, but they somehow never inform readers why. When the subject is covered it's just some thing that appeared one day, like Godzilla out of the ocean.Over at USA Today, for example, the problem was framed like this:

"About 30 million Americans do not have access to broadband, according to the Federal Communications Commission. But another report puts that at about 42 million. And about 12 million students are impacted by the digital divide, according to a report from Common Sense, Boston Consulting Group and the Southern Education Foundation."
Technically, the number of folks without access to any broadband is closer to 42 million, but whatever. But heavily monopolized broadband access isn't just some thing that popped up one day. It's the direct result of 40 straight years of US policy that prioritized the interests of entrenched giants like AT&T and Comcast at nearly every opportunity. But reading outlets like USA Today, a reader would never know that.On any given day, go peruse the broadband related news feed and try to find an article that clearly shows readers that telecom monopolies and state and federal corruption are the primary cause of America's mediocre showing in nearly every broadband metric that matters. You'll be hard pressed to find any. Even when outlets like the New York Times publish good articles clearly demonstrating the real world impact of substandard broadband, the problem is presented as something completely detached from any real world causality:
"Longtime advocates of universal broadband say the plan, which requires congressional approval, may finally come close to fixing the digital divide, a stubborn problem first identified and named by regulators during the Clinton administration. The plight of unconnected students during the pandemic added urgency."
Why does America have some of the most expensive broadband in the developed world? Why does the digital divide persist despite the fact we've thrown billions upon billions at the problem? Why do kids in the wealthiest country in the history of the planet have to huddle outside of Taco Bell to attend school during COVID? Why is the United States utterly mediocre in nearly every meaningful broadband metric that matters after decades of this shit? Hint: it's not because the US is big or because stringing fiber is all that hard (though both do make fixing the problem moderately more difficult).As somebody who's covered the sector for twenty years, the answer is monopolization and corruption. Telecom monopolies literally ghost write terrible state and federal laws that hamstring competition. And because these already politically powerful giants are effectively tethered to our intelligence and first responder communities, they rarely see much in the way of genuine accountability. Again, this isn't a debate or some errant opinion; there's fifty years of concrete data that clearly make this point. Corruption and monopolization are the primary reasons US broadband is painfully mediocre.This is a choice the US is making and has made for generations. The data are clear. But instead of working furiously to weaken the policy and political stranglehold of companies like Comcast, Charter, Verizon, and AT&T, the US "solution" has been to blindly rubber stamp competition and job eroding megamergers, throw unaccountable billions at monopolies (often in exchange for absolutely nothing), and effectively lobotomize the regulators in charge of making sure the telecom sector functions properly. All under some alt-reality claim this would "restore internet freedom." It's madness and idiocy.You can't fix a problem you're incapable of even acknowledging. And it's pretty clear most media outlets, stuck under a "both sides" or "view from nowhere" paradigm easily exploited by industry, lack the courage to call a duck a duck. And when the press can't be bothered to frame the problem correctly with essential context, policymakers not only feel far less urgency to do much about it, but the public winds up usually blaming the wrong people. You'd like to think that the press figures this out someday, but it's abundantly clear it's not going to be anytime soon.

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posted at: 11:18am on 05-Apr-2021
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This Week In Techdirt History: March 28th - April 3rd

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Five Years AgoThis week in 2016, while forensic experts were exploring the DOJ's recently announced ability to get into Sayed Farook's iPhone, the DOJ was saying that it only applies to that specific model and sticking by its request for Apple to help it with other devices — all while refusing to tell Apple how it did it. Meanwhile, the Copyright Office was seeking comments on the DMCA notice and takedown provisions, and given the huge problems and spate of automated takedowns, we obviously had some thoughts to submit.Ten Years AgoThis week in 2011, we were debunking the claim that bad things happen when works fall into the public domain, writing about how greater IP enforcement doesn't work, and pointing out how sometimes it's best to just let people copy. Another judge rejected the idea that the DMCA requires a proactive approach from service providers, while it turned out that a judge who gave approval to the lumping together of multiple unrelated copyright claims was a former RIAA lobbyist. This was also the week that we saw a very worrying ruling on fair use (which would later be overturned in an important appeals court decision that has recently become very relevant again) when a judge said Richard Prince's appropriation art is infringing.Fifteen Years AgoThis week in 2006, a new German law was set to give casual file sharers significant jailtime, while TorrentSpy was fighting the MPAA's attempts to reinterpret the Supreme Court's opinions on file sharing. The DRM makers were getting ever more elaborate even as more and more people were pointing out that copy protection doesn't work. YouTube was seeking to shake its reputation as a piracy haven with legit partnerships, and a ten-minute video limit that is hard to imagine today. This was also the week that Apple's lawyers, in their trademark fight with the record company of the same name, brought out the now-famous "moron in a hurry" test.

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posted at: 12:01am on 04-Apr-2021
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Content Moderation Case Study: Twitter Briefly Bans Russian Parody Accounts (2016)

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Summary: Twitter allows parody accounts to remain live (often over the protests of those parodied), provided they follow a narrow set of rules -- rules apparently intended to make sure everyone's in on the joke.Here's everything Twitter users agree to do when creating a parody account:

  • Bio: The bio should clearly indicate that the user is not affiliated with the subject of the account. Non-affiliation can be indicated by incorporating, for example, words such as (but not limited to) "parody," "fake," "fan," or "commentary. Non-affiliation should be stated in a way that can be understood by the intended audience.
  • Account name: The account name (note: this is separate from the username, or @handle) should clearly indicate that the user is not affiliated with the subject of the account. Non-affiliation can be indicated by incorporating, for example, words such as (but not limited to) "parody," "fake," "fan," or "commentary. Non-affiliation should be stated in a way that can be understood by the intended audience.
Unfortunately for the very popular Vladimir Putin parody account (@DarthPutinKGB), Twitter's moderators decided the account didn't strictly adhere to the "make it obvious" policies covering accounts like these.
In May 2016, Twitter suspended the account for its alleged violations.This ban immediately resulted in backlash from other Twitter users who were fans of the account -- one that made it clear (albeit without all the specifics demanded by Twitter) that it was a parody. Disappointed fans included Estonian president Toomas Hendrik and Radio Free Europe, which published a collection of the account's best tweets.While the ban was technically justified by the violation of the specifics of Twitter's rules, the end result was a lot of Twitter users wondering whether Twitter moderators were capable of recognizing obvious parody without accounts bios copying the platform's parody guidelines word-for-word.Decisions to be made by Twitter:
  • Is the banning of harmless parody accounts an acceptable tradeoff for protecting users from impersonation?
  • Should the parody guidelines be altered to make it easier to identify parody accounts?
  • Should moderators be allowed to make judgment calls if an account is clearly a parody but does not strictly adhere to the parody account guidelines?
Questions and policy implications to consider:
  • Should Twitter use more caution when moderating parody accounts whose parodic nature isn't immediately clear?
  • Is impersonation too much of a problem on the platform to ever relax the standards governing this kind of humor?
Resolution: Twitter swiftly reinstated the account following the backlash. The account remains active, despite its new bio not explicitly following the Twitter Rules for parody accounts.But it wasn't the first time Twitter moderated accounts parodying Russian government officials. A similar thing happened roughly a year earlier, when Twitter blocked an account parodying powerful Russian oil executive Igor Sechin, apparently in response to a Russian government complaint the satirical account "violated privacy laws." This happened despite the fact the user's handle was IgorSechinEvilTwin, making it clear it was a parody, rather than an attempt to impersonate the real Igor Sechin.
Originally published on the Trust & Safety Foundation website.

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posted at: 12:00am on 03-Apr-2021
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Sony Ends Support For Playstation Store For PSP, PS3, and Vita

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A few days ago, we discussed the problem of video game preservation as a matter of art when developers, publishers, or platforms shut down certain services. The point of the post was fairly wide-reaching, with the focus being on the idea that game developers in the PC space should embrace the habit of releasing their source codes for games and let the gamer ecosystem take over. While that's an idea I find extremely interesting, it doesn't really apply to the console gaming space. And it was rumors of the shutdown of certain Sony PlayStation stores that kickstarted the whole conversation.Well, that rumored shutdown is now reality. And it's roughly half as bad for the purposes of game preservation as was expected.

Today, Sony updated the important notice section of its official site with information about the upcoming shutdowns. While the stores will be closed later in the year, Sony explained that players will still be able to redownload content that they own after the shutdown date. Folks will also still be able to redeem PS Plus and game vouchers, though wallet vouchers will no longer work on these stores after they close.
So, that's the top line summary of what's changing, with the headline being that people will still be able to re-download games that they had previously purchased. That's obviously a good thing. But where we dive right back into the preservation question is here.
You will no longer be able to purchase PS3, PS Vita, and PSP digital content, including games and video content.You will no longer be able to make in-game purchases through games on PS3, PS Vita, and PSP.
So new purchases are not available for games. Whether said games will be made available anywhere else is an open question. As is the question of in-app purchases or DLC. Given that those are going away, the next question is what is being done to preserve the games and their source codes? No answers currently exist. And, if you believe that video games are a form of art and culture, that's very much a problem.Put yourself in the shoes of a preservationist or museum for video games. What in the world happens to this culture from here? Where does the DLC go, given that it's very much a part of the art of the game? Where does the source code go? How will someone 25 years from now be able to experience this art in the same way you can walk into an art museum and see an exhibit.As of today, the answer to most of those questions most of the time is ¯\_()_/¯. But that can't be the answer and it's probably time that either the industry or, if the industry fails to take this seriously, the government take a good long look at carving out some exceptions or requirements to make sure all this culture doesn't end up memory-holed.

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posted at: 12:00am on 03-Apr-2021
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Sega DMCAs SteamDB Despite That Site Not Hosting Any Pirated Material

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Sega has something of a flip-floppy history when it comes to how restrictive the company chooses to be with intellectual property generally and DMCA takedowns more specifically. The company notably went DMCA happy back in 2012, for instance, over a bunch of fan videos on YouTube for Shining Force, all because it had a planned release for a PSP version of the title. In 2013, the company actually half-apologized for doing so, promising to be more lenient with what it allows, though there were caveats expressed as well. Fast forward to 2016 and Sega quite gleefully poked some fun at its rival, Nintendo, for its DMCA blitzes, instead encouraging fans to make and create cool and fun stuff with some of its IP.Well, here we are in 2021, and Sega once again is in the news, in this case for a DMCA takedown sent to the SteamDB site.

As SteamDB creator Pavel Djundik shared on Twitter Monday, Sega's lawyers asked that the site and its host take down a page for Yakuza: Like a Dragon. The takedown request alleges that SteamDB is distributing or linking to pirated copies of the game, even though a quick glance at an archived version shows that's not true.That page, like every other on SteamDB, simply compiles historical data on pricing, concurrent players, and other statistics from Steam's own API and public store pages. While there is a link to install the game near the top, that link directs users to Steam itself, which will attempt to install a legitimate copy if the user owns it.
Just so everyone is clear, SteamDB has literally nothing to do with piracy of games. Instead, SteamDB compiles a ton of interesting statistics about games on Valve's Steam platform. Oh, and SteamDB also pushes visitors looking at game statistics to the totally legit place to buy them on Steam. Unfortunately, due to the either automated way some publishers police piracy of their games, or due to an ill-informed legal team tasked with issuing DMCA notices, SteamDB gets the occasional DMCA takedown request. It's yet another example of how hard policing this sort of thing is, where the actual publishers of these games are doing a ready-fire-aim DMCA approach. In this case, the SteamDB page for Yakuza: Like a Dragon was taken down, though it appears that was rectified afterwards.
Sega has provided the following statement to Ars Technica: "Earlier this week, one of our games was incorrectly flagged on SteamDB. We utilize anti-piracy software to protect our games at a large scale, but sometimes it makes mistakes. Sega will continue to fine-tune these systems to avoid this in the future and we appreciate SteamDB cooperating with us to resolve the issue quickly."
It's not terrible as far as apologies go for this sort of thing, but there is something unfulfilling about a message of: "Hey, you were collateral damage, too bad, so sad." Mistakes like this aren't world-ending, certainly, but they are a nuisance for innocent parties to endure simply because policing copyright infringement at scale is apparently an impossible task.

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posted at: 12:00am on 02-Apr-2021
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New York City Council Passes Police Reforms That Includes Ending Qualified Immunity For NYPD Officers

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Qualified immunity is pure judicial cancer. This fact cannot be ignored. What began as a limited defense for decisions made in the heat of the moment has become the de facto response to civil rights lawsuits. The Supreme Court -- which conjured this new Section 1983 ejection seat out of thin air -- has only made it worse over the past few decades.Qualified immunity is more bulletproof than the Kevlar vests worn by those who summon its protections most frequently. Efforts have been made to dial this back, but so far, we've yet to see them come to fruition.Attempts to remove qualified immunity have faced massive amounts of opposition from some of the most powerful entities in the United States: law enforcement agencies and their unions. Despite this, efforts continue to be made to rein in something that has pretty much become a permission slip for rights violations.The good news (via MagentaRocks) is that one ongoing effort to end immunity targets the largest law enforcement agency in the nation: the New York City Police Department. This package of reforms offers up some other useful changes, like requiring NYPD officers to live in the city and mandating quarterly reports on vehicle stops, broken down by ethnicity, race, and age. It also would strip the police commissioner of final say on cases recommended for discipline by the Civilian Complaint Review Board. This would prevent CCRB recommendations from being overturned by the NYPD, something that has happened with alarming frequency in the past.But here's the big news: the end of qualified immunity for NYPD officers.

Sponsored by Brooklyn Councilman Stephen Levin, Intro. 2220-A ends qualified immunity for police officers, which gives officers an exemption for civil lawsuits unless proven by the plaintiff that the officer’s action directly violated civil rights.The council’s legislation gives “a local right of security against unreasonable search and seizure,” in addition to excessive force.
Of course, this would be limited to cases handled solely by New York City courts. Federal civil rights lawsuits wouldn't be affected by this removal. Nor would cases handled by state courts. So, it will only affect a small number of lawsuits pursued entirely within the city's court system.Since city lawmakers are limited to crafting laws that affect the city, this is the best they can do. It's better than doing nothing and it will help, even if it's severely limited. And the bill still needs to be signed by Mayor Bill de Blasio, who has offered his support for some police reforms, but hasn't exactly shown he's willing to take on the NYPD during his tenure in office.It's a very small (but positive) change. But as small as it is, it's not small enough to keep the city's law enforcement unions from complaining about it.
The city’s police unions have vocally opposed the bill, saying ending qualified immunity could have a chilling effect on officer’s willingness to insert themselves into complex and dangerous situations to enforce the law.
I don't think that's true. Good officers will still insert themselves into these situations. Officers who like to play fast and loose with rights and civil liberties may choose to sit some of these situations out. Qualified immunity hasn't given us better, smarter cops. It has encouraged abusive behavior by giving officers a litigation escape hatch -- one that's rarely denied by courts.

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posted at: 12:00am on 02-Apr-2021
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Content Moderation Case Study: Automated Copyright Takedown Bot Goes Haywire (2018)

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Summary: For years, Google and YouTube have included a trusted flagger program by which certain entities that have shown they are particularly effective at notifying YouTube of content violations are given more powerful tools with which to do so.This is used often in the copyright context, and companies with a good history may be given access to things like bulk flagging tools and priority review of flagged content. One such trusted flagger for copyright was a company called Topple Track, which offered an automated service for musicians, searching the internet for infringing works and dashing off automated DMCA notices.In May of 2015, digital music distribution company Symphonic purchased Topple Track, but appeared to keep the service running under its own brand.

In the summer of 2018, some people noticed that Topple Track's automated DMCA notices appeared to go a bit haywire, sending DMCA notices for all kinds of perfectly legitimate content. Among those targeted with DMCA notices were the Electronic Frontier Foundation (EFF), the American Bar Association, NYU's Law Review, the Crunchbase article about the company MP3Tunes and many, many more -- including many artists' own web stores. EFF's summary of the wild takedowns gives a sample
Among others, these notices improperly target:Other targets include an article about the DMCA in the NYU Law Review, an NBC News article about anti-virus scams, a Variety article about the Drake-Pusha T feud, and the lyrics to 'Happier' at Ed Sheeran's official website. It goes on and on.
EFF published an article about this and noted that it seemed as yet another example of an automated DMCA reporting bot running amok. The group also questioned why such a company was in Google's trusted flagger program.Decisions to be made by Google / YouTube:
  • What qualifications are there for a partner to be considered a trusted flagger?
  • How often are trusted flaggers reviewed to make sure they still belong in the program?
  • What does it take to get a trusted flagger removed from the program?
Questions and policy implications to consider:
  • With more emphasis on the speed of removals, it is often tempting for regulators to promote trusted flagging or priority accounts that are able to get content removed at a much quicker pace. What are the benefits and risks of such programs?
  • Automated flagging and now AI/Machine Learning flagging are increasingly a part of the content moderation landscape. How are they calibrated? How frequently are they reviewed?
  • What should the response be when an automated bot is flagging many accounts mistakenly?
Resolution: After the EFF published its article about Topple Track, the parent company Symphonic Distribution apologized to the organization, saying: bugs within the system that resulted in many whitelisted domains receiving these notices unintentionally. As EFF pointed out in response, this seemed difficult to believe, seeing as the problem was not simply a mistake in domains that shouldn't have been scanned, but simply claiming stuff that had nothing to do with the underlying copyright-covered material.A few weeks after the article, YouTube also told EFF that Topple Track had been removed from its Trusted Flagger program, due to a pattern of problematic notices. Some time after this, Topple Track, as a unique organization appeared to disappear, and the service and technology have apparently been subsumed into Symphonic Distribution's catalog of services.Originally published on the Trust & Safety Foundation website.

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posted at: 12:00am on 01-Apr-2021
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Months After Violent NYPD Responses To Protests Resulted In Hundreds Of Complaints, Only Two Officers Are Facing Serious Discipline

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The repeal of a law that shielded New York police misconduct records from public view has prompted a delayed deluge of records -- one temporarily slowed by the expected litigation from police and police reps who wished to put this transparency genie back in the bottle.The records confirmed what has always been suspected: the NYPD doesn't like to discipline its officers and the Civilian Complaint Review Board is pretty much powerless when it comes to police accountability. ProPublica -- one of the early publishers of NYPD misconduct records -- has obtained more information from the CCRB. This batch of info -- aided by the CCRB's own publication of misconduct data -- shows it hasn't done much to handle the influx of complaints following the NYPD's response to a number of Black Lives Matter protests.

Nine months after racial justice protests swept across New York City and videos showed police punching, kicking and trapping demonstrators, the city agency responsible for investigating abuses has revealed the number of officers who have so far faced serious disciplinary charges.Two.The Civilian Complaint Review Board released the figures on Tuesday after ProPublica reported that the CCRB was declining to disclose how much progress it had made on protest cases. The new numbers show about 60% of the agency’s 297 protest-related cases are still open.
A lot of this is not the CCRB's fault. It takes a long time to complete investigations -- an average of eight months according to CCRB data. Things could be expedited, but it would take cooperation from the NYPD. That's something the CCRB has never experienced.
Despite its legal obligations, the NYPD has been withholding significant evidence and undermining investigations of alleged abuse. It has stopped sharing a wide variety of paper records and has been redacting the names of potential witnesses from others without explanation. For two months this year, it allowed officers to refuse to be interviewed by CCRB investigators. And, critically, it often doesn’t produce body-worn camera footage.An internal CCRB memo obtained by ProPublica enumerates roughly a dozen kinds of records withheld or redacted across the board: warrants, arrests records, documents listing who was in station house cells — key for finding witnesses — even officer injury reports.
Body camera footage is essential to substantiating claims. The NYPD knows this. That's why it does everything it can to prevent it from being obtained by its civilian oversight. As ProPublica pointed out in that report, substantiation of allegations more than doubles when investigators have access to recordings.That's what's keeping the CCRB from being effective. And that's how you end up with only two substantiated claims and a majority of investigations still open months after the alleged events.But what can the CCRB do? Not much, apparently. It has no power to compel production. And even if it could compel production of recordings and paperwork, the NYPD could still thwart it by doing what it already does: deliberately avoid creating paper trails.
The CCRB’s statement Wednesday also said investigators have had difficulty identifying officers “due to the Police Department not keeping track of where officers were deployed and due to officers wearing protective gear with incorrect shield numbers.”
It's intentional internal mismanagement. It's a protective shield disguised as incompetence. If the city cared, it could do something about this. But the NYPD runs the city, not vice versa. And it has done so for years with the full support of mayors who have pretty much idolized "New York's Finest," elevating them above the accountability they owe to the people they serve.

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posted at: 12:00am on 01-Apr-2021
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