Just a couple of weeks ago, we discussed a Kickstarter project for an unofficial guidebook to Nintendo's Amiibo product line. While no regular Techdirt reader could have possibly have been surprised that Nintendo issued threats and a DMCA on the project, it was a bit odd for two main reasons. First, Nintendo's main gripe appeared to be the use of some of the corporate iconography and other "design marks" proposed for use in the publication, rather than any wholesale copyright or trademark claim to literally everything in the book. Nuance of that kind is not the norm for the notably litigious and protective Nintendo. Second, this whole fight looked to be something of Nintendo shooting itself in the foot, as the project is essentially one giant advertisement for Amiibo products. Why in the world, we wondered at the time, would Nintendo not want such a book to be released to the public?Well, it seems that perhaps the company does in fact understand all of this. Reports now indicate that the author of the project and Nintendo have resolved all issues the company had and the book will in fact get its release as an "unofficial" guidebook.
The webpage for the Kickstarter project led by Paul Murphy and Ninty Media that was previously entangled in a legal dispute with Nintendo has finally been reinstated. Murphy sent an e-mail to backers of the project, explaining that Nintendo had taken issue with the use of copyrighted materials. While there was some uncertainty about whether the project which had raised over £36,000 GBP would see the light of day, Murphy had reassured backers that they would be refunded if he was forced to halt the project completely.It seems as though fans no longer need to worry, as changes have been made to the project, with the name of the book being transformed into "The Unofficial amiibook", so as to prevent potential readers from confusing the fan project with official Nintendo merchandise. Though Murphy stated that he could not go into the specifics of the legal dispute, he confirmed that it was a copyright strike focused on "the use of a design too close to a trademark owned and registered by Nintendo."
Here we need to employ a bit of nuance ourselves as we analyze what this all means to the Techdirt community. On the one hand, it's nice to see Nintendo appear to have worked relatively amicably with the project author so that this project could still get a release at all. Again, Nintendo has a reputation for employing every possible avenue to exert as strict a level of control over all references to its properties as possible. I'll be frank: a week ago I would have told you there is a near-zero chance this project ever sees the light of day. Nintendo appears to have proved me wrong on that. Good on them.On the other hand, does anyone really believe that any changes the author agreed to make at Nintendo's request will have an actual material impact on whether buyers of the book confuse it with some kind of official Nintendo release? Of the roughly 15,000 backers of the Kickstarter project, how many previously thought that Nintendo was now crowdsourcing guidebooks like this?The answer is, for all statistically relevant purposes, "no" and "none." So, sure, it's good that this project is allowed to exist at all, but it sort of sucks that this question ever had to be asked.
Summary: In 2013, two comedians named Jason Selvig and Davram Stiefler, who performed as The Good Liars, got some attention for mocking a particular popular target of mockery: poor service from your broadband provider. For Selvig and Stiefler, their target was Time Warner Cable. In late March of that year, they released a video on YouTube in which they pretended to be Time Warner Cable employees interviewing people on the street about how TWC could make its service even worse.To support the initial viral attention that the video was receiving, the two also set up a series of parody Time Warner Cable customer support accounts that would respond -- just like the real TWC customer support Twitter account -- to people complaining about their service, again asking how they could make things worse.
However, just as the video was getting more momentum, the entire YouTube channel set up by Selvig and Stiefler was taken down, as were most of the fake Twitter accounts, even though they were all clearly labeled as parody accounts, and despite policies that said that parody was allowed on these services.Time Warner Cable, in a statement to the Daily Dot, said that it had no problem with parodies of its service in general, but was opposed to parodies that used the name of its CEO:
We're a big company and so we're not at all opposed to a good parody or satire, Bobby Amirshahi, a TWC representative, told the Daily Dot. The two crossed the line, he said, by choosing Glenn Britt, the company's CEO, as their username. The issue was posting as though it was from the CEO, i.e. impersonation, Amirshahi said. Otherwise, no action would be taken.
TWC also convinced GoDaddy to remove the website that Selvig and Stiefler had used as a central hub for all of its TWC mockery, twcustomerservice.com.Decisions to be made by YouTube/Twitter/GoDaddy:
Where do you draw the line regarding what is acceptable parody and unacceptable impersonation?
Is the use of TWC's CEO enough to make it no longer acceptable?
Should there be different rules when the parody is about a large company rather than an individual?
Questions and policy implications to consider:
Parody and satire are often important ways to speak out against the powerful. Will clamping down on parodies in this manner suppress commentary and criticism?
Can rules against impersonation allow powerful individuals and companies to silence criticism?
Resolution: The various takedowns remained in place, and very little is left online of the Good Liars' campaign to mock Time Warner Cable. There was just one of the Twitter accounts @TWCCareNYC that was not removed and while the account is still live, none of the tweets remain.Time Warner Cable itself no longer exists. Charter Communications bought Time Warner Cable in 2016 and has rebranded most former Time Warner Cable services under its Spectrum brand name.Originally posted to the Trust & Safety Foundation website.
Of all the areas that result in copyright lawsuits that never should have been filed, it surely must be ignorance of the idea/expression dichotomy that is the most common. That link will take you to a litany of posts about copyright fights in which one party sues another over elements of a creative work that are themselves not protectable. The basic explainer goes like this: the specific expression of a work, or even the specific expression of unique thematic or character elements, can be protected by copyright, whereas mere general ideas cannot. This is why Batman is a copyrightable character, but that copyright cannot be used to sue the hell out of anyone that writes a story about an insane rich person who wears a cape and cowl while fighting bad guys. Idea versus expression.It's crazy just how many lawsuits get filed by full grown adult lawyers who don't seem to understand this. One recent example is a lawsuit brought by a high school English teacher against Netflix over the latter's series, Outer Banks. The suit was tossed at the motion to dismiss stage, with the court reasoning that the majority of the 40-plus claims of infringement amount to either non-protectable ideas, or allegations that amount to mere coincidence that has nothing to do with copying anything at all. On the first of those:
In a 25-page opinion, U.S. District Judge Timothy C. Batten Sr. said Kevin Wooten’s 2016 book “Pennywise: The Hunt for Blackbeard’s Treasure!” had a significantly different plot, characterization, mood, pace and settings than the Netflix original.“To be sure, both works involve shipwrecks and treasure hunts,” Batten said. “But to analyze their plots at such a high level of abstraction would render every work involving a hunt for buried treasure susceptible to copyright infringement.”
It's a useful high-level takeaway on the majority of issues with the lawsuit, but it's worth noting that the court did in fact do a deep dive on each of the claims made. Not all of them amount to generic story ideas such as the above. While the actual plotlines and characters are very, very different -- a different number of main characters, different treasures being hunted for by those characters, different outcomes, etc. -- , some of the claims detailed out in the dismissal are downright absurd.
As a preliminary matter, many of Wooten’s purported similarities either do not exist or are “random similarities” that “could be found in very dissimilar works.” Beal, 20 F.3d at 460 (quoting Beal, 806 F. Supp. at 967 n.2). For instance, he argues that “both Works clearly sought to invoke an avian theme at the mausoleum.”  at 14. He points out that in his novel, Nathan and Ben find a clue hidden in the wing of a bird statue at a mausoleum. He argues that this plot device is substantially similar to the protagonists’ discovery in Outer Banks of a clue labeled “For Bird.” But the bird reference in Outer Banks is merely a callback to the nickname John B’s father gave him as a child. The fact that the word “bird” is present in both narratives is entirely innocuous and of no significance in an infringement analysis.
It goes on from there, including where the court looks at the actual main characters of each work, claimed by Wooten to be substantially similar, and concludes:
In sum, the characterization in the novel is in stark contrast to that of the series. The Outer Banks characters are complex, with narratives that cause the viewer to at times sympathize with even the most nefarious individuals. In the novel, on the other hand, the naïve Pennywise twins and their uncle serve as prototypical hero figures while Darwin acts as a classic villain.
Without trying to, the motion to dismiss doubles as something of a literary review, albeit one rather unkind to Wooten's novel.The real point of all of this is that what should be common sense ought also to be better understood among attorneys willing to file copyright lawsuits on behalf of clients: you cannot copyright general ideas, tropes, nor the obvious story elements that grow from either. Treasure hunts are as tropish as they come, frankly, and attempting to silence an entirely unrelated creative work simply because of "avian themes" and the like is nonsensical.
As the open source world has grown, so have concerns about the context in which openly licensed items are used. While these concerns have existed since the beginning of the open source movement, today's larger and more diverse movement has brought new urgency to them. In light of this revived interest within the community, the time may be ripe to begin encouraging experimentation with open source licensing again.How We Got HereWhile the history of open source software is long and varied (and predates the term open source software), for the purposes of this blog post its early evolution was driven by a fairly small group of individuals motivated by a fairly homogeneous set of goals. As the approach became more popular, the community developed a wide range of licenses designed to address a wide range of concerns. This 'First Cambrian Explosion' of open source models and software licenses was a time of experimentation within the community. Licenses varied widely in structure, uptake, and legal enforceability.Eventually, the sprawling nature of this experimentation began to cause problems. The Free Software Foundation's Free Software Definition and the Open Source Initiative's Open Source Definition were both attempts to bring some order to the open source software world.In the specific context of licensing, the Open Source Initiative began approving licenses that met its criteria. Soon thereafter, it released a License Proliferation Report detailing the challenges created by this proliferation of licenses and proposing ways to combat them.These activities helped to bring order and standardization to the world of open source licensing. While OSI continues to approve licenses, for well over a decade the conventional wisdom in the world of open source has been to avoid creating a new license if at all possible. As a result, for most of this century open source software license experimentation has been decidedly out of style.Largely for the reasons described in the License Proliferation Report, this conventional wisdom has been beneficial to the community. License proliferation does create a number of problems. Standardization does help address them. However, in doing so standardization also greatly reduced the amount of license experimentation within the community.Reduced experimentation means that concerns incorporated into approved licenses (access to modifications of openly licensed code) have been canonized, while concerns that had not been integrated into an approved license (restrictions on unethical uses of software) at the moment of formalization were largely excluded from consideration within the open source community.What ChangedWhat has changed since the move towards codification of licenses? The open source software world has gotten a lot bigger. In fact, it has gotten so much bigger that it isn't just the open source software world anymore. Creative Commons - today a towering figure in the world of openness - did not even exist when the Open Source Initiative started approving licenses. Now the open world is open source hardware, and Creative Commons-licensed photos, and open GLAM collections, and open data, and all sorts of other things (this is a whole other blog post). The open source world has moved beyond early debates that questioned the fundamental legitimacy of open source as a concept. Open source has won the argument.An expansion of applications of open source has lead to an expansion of people within open source. Those people are more diverse than the early open source software proponents and are motivated by a wider range of interests. They also bring with them a wider range of concerns, and a wider range of relationships to those concerns, than early open source adopters.What is Happening NowThis broader community does not necessarily share the consensus about how to approach licensing that was developed in an earlier period of open source. They bring a range of viewpoints that did not exist in the earlier days of open source software into the open source community itself. They are also applying open source concepts and licenses to a range of applications that were not front of mind - or in mind at all - during the drafting of today's canonical licenses.Unsatisfied with the consensus rules that have delivered us the existing suite of (incredibly successful) licenses, parts of the community have begun experimenting again. Veteran open source lawyers are rewriting licenses with public understandability in mind. Community members are transforming their interpretation of open source development into licences that invite collaboration without intending to adhere to the open source definition. Some of theselicenses are designed to address concerns traditionally excluded from the scope of open source licenses. I am directly involved in the ml5.js attempt to do just that.The creators of these experiments are responding to a standardized approach to licensing that does not fully accommodate their needs and concerns. In some cases the standardized approach does not accommodate these concerns because the community litigated including them in the past and decided it could or should not be done. However, even in those cases, that debate happened within a very different community in at least somewhat different contexts. The conclusions arrived at then are not necessarily valid for the broader world that open source finds itself inhabiting.In light of that, it may be time to begin encouraging experimentation in open source licensing again. Encourage people to test out new approaches by applying them to real world problems. In some cases, the decisions made in the past will prove to be robust and sustainable. In others, a new debate will reveal the decisions' shortcomings. In both cases, the open source community will be stronger by being tested from within.Coda: Is This Post Just a Lawyer Advocating for Lawyers to Have More Fun?Throw out the old ways of doing things! Try something new! Experiment! Is this just a call for lawyers to have fun by screwing around with exotic licensing concepts at the expense of everyone else's stability (and sanity)?It could be. But I don't really think so. The thing about lawyers (as a group - there are always exceptions) is that novelty and instability makes us nervous. Things that are tried and true will probably work. That means we do not have to worry about them. New things - who knows what will happen to them? That uncertainty makes lawyers nervous.That is part of the reason why lawyers like today's conventional wisdom. The canonical set of open source licenses have more or less worked for decades. It is unlikely that they will explode, and it is even less likely that they will explode in the face of the lawyer who uses them on any given project. In contrast, any lawyer who writes their own license is setting themselves up for a period of anxiety, waiting to discover what they missed or how things will go wrong.Of course, some lawyers do think it is fun to cook up new open licenses. And maybe this post is a call for them to do more of it. But, on balance and as a whole, introducing new licenses into the world of open source will probably cause open source lawyers more anxiety than joy.I think that anxiety is probably worth it. But that will be far from a universally held position.Originally published on Michael Weinberg's blog and repbulished under a CC-BY-SA 4.0 license.
We've covered intellectual property issues that revolve around Tolkien's Lord of the Rings properties before. By now, everyone should know that any use of or homage to those properties, or even coincidental usage, will typically result in angry letters from lawyers. What's even more fun about all of that is you get to play the game called, "Whose lawyers are going to write the angry letter this time?" Between the Tolkien estate and its IP management partners and Warner Bros., the studio behind the LotR films, they have managed to block an unrelated wine business from using the word "hobbit," bullied a pub named "The Hobbit" to get it to change its name before recanting said bullying, and got a Kickstarter project shut down for trying to create a real-world "Hobbit house."This is where it's worth reminding everyone that Tolkien did not come up with the word "hobbit". That word already existed, though it meant something different than how Tolkien used it to name his race of diminutive folk. The Kickstarter example above is apropos to this post specifically, as it seems that Warner Bros. is at it again, having forced an Airbnb listing clearly designed to be another homage to Tolkien's hobbit homes in the Shire to change its name.
The Okanagan homage to middle earth that doubles as a popular Airbnb spot officially has a new name. It’s now the Second Breakfast Hideaway.“And the h***** mountain hole is now a Second Breakfast Hideaway (I'm still full from the first one),” the AirBNB owners wrote in a May 22 post.The popular Airbnb named for its likeness to the housing in J. R. R. Tolkien's Lord of Rings books went on the hunt for a new name following a threat from Warner Bros. which owns the trademark to the word hobbit. Christine Le Combe and her husband purchased the Halfling Hideaway, located roughly 30 minutes east of Osoyoos, last year and renamed it the Hobbit Mountain Hideaway. It's been a popular vacation destination since it opened in 2019. Earlier this week, Le Combe was contacted by entertainment media company Warner Bros. and was told the word “hobbit” is trademarked and they asked her to take down the listing.
Unfortunately, the source post doesn't bother to interrogate whether the takedown request from Warner Bros. is remotely valid. I would very much argue that it is not, considering that Warner Bros. use of the term "hobbit" is solely focused on movies and movie merchandise, both of which are a far cry from the hospitality and rental business. But Warner Bros. also has deep pockets and the folks behind this Airbnb listing likely do not, which is why trademark bullying works. The threat of Warner Bros. taking this far enough for it to see the inside of the courtroom is almost certainly an extinction level scenario for the former Hobbit Mountain Hideaway.So, instead, a movie studio gets a rental property to change its name. And that sucks, no matter how positive the victims of this bullying want to be.
“Having to get out of my comfort zone and engage with the community has been a good experience,” Le Combe said.“I really didn’t think that somebody would copyright the word hobbit and then try to hunt a person down if they use the word hobbit because it’s not like I meant any harm. The hobbit house is an homage to the favourite book series of a lot of people.”
It's almost as though at Warner Bros. there is some sort of all-seeing eye that scours the physical and digital worlds for any use of the term "hobbit", all in an effort to track and strike down those that would use it. If only there were some usable analogy I could reference for that without getting sued...
Summary: Three weeks before the presidential election, the New York Post published an article that supposedly detailed meetings Hunter Biden (son of presidential candidate Joe Biden) had with a Ukrainian energy firm several months before the then-Vice President allegedly pressured Ukraine government officials to fire a prosecutor investigating the company.The "smoking gun" -- albeit one of very dubious provenance -- provided ammo for Biden opponents, who saw this as evidence of Biden family corruption. The news quickly spread across Twitter. But shortly after the news broke, Twitter began removing links to the article.
Backlash ensued. Conservatives claimed this was more evidence of Twitter's pro-Biden bias. Others went so far as to assert this was Twitter interfering in an election. The reality of the situation was far more mundane.As Twitter clarified -- largely to no avail -- it was simply enforcing its rules on hacked materials. To protect victims of hacking, Twitter forbids the distribution of information derived from hacking, malicious or otherwise. This policy was first put in place in March 2019, but it took an election season event to draw national attention to it.The policy was updated after the Hunter Biden story broke, but largely remained unchanged. The updated policy explained in greater detail why Twitter takes down links to hacked material, as well as any exceptions it had to this rule.Despite many people seeing this policy in action for the first time, this response was nothing new. Twitter had exercised it four months earlier, deleting tweets and suspending accounts linking to information obtained from law enforcement agencies by the Anonymous hacker collective and published by transparency activists Distributed Denial of Secrets. The only major difference was this involved acknowledged hackers and had nothing to do with a very contentious presidential race.Decisions to be made by Twitter:
Does the across-the-board blocking of hacked material prevent access to information of public interest?
Does relying on the input of Twitter users to locate and moderate allegedly hacked materials allow users to bury information they'd rather not seen made public?
Is this a problem Twitter has handled inadequately in the past? If so, does enforcement of this policy effectively deter hackers from publishing private information that could be damaging to victims?
Questions and policy implications to consider:
Given the often-heated debates involving releases of information derived from hacking, does leaving decisions to Twitter moderators allow the platform to decide what is or isn't newsworthy?
Is the relative "power" (for lack of a better term) of the hacking victim (government agencies vs. private individuals) factored into Twitter's moderation decisions?
Does any vetting of the hacked content occur before moderation decisions are made to see if released material actually contains violations of policy?
Resolution: The expanded version of Twitter's rules on hacked material remain in force. The additions to the policy in response to questions about its takedown of the Post article more clearly state what is or isn't allowed on the platform. The expanded rules presumably also make it easier for moderators to make informed decisions, rather than simply remove any information that may appear to be the result of hacking.Originally posted to the Trust & Safety Foundation website.
As vaccinations and relaxed health guidelines make returning to the office a reality for more companies, there seems to be a disconnect between managers and their workers over remote work.A good example of this is a recent op-ed written by the CEO of a Washington, D.C. magazine that suggested workers could lose benefits like health care if they insist on continuing to work remotely as the COVID-19 pandemic recedes. The staff reacted by refusing to publish for a day.While the CEO later apologized, she isn't alone in appearing to bungle the transition back to the office after over a year in which tens of millions of employees were forced to work from home. A recent survey of full-time corporate or government employees found that two-thirds say their employers either have not communicated a post-pandemic office strategy or have only vaguely done so.As workforcescholars, we are interested in teasing out how workers are dealing with this situation. Our recent research found that this failure to communicate clearly is hurting morale, culture and retention.Workers relocatingWe first began investigating workers' pandemic experiences in July 2020 as shelter-in-place orders shuttered offices and remote work was widespread. At the time, we wanted to know how workers were using their newfound freedom to potentially work virtually from anywhere.We analyzed a dataset that a business and technology newsletter attained from surveying its 585,000 active readers. It asked them whether they planned to relocate during the next six months and to share their story about why and where from and to.After a review, we had just under 3,000 responses, including 1,361 people who were planning to relocate or had recently done so. We systematically coded these responses to understand their motives and, based on distances moved, the degree of ongoing remote-work policy they would likely need.We found that a segment of these employees would require a full remote-work arrangement based on the distance moved from their office, and another portion would face a longer commute. Woven throughout this was the explicit or implicit expectation of some degree of ongoing remote work among many of the workers who moved during the pandemic.In other words, many of these workers were moving on the assumption - or promise - that they'd be able to keep working remotely at least some of the time after the pandemic ended. Or they seemed willing to quit if their employer didn't oblige.We wanted to see how these expectations were being met as the pandemic started to wind down in March 2021. So we searched online communities in Reddit to see what workers were saying. One forum proved particularly useful. A member asked, Has your employer made remote work permanent yet or is it still in the air? and went on to share his own experience. This post generated 101 responses with a good amount of detail on what their respective individual companies were doing.While this qualitative data is only a small sample that is not necessarily representative of the U.S. population at large, these posts allowed us to delve into a richer understanding of how workers feel, which a simple stat can't provide.We found a disconnect between workers and management that starts with but goes beyond the issue of the remote-work policy itself. Broadly speaking, we found three recurring themes in these anonymous posts.1. Broken remote-work promisesOthers have also found that people are taking advantage of pandemic-related remote work to relocate to a city at a distance large enough that it would require partial or full-time remote work after people return to the office.A recent survey by consulting firm PwC found that almost a quarter of workers were considering or planning to move more than 50 miles from one of their employer's main offices. The survey also found 12% have already made such a move during the pandemic without getting a new job.Our early findings suggested some workers would quit their current job rather than give up their new location if required by their employer, and we saw this actually start to occur in March.One worker planned a move from Phoenix to Tulsa with her fianc to get a bigger place with cheaper rent after her company went remote. She later had to leave her job for the move, even though they told me they would allow me to work from home, then said never mind about it.Another worker indicated the promise to work remotely was only implicit, but he still had his hopes up when leaders gassed us up for months saying we'd likely be able to keep working from home and come in occasionally and then changed their minds and demanded employees return to the office once vaccinated.2. Confused remote-work policiesAnother constant refrain we read in the worker comments was disappointment in their company's remote-work policy - or lack thereof.Whether workers said they were staying remote for now, returning to the office or still unsure, we found that nearly a quarter of the people in our sample said their leaders were not giving them meaningful explanations of what was driving the policy. Even worse, the explanations sometimes felt confusing or insulting.One worker complained that the manager wanted butts in seats because we couldn't be trusted to [work from home] even though we'd been doing it since last March, adding: I'm giving my notice on Monday.Another, whose company issued a two-week timeline for all to return to the office, griped: Our leadership felt people weren't as productive at home. While as a company we've hit most of our goals for the year. Makes no sense.After a long period of office shutterings, it stands to reason workers would need time to readjust to office life, a point expressed in recent survey results. Employers that quickly flip the switch in calling workers back and do so with poor clarifying rationale risk appearing tone-deaf.It suggests a lack of trust in productivity at a time when many workers report putting in more effort than ever and being strained by the increased digital intensity of their job - that is, the growing number of online meetings and chats.And even when companies said they wouldn't require a return to the office, workers still faulted them for their motives, which many employees described as financially motivated.We are going hybrid, one worker wrote. I personally don't think the company is doing it for us. I think they realized how efficient and how much money they are saving.Only a small minority of workers in our sample said their company asked for input on what employees actually want from a future remote work policy. Given that leaders are rightly concerned about company culture, we believe they are missing a key opportunity to engage with workers on the issue and show their policy rationales aren't only about dollars and cents.3. Corporate culture 'BS'Management gurus such as Peter Drucker and other scholars have found that corporate culture is very important to binding together workers in an organization, especially in times of stress.A company's culture is essentially its values and beliefs shared among its members. That's harder to foster when everyone is working remotely.That's likely why corporate human resource executives rank maintaining organizational culture as their top workforce priority for 2021.But many of the forum posts we reviewed suggested that employer efforts to do that during the pandemic by orchestrating team outings and other get-togethers were actually pushing workers away, and that this type of culture building was not welcome.[Like what you've read? Want more?Sign up for The Conversation's daily newsletter.]One worker's company had everyone come into the office for an outdoor luncheon a week ago, according to a post, adding: Idiots.Surveys have found that what workers want most from management, on the issue of corporate culture, are more remote-work resources, updated policies on flexibility and more communication from leadership.As another worker put it, I can tell you, most people really don't give 2 flips about 'company culture' and think it's BS.Kimberly Merriman, Professor of Management, Manning School of Business, University of Massachusetts Lowell; David Greenway, Doctoral Candidate in Leadership/Organization Studies, University of Massachusetts Lowell, and Tamara Montag-Smit, Assistant Professor of Business, University of Massachusetts LowellThis article is republished from The Conversation under a Creative Commons license. Read the original article.
Twitch seems to be putting on some sort of master class in how to respond to a crisis on its platform in as confusing a manner as possible. Without writing a thousand word summary, this whole thing started when Twitch nuked a bunch of streamer content in response to a backlog of DMCA notices, changed its affiliate program without notice, hung its streamers out to dry over the DMCAs when the backlash occurred, and basically angered the hell out of its most important asset, it's creative community. This basically set the theme for the public that Twitch wasn't treating its community very well.This continued to the present. Most recently, we discussed one streamer suddenly having her channel demonitized, ostensibly over so called "hot tub meta" streams, in which she appears in a bathing suit in a hot tub. While Twitch can do as it pleases with its platform, the real issue here was that all of this was done without any communication or notice from Twitch to the streamer, who goes by the handle Amouranth. Well, it turns out that she wasn't alone in having her channel suddenly demonitized in this fashion.
The company also addressed the recent controversy surrounding the sudden, uncommunicated demonetization of Kaitlyn “Amouranth” Siragusa’s channel, which took place earlier this week in reaction to complaints which Siragusa says came from from a single advertiser (Siragusa told Kotaku in an email that Twitch would not say which advertiser). Twitch’s post seems to dispute this characterization, instead attributing it to “the majority of our advertiser base.” Siragusa, however, was not alone. Sources have since told Kotaku that a number of streamers had advertising removed from their channels, though it seems that not all of them noticed or said anything publicly. This has alarmed Twitch streamers, who are now in the dark as to what’s considered advertiser-friendly content and what’s not—meaning they, too, are at risk of suddenly not being able to make money off Twitch ads anymore. In the blog post, Twitch did not do much to assuage their fears, but it did confirm that demonetization is a thing that can happen now.“On Twitch, brands get to decide where and when their ads appear,” the company wrote. “Today, they can target or avoid specific categories of content and flag channels that don’t meet their standards. This means that Twitch, in rare cases, will suspend advertising on a channel at the advertisers’ request. We absolutely do not permit brands to use protected characteristics as a filter for advertising targeting or blocking.”
Note that this is all communication that occurred after the fact. Acknowledging that, Twitch specifically stated that the way it had treated Amouranth was a "mistake." As was the lack of communication with all of the other streamers who had their channels demonitized. As was not getting the communication about what control advertisers had over channels receiving ad revenue until after all this occurred. Mistake after mistake, all of which quite frankly appear to be conscious decisions rather than oopsies.And, in an almost exact replication of the ready-fire-aim method Twitch employed for its DMCA debacle, the company's remedy for this now is to roll out more tools for advertisers and creators to avoid this situation that should have been avoided with those tools in the first place.
To remedy this and other issues, Twitch said it’s “working to develop more robust controls for advertisers and viewers to enable them to control their experiences on our service.” It’s also working on figuring out how to communicate to streamers what exactly “brand safe” means, but this functionality will apparently “take time to build and implement.”
The other plan Twitch has coming out of this latest situation is, and I cannot stress enough that this is real, the introduction of "hot tub" channels and the like.
In a new blog post today, Twitch announced that it has created a new category: “Pools, Hot Tubs, and Beaches.” Previously, hot tub streamers largely used the catch-all Just Chatting category, which led some streamers and viewers to accuse them of somehow breaking the rules—despite the fact that they were not actually breaking Twitch’s rules. In the blog post, Twitch clarified this.“While we have guidelines about sexually suggestive content, being found to be sexy by others is not against our rules, and Twitch will not take enforcement action against women, or anyone on our service, for their perceived attractiveness,” the company wrote, adding that it discourages harassment against all streamers regardless of their actions or intentions. “Under our current Nudity & Attire and Sexually Suggestive Content policies, streamers may appear in swimwear in contextually appropriate situations (at the beach, in a hot tub, for example), and we allow creative expression like body writing and body painting, provided the streamer has appropriate coverage as outlined by our attire policy.”
So, Amouranth did nothing wrong as far as Twitch is concerned, but it still demonitized her channel at the request of "advertisers" for reasons never fully articulated, not against Twitch's rules, without notice or communication, and with an almost perfect lack of transparency. But, hey, here's a new hot tub category for you all to stream in? The only real use I see for that is I can finally pitch Mike on my idea for a speedo-clad Twitch Techdirt stream where I yell about beer trademarks in a kiddie pool.This is where I remind you that Twitch is an Amazon property and has hefty resources to pull from to do its platform and PR right. It just doesn't seem to want to and the one left holding the proverbial bag is its creative community.Cool.
We have certainly seen some shitty trademark disputes in the past, but this one that centers around lawn fertilizer may take the proverbial cake. Apparently, the Milwaukee Metropolitan Sewerage District, supposedly focused on keeping the city's public water clean and local flooding from occurring, has something of a side hustle going where it also sells fertilizer to citizens, marketed as "Milorganite". Menards, the well-known home improvement retailer based in Wisconsin, sells its own fertilizer, marketed as e-Corganite. For this reason, in part due to an advertisement Menards put out (more on that in a moment), the Sewerage District has sent letters to Menards threatening to sue for trademark infringement. Worth noting is that Milorganite is actually sold in Menards stores.
The sewerage district has sent a letter to the company asking it to stop using the name e-Corganite for fertilizer it's been selling in Menards stores. Menard is trying to convince shoppers to purchase e-Corganite instead of the district's Milorganite fertilizer, according to the letter from Joseph Ganzer, a MMSD senior staff attorney.The letter includes a photo of a Menard store display showing the two products next to each other."As you can see, the name, bag design, and label are virtually identical to MMSD’s Milorganite bag," Ganzer wrote.
So, about that advertising display, well, here it is.
Now, there is quite a bit to say about that ad display. The names of the product are markedly different. While both use "organite" in the names as a reference to the organic material serving as a fertilizer, "mil" and "e-c" are very, very different. These are not homophones. They're not calling out the same origins. They are flatly different.On the question of trade dress, sure, both products feature a logo at the top of the bag and then a house and lawn in the imagery. The imagery is basically the same as every fertilizer product, or at least most of them. Complaining about including a home and lawn on a home fertilizer product is, frankly, silly. As to the logos at the top of the bag, well, those sure do seem significantly different as well. Different shapes on the borders combine with the prominent use of the different brand names to draw a firm distinction between the two products.As does, you know, the fact that Menards is putting them side by side specifically to distinguish them in the advertising. Nobody is looking at that display and drawing any confusion that the two products are the same, related, or from the same origin. The whole point of the display is to draw a distinction between the two.Yet, despite all of this, the Sewerage District has put the possibility of a lawsuit on its agenda for an upcoming commission meeting.
"The commission action is simply to ensure we may file suit if negotiations break down without having to rush an item to agenda in late summer, especially with August recess," Ganzer said.A lawsuit could seek damages, payment of any profits tied to selling e-Corganite and reimbursement of attorney's fees."However, MMSD has had a long and mutually beneficial relationship with Menards and we hope to continue selling our product in Menards stores," Ganzer wrote in the letter to the retailer. "My hope is that we can come to a resolution of this matter that will allow Menards to produce and market a competing biosolid fertilizer product, while simultaneously eliminating the risk of consumer confusion with MMSD’s product," the letter said.
There is no confusion. Menards has taken great pains to distinguish its products from those of the city. The only real question left is why Menards would bother agreeing to sell Milorganite at all any longer, given that the Sewerage District appears to want to bite the hand that feeds it.
Arizona Secretary of State Katie Hobbs sent a letter Thursday to Maricopa County officials to let them know that the fake "audit" of the 2020 election probably ruined hundreds of voting machines the county sent for "testing" under a subpoena from the state Senate. Since there's no knowing whether Cyber Ninjas, the QAnon enthusiasts running the audit, had messed up the machines, they can't safely be used again in future elections.Once the machines were no longer under Maricopa County's control, Hobbs explained, the "chain of custody" was broken, leaving her with "grave concerns regarding the security and integrity of these machines," she wrote.
Before we get into the more expensive implications of this, let's backtrack a little to see how this came to be.For months leading up to the 2020 presidential election, President Donald Trump and his enablers claimed the upcoming election would be fraudulent. Suspecting he was on his way out, Trump ramped up his baseless claims that everything from voting machines to mail-in votes couldn't be trusted.Once he had lost, the claims went into overdrive. The election had been "stolen." Hundreds of true believers stormed the Capitol on January 6, 2021 with the intent of preventing the election from being certified as a win for Joe Biden.The claims of fraud continued. Nobody could prove any fraudulent activity had occurred but Trump and his acolytes continued to insist Trump had been illegally removed from power. This group of idiots included several Congressional reps and Senators. It also included everyone from a pillow salesman to a cybersecurity "expert" who claimed his inability to properly compose a tweet was evidence of malicious hacking.Welcome to Maricopa County, where everyday is another scene cut from "Veep" because it was considered too improbable. State senate Republicans hired the ridiculous-sounding "Cyber Ninjas" to perform "America's Audit" (called this despite the fact it's confined to a single county in a single state) -- a recount of every vote in the county.Since then, it's been fiascoes piled on debacles piled on a foundation of conspiracy theories. It started with auditors working with blue pens that could be used to change ballots. Auditors are only supposed to use red pens, which can't be read by auditing equipment and voting machines.That's the most sane part of this. The CEO of the Cyber Ninjas has tweeted out stuff about "stopping the steal." The audit is partially financed by One America News Network, one of several entities sued for defamation by Dominion Voting Systems. At one point, auditors were using UV lights and 5k cameras to search for traces of bamboo, following up on the absurd claim that a box of filled ballots had been shipped in from China. How this was supposed to prove a link between ballots and China is best left to the brain geniuses at Cyber Ninja, who probably assume nothing is above slanty-eyed furriners and their desire to elect Sleepy Joe.Even the Republican-dominated Maricopa County Board of Supervisors found the whole thing appalling. Its scathing letter to state Senate leadership pointed out the auditors' inexperience and apparent inability to count and said the whole thing was nothing more than the state Senate placing election integrity in the hands of "grifters and con artists."This brings us back to the latest insanity. The voting machines were turned over to the Cyber Ninjas, who then acted as though chain-of-custody isn't that big of a deal. Since they followed none of the steps needed to ensure the machines remained intact and secure, the county has no choice but to decertify them once the Ninjas are done entertaining their "stolen election" fantasies. This isn't just the Secretary of State saying this. This is also the DHS's election security experts.
[DHS officials] unanimously advised that once election officials lose custody and control over voting systems and components, those devices should not be reused in future elections. Rather, decommissioning and replacing those devices is the safest option as no methods exist to adequately ensure those machines are safe to use in future elections.
As many as 358 machines may be affected by the actions of cybersecurity "experts" who have no previous experience with either election security or conducting a vote audit. The total cost for replacement could be more than $6 million.The only upshot is that local residents won't be paying for these. Thanks to the agreement reached with the so-called auditors, Maricopa County isn't responsible for costs like these. No, it will be the entire state paying for the clusterfuck that is "America's Audit." The state is on the hook. And with lawsuits already flying, taxpayers will be out even more money no matter what the outcome of this litigation is. And it all could have been prevented by either 1) hiring competent people to conduct the audit or 2) Senate Republicans not indulging the worst members and supporters of their party.
Summary: The messaging service Kik was founded in 2009 and has gone through multiple iterations over the years. However, it seemed to build a large following for mostly anonymous communication, allowing users to create many new usernames not linked to a phone number, and to establish private connections via those usernames. This privacy feature has been applauded by some as being important for journalists, activists and at-risk populations.However, the service has also been decried by many as being used in dangerous and abusive ways. NetNanny puts it as the number one dangerous messaging apps for kids, saying that it has had a problem with child exploitation and highlighting the many inappropriate chat rooms for kids on the app. Others have said that, while the service is used by many teenangers, many feel that it is not safe for them and full of sexual content and harassment.Indeed, in 2017, a Forbes report detailed that Kik had a huge child exploitation problem. It described multiple cases of child exploitation that we found on the app, and claimed that it did not appear that the company was doing much to deal with the problem, which seemed especially concerning given that over half of its users base was under 24 years of age.Soon after that article, Kik began to announce some changes to its content moderation efforts. It teamed up with Microsoft to improve its moderation practices. It also announced a $10 million effort to improve safety on the site and named some high profile individuals to its new Safety Advisory Board.A few months later the company announced updated community standards, with a focus on safety, and a partnership with Crisis Text Line. However, that appeared to do little to stem the concerns. A report later in 2018 said that, among law enforcement, the app that concerned them most was Kik, with nearly all saying that they had come across child exploitation cases on the app, and that the company was difficult to deal with.In response, the company argued that while it was constantly improving its trust & safety practices, it also wanted to protect the privacy of its users.Decisions to be made by Kik:
How can a company that promotes the privacy-protective nature of its messaging also limit and prevent serious and dangerous abusive practices?
How closely should Kik work with law enforcement when they find evidence of crimes on the platform?
Are there additional tools and features that can be implemented that would discourage those looking to use the platform in abusive ways?
Questions and policy implications to consider:
Are there ways to retain the benefits for journalists, activists, and at-risk groups that do not put others -- especially children -- at risk?
What are the tradeoffs between enabling useful private communications and making sure such tools are not used in abusive or dangerous ways?
Resolution: Despite the claims from Kik that it was improving its efforts to crack down on abuse, reports have continued to suggest that little has changed on the platform. A detailed report from early 2020 -- years after Kik said it was investing millions in improving the platform -- suggested that it was still a haven for sketchy content, even noting that just posting a Kik address publicly (on Twitter) resulted in near immediate abuse.Despite an announcement in late 2019 that the company was going to shut down the messaging service to focus on a new cryptocurrency plan, it reversed course soon after and sold off the messenger product to a new owner. In the year and half since the sale, Kik has not added any new content to its safety portal, and more recent articles still highlight how frequently child predators are found on the site.Originally published on the Trust & Safety Foundation website.
When you cover as many trademark disputes centered around the alcohol industry as I have, you really do start to realize just how many other industries don't seem to understand that their products are not the same as adult libations. Alcohol, you see, is not the same as a major metropolitan city. Alcohol is also not the same thing as fruit juice. Beer, as well, is not the same thing as wine. Alcohol is also not the same thing as a famous movie franchise.And, as the producers of the hit show Peaky Blinders are hopefully about to learn, alcohol is also not the same thing as a television show about a famous historical gang. See, Sadler's Brewhouse in the UK recently applied for a trademark on the many "Peaky Blinders" alcoholic drinks it sells in the United States. The production company for Peaky Blinders the Netflix show caught wind of this and promptly sued for trademark infringement, going so far as to ask the court for an injunction to prevent Sadler's from selling its products.
Mandabach sued Sadler’s for trademark infringement in November, alleging Sadler’s “Peaky Blinder” whiskey, gin, rum, and dark beer was likely to cause confusion with its show about the 19th century Birmingham, U.K., gang after which the show is named.Sadler’s applied for a U.S. trademark for the name in 2017. Mandabach sent it a warning letter in 2018, and Sadler’s began selling the drinks in the U.S. through co-defendants Halewood Wines & Spirits Inc and The Winebow Group LLC in 2020.
Now, before we get to how the court ruled on the injunction, there are a couple of things you have to understand about all of this. Peaky Blinders is not a fictional gang created by the show's producers. They were a very real street gang that operated in England until the early 1900s. Sadler's former owner was a descendent of a Peaky Blinder gang member and the gang used to go to the brewery's venues on the regular as a result. It's for those reasons that the company decided on using Peaky Blinders branding.Now, the show producers claimed a number of things in its lawsuit and request for an injunction. It claimed that the trademark it held for the show was not at all descriptive, that it had acquired secondary meaning, and that there was real customer confusion in the public due to Sadler's use. The court denied the injunction and the reasoning it did so should give the producers pause on whether to keep this lawsuit going in the first place.
Caryn Mandabach Productions Ltd didn’t show that it owned a protectable trademark in the name, that Sadler’s Brewhouse Ltd’s products were likely to cause confusion, or that the alleged confusion caused it irreparable harm, U.S. District Judge Consuelo Marshall said Wednesday, rejecting the production company’s bid for a preliminary injunction.Marshall found Wednesday that Mandabach didn’t prove it had a protectable interest in its unregistered trademarks, in part because its use of “Peaky Blinders” is “likely descriptive or suggestive of a television show regarding a group of persons named the Peaky Blinders.” Mandabach also didn’t make the “clear showing” required for a preliminary injunction that Sadler’s was likely to confuse consumers. Mandabach also wouldn’t be irreparably harmed without an injunction, Marshall said, noting that it waited over two years to sue and nearly three years to request an injunction after sending Sadler’s the warning letter.
The full ruling on the denied injunction is embedded below. If you want a sense of why Mandabach maybe should just drop this whole thing, it's worth a read. Injunction rulings have lower bars than would be considered in a motion to dismiss argument, should Sadler's seek one, but the analysis is still fairly damning. In a nod back to the opening paragraph of this post, for instance, consider the court's view on whether these two companies operate in the same marketplace.
“Related goods are generally more likely than unrelated goods to confuse the public as to the producers of the goods.” Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1150 (9th Cir. 2011). Here, Plaintiff’s good is a television show whereas Defendants’ goods are whiskey. Therefore, the proximity of the goods factor does not favor finding a likelihood of confusion.
Most of the tests for trademark infringement and for granting an injunction follow a similar track.Frankly, a great deal of this hinges on the show's own decision to use the name of a historically famous real life street gang as its show name. The idea that this slice of history could be locked up by a television show and prohibit its use in a totally unrelated market flies in the face of the purpose of trademark law.
Amid all the news about the third wave of the COVID-19 Pandemic and the politics behind the vaccination roll out, you might have missed the Ministerial Declaration from the G7 Digital and Technology Ministers' meeting. As per tradition, the G7 Digital Ministerial provides the opportunity for the seven richest countries of the world to declare their commitments and vision on the type of digital future they would like to see. The document is non-binding but it has the tendency to provide some useful insights on the way the G7 countries view digital issues and their future positions in multilateral fora; it is also informative of other, more formal, multilateral processes. On 28 April 2021, a statement was made addressing key technology issues and opportunities including security in ICT supply chains, Internet safety, free data flows, electronic transferable records, digital competition and technical standards.Yes, you read that right - technical standards. In the last several years technical standards have moved from the realm of engineers into wider politics. News stories have been replete with China's efforts to become a competitive force on 5G, AI and facial recognition standards and its wish to be developed internationally based on their national rules, culture and technology. But the public eye turned more closely to China when it was discovered that the facial recognition standards being developed by China in the UN system were from countries on the US sanctions list and used by China for monitoring Uighurs.None of this is new. For the past few years and for anyone who has been paying attention, China has been strategically positioning itself in various standards bodies realizing that shifting from a unipolar to a multipolar world order cannot happen unless it is capable of demonstrating a more strategic and competitive approach to the domination of the west. What was the tipping point, however, that made the seven richest countries in the world offer explicit language on standards inserted into their declaration? Everything seems to be pointing to the "newIP" standard proposal, recommending a change in the current Internet technology, that was put forward by Huawei and supported by China in the International Telecommunications Union (ITU). Although this new standard did not manage to pass the ITU's study group phase, it did raise the eyebrows of the West. And, rightly so.Historically, Internet standards have paved their own path and have majorly managed to stay outside of politics. In one of the earliest Requests for Comments (RFC), the definition of a standard was specific and narrow: a standard is a specification that is stable and well-understood, is technical competent, has multiple, independent and interoperable implementations with operations experience, enjoys significant public support, and is recognizably useful in some or all parts of the Internet.Traditionally, governments have had a hands-off approach in the development and deployment of standards related to the Internet; their development was part of the consensus-based, community-driven process developed and nurtured by the Internet Engineering Task Force (IETF) and their deployment was left to the market. A standard's life has always depended on its utility and contribution to the evolution of the Internet.This seems to be the case less and less. Over the past years, governments have shown increasing interest in the development of standards, and have sought ways to inject themselves into Internet standardization processes. There are two distinct ways that this trend has emerged. First, there's China, which actively seeks to displace the current Internet infrastructure. That was clear in the attempt with the newIP proposal. China has been strategic in not directly suggesting a complete rejection of the Internet model; instead, its claims have been that the Internet cannot meet future technologies and needs and, therefore, a new infrastructure, developed and nurtured by governments, is necessary. The second trend continues to support the open, market-driven standards development processes, but seeks ways for governments to be more actively involved. This, so far, has mainly been interpreted as identifying ways to provide incentives for the creation and deployment of certain standards, often those deemed strategically important.Even though these approaches reflect different political and governance dimensions - China supports a top-down approach over the West's bottom-up model - they do share one commonality: in both cases, politics are becoming part of the standardization process. This is entirely unlike the past 30 years of Internet development.This could have significant implications in the development and future of the Internet. There are benefits from the current structure: efficiency, agility and collaboration. The existing process ensures quick responses to problems. But, its main advantage is really the collective understanding that standards are driven by what is good for the Internet; that is, what is required for the Internet's stability, resilience and integrity.This doesn't mean that this process is perfect. Of course, it comes with its own limitations and challenges. But, even then, it is a tested process that has worked well for the Internet throughout most of its existence. It has worked - despite its flaws - because it has managed to keep political and cultural dimensions separate. Participants, irrespective of background, language, and political persuasion have been collaborating successfully by having the Internet and what's good for it, as their main objective.On the contrary, intergovernmental standards are driven by political differences and political motives. They are designed this way. This is not to say that governments should not be paying attention to the way standards are developed. But, it is crucial to do so in ways that do not seek to upend a model that is tested and responsive to the needs of the Internet.Dr. Konstantinos Komaitis is the Senior Director, Policy Strategy and Development at the Internet Society.Dominique Lazanski is the Director of Last Press Label, and a Consultant in International Internet and Cybersecurity Standards and Policy.
Nintendo really can't help itself. With the company's storied reputation for valuing strict control of all things intellectual property over literally everything else, we have detailed plenty of occasions where this restrictive attitude seems to work directly against the company actually selling things. From DMCAing fan-made ports of Nintendo's games to antiquated game systems, to getting fan-made expressions of Nintendo fandom taken down from 3rd party creation games like Dreams, to just DMCA carpet-bombing a wide range of fan-made games that serve as homages to Nintendo properties, the company has made it very clear that it will choose strict control over being good to its fans at every opportunity. Even, as is so often the case, when that means getting content taken down that essentially serves as an advertisement for Nintendo products.Perhaps this has never been more evident than when Nintendo recently got a Kickstarter project shut down, as that project was for a guidebook to Nintendo Amiibo products.
Made by Ninty Media, the unofficial amiibo handbook was designed as a guidebook that catalogued every single amiibo available at the time of the book’s release. Not only does this compendium show off every amiibo, it also gives fun facts about each character listed, and even has estimated prices to help those trying to purchase these desired figures today. The Kickstarter for the book launched last month and has long surpassed its initial goal of £3,000 with £36,172 at the time of its being taken down.However, that Kickstarter has now come to a halt thanks to this new dispute from Nintendo. Viewing the copyright notification on the Kickstarter page reveals that it is under dispute due to the use of the amiibo logo on the cover of the book, along with some of Nintendo’s other design marks. Paul Murphy, the man behind the amiibo handbook, along with other projects from Ninty Media, has posted on Twitter that he would respond shortly to this claim, demonstrating that the book isn’t cancelled yet. But he did offer refunds to anyone who contributed to the Kickstarter in the event that he loses the dispute.
Now, a couple of things I should stipulate right up front. First, Nintendo is well within its rights to take this action. Use of Nintendo's branding and imagery certainly runs afoul of copyright and trademark laws. Second, it was fairly silly of the makers of this book to use that branding and imagery, including font-types, without ever having reached out to Nintendo for any kind of approval. That would be the case if this were a book about the products of "Company X", but when it's Nintendo? C'mon, guys.So, with those stipulations out of the way, we can now get into just how stupid this all is on Nintendo's part as well. First, again, Nintendo doesn't have to spit directly in the faces of its fans.
Given Nintendo’s history, it’s unsurprising that what have been dubbed by many as the “Nintendo Ninjas” are at it again. Similar to Nintendo’s past cases, it’s a dispute where Nintendo is legally in the right, but dubious in its morality. The more of these projects Nintendo cancels, the clearer the message that Nintendo is against these types of fan projects. It’s not a good message to send to the community, and it harms the relationship Nintendo has with its consumers.
And then let's add to all of that that this book would essentially serve as a giant advertisement for Nintendo's Amiibo products. There are a zillion ways the company could have worked amicably with this Kickstarter project so as to both protect its IP, say with a cheap or free license to use the assets in question, while also ensuring that a book for Amiibo enthusiasts still got released. By all accounts, such possibilities were never even explored by Nintendo.That's not surprising any longer, but it remains quite disappointing. If we acknowledge that this book generally didn't serve any real threat to the monetary income of Nintendo, and likely would have been a boon instead, there was literally nothing to lose and everything to gain if Nintendo had chosen to be human and cool in this instance.Instead, it takes a hit on the relationship front with its fans and loses out on the free advertising for Amiibo products. Great job.
Summary: Substack launched in 2018, offering writers a place to engage in independent journalism and commentary. Looking to fill a perceived void in newsletter services, Substack gave writers an easy-to-use platform they could monetize through subscriptions and pageviews.As Substack began to attract popular writers, concerns over published content began to increase. The perception was that Substack attracted an inordinate number of creators who had either been de-platformed elsewhere or embraced views not welcome on other platforms. High-profile writers who found themselves jobless after crafting controversial content appeared to gravitate to Substack (including big names like Glenn Greenwald of The Intercept and The Atlantic's Andrew Sullivan), giving the platform the appearance of embracing views by providing a home for writers unwelcome pretty much everywhere else.A few months before the current controversy over Substack's content reached critical mass, the platform attempted to address questions about content moderation with a blog post that said most content decisions could be made by readers, rather than Substack itself. Its blog post made it clear users were in charge at all times: readers had no obligation to subscribe to content they didn't like and writers were free to leave at any time if they disagreed with Substack's decisions.But even then, the platform's moderation policies weren't completely hands off. As its post pointed out, the platform would take its own steps to remove spam, porn, doxxing, and harassment. Of course, the counterargument raised was that Substack's embrace of controversial contributors provided a home for people who'd engaged in harassment on other platforms (and who were often no longer welcome there).Decisions to be made by Substack:
Does offloading moderation to users increase the amount of potentially-objectionable content hosted by Substack?
Does this form of moderation give Substack the appearance it approves of controversial content contributed by others?
Is the company prepared to take a more hands-on approach if the amount of objectionable content hosted by Substack increases?
Questions and policy implications to consider:
Does a policy that relies heavily on users and writers to enforce allow users and contributors to shape Substack's "identity?"
Does limiting moderation by Substack attract the sort of contributors Substack desires to host and/or believes will make it more profitable?
Does the sharing of content off-platform undermine Substack's belief that others have complete control over the kind of content they're seeing?
Resolution: The controversy surrounding Substack's roster of writers continued to increase, along with calls for the platform to do more to moderate hosted content. Subtack's response was to retirate its embrace of "free press and free expression," but also offered a few additional moderation tweaks not present in its policies when it first received increased attention late last year.Most significantly, it announced it would not allow "hate speech" on its platform, although its definition was more expansive than policies on other social media services. Attacks on people based on race, ethnicity, religion, gender, etc. would not be permitted. However, Substack would continue to host attacks on "ideas, ideologies, organizations, or individuals for other reasons, even if those attacks are cruel and unfair."Originally posted to the Trust & Safety Foundation website.
SpaceX says the company has received more than 500,000 pre-orders for the company's growing low-orbit satellite broadband service. The company opened up pre-orders back in February, and says it currently has about 10,000 users around the world participating in the beta. Starlink, which (for now) costs about $100 per month (plus a $500 first month equipment charge), should provide a welcome new option for many folks currently stuck without any broadband whatsoever.But for those who continue to think Starlink is going to truly disrupt the broken U.S. broadband market, here's a few quick numbers. Up to 42 million Americans lack access to any broadband whatsoever, be it wired or wireless. Another 83 million currently live under a broadband monopoly, usually Comcast. Tens of millions more live under a broadband duopoly, which usually consists of Comcast and some regional phone company that stopped caring about upgrading its DSL networks sometime around 2005 or so. This regional monopolization directly results in spotty, expensive, sometimes sluggish service.In contrast, SpaceX and Musk say that the 500,000 users will probably get the service they've pre-ordered. But Musk noted last week that as the company begins to push into the several million connection territory, things will likely get tricky. Particularly in more dense areas where capacity constraints will continue to be a big problem, much like existing higher-orbit satellite offerings:
Only limitation is high density of users in urban areas. Most likely, all of the initial 500k will receive service. More of a challenge when we get into the several million user range.— Elon Musk (@elonmusk) May 4, 2021
Wall Street analysts recently predicted that even with Starlink's projected max deployment of about 12,000 low-orbit satellites, it's still only going to serve somewhere between 300,000 to 800,000 households, or less than 1% of the US market. And while over time analysts estimated that it could scale to about 6 million subscribers, that's still a fairly small dent in a very large US broadband problem. And at $600 for the first month of service, it's still out of range for many for whom broadband affordability is the real impediment to reliable access.It's also still not entirely clear what kind of network limitations we'll see on a fully-loaded commercial Starlink network in the post net neutrality era. The company initially won't want to impose too many draconian limits (like caps, overage fees, or heavy-handed throttling) in order to lure in new subscribers. But as the network gets congested and runs into the unnegotiable limitations of physics, it seems inevitable we'll see more and more restrictions of this type, once again making it clear that wireless and satellite offerings are still no substitute for future-proof technologies like fiber.Again, if you can afford the $600 first month payment, can actually secure a pre-order, and have no other options, it's very likely that Starlink will be a godsend regardless of where on the planet you live. It will also probably be helpful for those interested in getting portable access when camping, driving around in an RV, or in the middle of the ocean. But even the normally hype-prone Musk is making it abundantly clear that those expecting a major U.S. broadband market disruption shouldn't hold their breath.
TimeMagazine released its inaugural list of the 100 Most InfluentialCompanies, featuring an array of large and small corporations that“are helping to chart anessentialpath forward.”Disturbingly, among its choices of “disruptors” isClearview AI, the controversial facial recognition start-up known forillicitly scraping Americans’ images and demographicinformation from social media and selling the data to lawenforcement. By celebrating a company that engages in illegal masssurveillance, Time is complicit in the degradation of our privacy andour civil liberties.Even cursoryscrutiny by Time would have uncovered Clearview AI’sdisreputable practices. Perhaps Time was satisfied with the vagueexplanation from Clearview AI’s CEO, Hoan Ton-That, that thecompany is “working with law enforcement to balance privacy andsecurity.” But it’s hard to understand why, aftersubstantialreporting by other members of the media, Time chose toaccept Ton-That’s word when there is conclusive evidence thatClearview AI continues to violate civil liberties by supplying lawenforcement agencies, private banks and sports teams with billions ofillegally collected images.Widespread concernabout facial recognition technology’s threatsto civil liberties and its propensity for inaccuracy and racial biasfueled the public outcry that ensued after the New York Times firstbroke news about Clearview AI. Amidcalls from civil rights advocates for lawmakers to ban the use offacial recognition technology, membersof Congressquestioned Clearview AI about its technology and its potential forabuse against First Amendment-protected activity. Since then, agrowing listof U.S. cities havebanned police use of the technology.Despitethe bans and lawsuits, both locallyand internationally,against Clearview AI, the company’s indiscriminate collectionof Americans’ personal data without specific links tocriminality continues unabated. ClearviewAI’s troubling history and ongoing illegal activity should havedissuaded Time from elevating it in the public sphere. Yet the outletonly vaguely summarizes serious concerns about Clearview AI in itsprofile, mentioning briefly that “civil rights advocates fearabuses” of its technology despite reports of both the companyand its clients misleadingthe public. Without evidence, Time also credits Clearview AI for assisting in the arrest of individuals connected to the breach of the U.S. Capitol earlier this year, while sweeping aside Clearview AI's ties to misinformation.ClearviewAI’s secretive practices that Time lauds as “influential”and “disruptive” represent a dangerous disregard for oursocial norms and expectations of privacy. We have come to expect tocertain tradeoffs with technology providers: we share somedemographic information in exchange for the ease, convenience andconnectivity their products bring to our daily lives. However, anymarginal benefits of Clearview AI do not hold up against itssignificant potential for harm, and Time should have acknowledgedthat. The company’s technology paves the way to a dystopianfuture devoid of privacy and anonymity, both online and offline.Clearview AI is creating an environment where anyone - an ICE agent,a stalker or an individual bad actor within government – cantake a photo of an individual anywhere and automatically pull up thatperson’s Instagram, TikTok, blog, or other personal informationwithout their knowledge or consent.Itis a future civil society advocates have long warned about and willcontinue to fight against. Time should acknowledge these warnings inits report, especially since its readers are among Clearview AI’stargets. As an iconic publication that has been a part of America’smedia and social landscape for almost 100 years, Time has effectivelychronicled the struggle for civil liberties over the decades. It is adisgrace that when it came to covering today’s most influentialcompanies, Time instead chose to endorse a company that isdistinguished only for its unrelenting commitment to destroying thosesame liberties.FreddyMartinez is a policy analyst at Open The Government.
Well, that was fast. I mean, this all actually happened a few months ago but the unsealing process makes this all seem very sudden.Yesterday, it was revealed that the Trump DOJ sent a subpoena to Twitter demanding personal information related to the NunesAlt account -- one of several Rep. Devin Nunes has unsuccessfully tried to sue for defamation. It seemed very strange that the DOJ would be involved, but Nunes developed a close relationship with Trump over the past four years and it certainly appeared that this was some prime White House backscratching.The subpoena was delivered to Twitter last November. On March 10, Twitter filed its motion to quash, noting Nunes' multiple attempts to sue satirical Twitter accounts, his lack of success in doing so, and his apparent attempts to use federal law enforcement resources to engage in discovery for him.It also noted the DOJ's subpoena made no mention as to why Twitter should turn over this information. It wasn't until Twitter called the AUSA who signed the subpoena that it was provided answers. The answers were incomplete. The DOJ claimed it was part of an investigation into threats allegedly made by the account. But the DOJ refused to show Twitter the alleged threats, much less answer any of its other questions.A week later (but only one day later for us, thanks to a gag order being tossed into the spacetime continuum), the DOJ dropped its request [PDF] for this Twitter users' info. As was the case with the subpoena sent to Twitter, there's not a whole lot of information in the DOJ's withdrawal of its information demand.
The United States of America, by and through its undersigned counsel, respectfully submits under seal this memorandum in opposition to Twitter, Inc.’s motion to quash grand jury subpoena and to vacate non-disclosure order.On March 17, 2021, counsel for the United States informed counsel for Twitter, Inc. that the grand jury subpoena at issue is withdrawn. The term of the nondisclosure order has ended. As there is no dispute between the parties, Twitter, Inc.’s motion should be denied as moot.
Given this swift dismissal of its demand for info -- one supposedly tied to a super-serious investigation into "threatening communications in interstate commerce" (a complicated way of saying the internet was involved) -- it's difficult to believe this was anything other than a fishing expedition performed on behalf of Devin Nunes, who has had zero success talking courts into compelling the unmasking of his critics. If the DOJ really had anything worth investigating, it wouldn't have abandoned its efforts at the first sign of resistance.And we can't let this whole thing pass by without noting how gag orders disrupt the justice system and keep the public from learning what's being done with their tax dollars. Finding out about something like this six months after it was initiated and two months after the DOJ called it quits is ridiculous. The only thing protected here was the DOJ's shoddy reputation as a mere extension of President Trump's will while he and Bill Barr were still in control. That the DOJ refused to show Twitter the alleged threats strongly suggests it was attempting to turn heated (but protected) speech into a criminal act to help Devin Nunes out with his defamation lawsuits.
There was a man who wore a deer head and opened every conversation with "What up DOE!?" A guy from Sweden was reportedly speed-drawing strangers' portraits. Someone with a guitar was improvising songs for anyone who'd give him a topic. One man popped up on people's screens in the act of fornicating with a head of lettuce. Others dressed like ninjas, tried to persuade women to expose themselves, and played spontaneous transcontinental games of Connect Four. Occasionally, people even made nonvirtual connections: One punk-music blogger met a group of people from Michigan who ended up driving eleven hours to crash at his house for a concert in New York. And then, of course, fairly often, there was this kind of thing: "I saw some hot chicks then all of a sudden there was a man with a glass in his butthole."
As a Techdirt post explored, more recently ChatRoulette has been trying to find a way to keep the best elements of the idea without it degenerating into a peepshow for exhibitionists and worse. A real-time video meetup service from South Korea, founded in 2014 and called Azar, is grappling with the same issue. An article on the Rest of the World site explains:
Because it's an app rather than a website, it benefits from tying users to their smartphones, making it harder for banned accounts to come back online under new names. The company says it also uses artificial intelligence to moderate inappropriate content and allows users to easily report violations themselves.
Much of that revenue is likely driven by in-app purchases. When users tap through Azar, they're greeted by a barrage of prompts encouraging them to buy Gems -- tokens used to acquire everything from stickers and virtual gifts to extra daily matches. Users can also pay $14.99 to gain "VIP" status, which allows them to narrow matches down according to stated gender and country (the cost may vary in different markets).
In February, the original owner Hyperconnect was bought for $1.725 billion by Match Group. The latter already owns many similar dating services, including Tinder, Match, Meetic, OKCupid, Hinge, Pairs, PlentyOfFish and OurTime. One reason for the acquisition (pdf) may be that 77% of Hyperconnect's users are in Asia, with only 17% in Europe, and 6% in the US. An obvious move for Match Group would be to promote Hyperconnect's products outside Asia, where there seems plenty of room for growth. Azar may not be well-known in the West today, but that could change if its app-based approach and AI moderation allows it to catch on like ChatRoulette a decade ago, but without the lettuce fornicators.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.
COPA’s investigation led to more than 30 interviews including officers, civilians, a member of the judiciary, an assistant state’s attorney and the Cook County Sheriff’s Department, as well as the review of hundreds of pages of documentary evidence and hours of video material relevant to this incident. The investigation produced nearly one hundred allegations of misconduct stemming from the actions of more than a dozen officers.Anjanette Young's house was raided in February 2019. CPD officers bashed down her door just as she was headed to bed. Here's COPA's clinical description of that encounter, which still makes it pretty clear how traumatizing it was.
COPA’s investigation revealed that within entry to Ms. Young’s home, she was naked and immediately handcuffed. Within approximately 31 seconds after entry, an officer attempts to cover Ms. Young with a jacket and 14 seconds later covered her more fully with a blanket. Ms. Young remained handcuffed for nearly 10 minutes after which she was allowed to dress and then handcuffed again. In total, Ms. Young was handcuffed for nearly 17 minutes.
Young was handcuffed, covered in only a blanket, for more than 10 minutes. This was all captured by officers' body cams. However, the cameras were off when the officers decided to acknowledge the fact that they were in the wrong apartment.This investigation wouldn't have happened without the release of the bodycam footage -- something that was initially blocked by the Chicago PD. Making matters worse for everyone involved, Mayor Lori Lightfoot pretended she'd never heard about the raid until the local news had covered it.
The mayor initially insisted she knew nothing about the raid until WBBM-TV (Channel 2) aired the video in December.But after reviewing internal emails, the mayor was forced to admit she learned about the raid in November 2019, when a top aide warned Lightfoot about a “pretty bad wrongful raid” by Chicago police.“I have a lot of questions about this one,” she wrote at the time to top aides.
Lightfoot went as far as to demand the resignation of a city attorney over the failure to release the recordings earlier despite Lightfoot being instrumental in helping withhold the records from the raid victim and journalists making public records requests.COPA itself was unaware of the raid until it was asked by the Chicago PD attorney handling Anjanette Young's request for the recordings if there was an investigation underway. That was November 2019, seven months after the raid. The opportunistic PD then used this newly-initiated investigation as an excuse to deny requests for the videos.This raid prompted calls for change from several city and state officials, including Illinois State Attorney General Kwame Raoul. The state sued the city over the PD's "pattern and practice" of violating rights in January of this year, demanding a consent decree that would drastically modify how the department handled search warrants.The Chicago PD has had years to improve. But it hasn't. This traumatic wrong house raid isn't anything unusual for the department. It's just the latest -- one that managed to expose how much city officials will do to protect the department, despite publicly claiming they want better policing.The same month the CPD raided Anjanette Young's house, they raided another wrong address, giving children celebrating a birthday the gift of lifelong PTSD.
A family in Chicago has filed a lawsuit, claiming that the Chicago Police raided the wrong home during a 4-year-old's birthday party.Stephanie Bures, the plaintiff in the lawsuit, claims that officers had the wrong house during the Feb. 10 raid, claiming that the suspect sought by police had not lived there for five years.Bures claimed in the lawsuit that 17 officers raided the home during her son's birthday party. The lawsuit claims that officers pointed guns at the 4-year-old, and Bures' 7-year-old child.
Chicago police incorrectly raided the same family's home three times over the course of four months this year, according to a federal civil rights complaint filed Friday.The complaint was filed against the city and Chicago Police Department on behalf of Krystal Archie and her three children: 14-year-old Savannah, 11-year-old Telia and 7-year-old Jhaimarion, according to a statement from Archie's attorney Al Holfeld.
That's all from a single year of the CPD engaging in warrant service. The problems with the PD and its officers date back years, though. It's been the subject of DOJ investigations and federal court orders. And has long been seen as a place where corruption is not only ignored, but encouraged.The conclusion of this investigation moves the CPD slightly towards accountability. But only slightly. It's up to the police department to actually punish its officers and demand more accuracy and accountability from those engaging in guns-out raids of residents' houses.
Summary: When people think of content moderation and political debates, they may not think about knitting. However, the knitting community at the online site Ravelry has become a fascinating place to explore content moderation questions. This actually goes back many years, as Ravelry's content moderation practices (handled by dozens of volunteer moderators) were studied for a PhD dissertation by Sheila Saden Pisa that was published in 2013, entitled: In search of a practice: large scale moderation in a massive online community.Knitting and Ravelry have also been quite political at times. All the way back in 2009, a blog post was written by someone who was kicked off of Ravelry, and she believed it was because of her conservative political views. After the election of Donald Trump in 2016, Ravelry was where the initial plans for the now famous pussyhats (for the Women's March protesting Trump's Presidency) were first released and shared. Ioana Literat and Sandra Markus studied Ravelry's role in online participation, civic engagement and craftivism.
Still, it caught many people by surprise, in late 2019, when Ravelry declared a new policy, saying that it would no longer allow any posts supporting Donald Trump. From the announcement:
We are banning support of Donald Trump and his administration on Ravelry.This includes support in the form of forum posts, projects, patterns, profiles, and all other content. Note that we will not destroy project notebook data. If a project needs to be removed from the site, we will make sure that you have access to your data. Even if you are permanently banned from Ravelry, you will still be able to access any patterns that you purchased. Also, we will make sure that you receive a copy of your data.We cannot provide a space that is inclusive of all and also allow support for open white supremacy. Support of the Trump administration is undeniably support for white supremacy.The Community Guidelines have been updated with the following language: Note that support of President Trump, his administration, or individual policies that harm marginalized groups, all constitute hate speech.
The company noted that this was not a statement of support for other candidates, nor was it saying that it would ban people who (outside of Ravelry) supported Trump. It also made clear that it was not banning other political topics or statements in support of other candidates. Instead, it said: We are definitely not banning conservative politics. Hate groups and intolerance are different from other types of political positions. The decision created quite a lot of attention with many supporters and detractors.Decisions to be made by Ravelry:
How do you decide when one politician's positions are so problematic to your community that you ban any support of that candidate?
How will this policy be enforced? Should it apply to earlier statements of support or just future ones?
How will attempts to get around the ban (such as with hints or euphemisms) be dealt with?
Can volunteer moderators be supporters of Trump?
Questions and policy implications to consider:
What are the pros & cons of banning support for Trump v. banning all talk of politics?
Would other approaches -- such as moving all political talk, or all talk about Trump, to a specific area -- work as effectively?
If, as has been suggested in some Section 230 reform bills, the laws change to require political neutrality in content moderation, how will Ravelry's moderation practices be impacted?
Resolution: After Donald Trump left the White House on January 20th, Ravelry reiterated that its policy remained the same, even though Trump was no longer President. A year and a half after Ravelry's decision, the New Yorker published a long, and detailed article about the decision to ban Trump support on the site and how it is going, entitled How Politics Tested Ravelry and the Crafting Community.
On the day of the ban, Kim Denise, one of the volunteer moderators, told me, I was, like, I'm so psyched. I'm so proud to be part of Ravelry. Then the ban happened. And it was, like, Oh, my God. I wish we'd thought this through. Right-wing trolls began signing up for Ravelry accounts and spamming threads with anti-Ravelry or pro-Trump sentiment. Denise described it as hordes of screaming people lining up to sling feces at us. . . . It was terrible. Users scurried to help moderators by flagging posts for deletion. They recruited a retired moderator to help deal with trolls. Within a couple of months, most of the activity generated by the Trump ban had subsided. Conservative users banded together, in a movement hashtagged #RavelryExodus, deleting their accounts and shifting to other platforms to sell patterns.
The company's founder also admitted that after the ban was announced, she realized the difficulty in figuring out the exact boundaries of enforcement:
Jessica admitted that Ravelry has struggled to pinpoint exactly what constitutes inappropriate content. Some of this stuff is so nuanced, she said. Think about what tweet got Trump banned. It was not about attending the Inauguration. She went on, We went through some pretty crazy rabbit holes: 'O.K., this is an eagle, but it isn't really the Nazi eagle. Or is it?' It's just, like, ugh.
Famed YouTuber and Twitch streamer Angry Joe, or Jose Antonio Vargas, has made it onto Techdirt's pages in the past. True to his name, we've discussed his responses on a couple of intellectual property issues he's suffered through. When Nintendo flagged a video Angry Joe did about Mario Party 10, preventing him from further monetizing the video, he simply and angrily swore off of doing any Nintendo videos in the future, rightly noting that with the decision all the free advertising he'd given Nintendo just disappeared. When CBS blocked a review video he did because the review used 13 seconds of Star Trek: Picard, he took to Twitter to rip them to shreds as well. The point is that when Angry Joe encounters the frustrations many others deal with thanks to overly restrictive intellectual property practices, he doesn't stay silent. He gets... well... angry.With that in mind, it's probably not all that surprising that the way Twitch is handling its DMCA process has finally caught up to Angry Joe resulting in yet another angry rant. Like many other Twitch creators, Angry Joe has been hit with DMCA notices. As he goes on to note, the process Twitch has designed for how this all works, well, sucks out loud.
Joe highlighted two major issues with Twitch’s system. The first is the strikes on people’s accounts are permanent, and don’t expire after 90 days like YouTube.“Copyright strikes do not depreciate after a set period of time. If I receive three strikes my channel is terminated, yet I can’t see the strike, I can’t submit a counter-notification, I can’t submit a dispute,” he said in a recent rant. “It can’t get any worse than this.”
This seems both like it should be an easy problem to fix and an easy problem to have completely avoided in the first place. If anyone had bothered to test out Twitch's DMCA process prior to putting it in place, especially from the perspective of someone who had received multiple DMCA notices, it would have been immediately obvious that multiple strikes create a situation where the accused can't even counter the notice.But the issues with the dispute program go deeper than that.
Joe used an example of a copyright strike he received in February 2021 for a Warzone clip dating back to November 2020, which had the Astronomia song — popularized by the coffin dance meme — playing inside the game.“Here is your DMCA strike. What is the clip? We don’t have a link to the clip. We told you to delete all of your VODs. There is no ‘Dispute’ button,” he explained. “You can’t even review the VODs identified in DMCA notifications in your dashboard, and they don’t plan [on adding that feature] that until December 2021.”
If this all sounds absurd, it very much is. We've made this point before, but Twitch creators are Twitch's biggest and most important asset. Twitch is owned by Amazon. Amazon has virtually unlimited resources. Instead of bringing those resources to bear on all this nonsense, Twitch has instead hung its most important assets out to dry. The roadmap items are half a year away. Creators are getting slammed with these DMCA requests. Twitch is mostly doing nothing other than admiring the failed program it has rolled out.It should be noted that Angry Joe has a very loud voice when it comes to streamers. If this doesn't get fixed soon, this could lead to a creator exodus.
Destroying houses appears to be a cop hobby. Somehow searching for suspects involves punching larger-than-man-size holes in walls, shattering every pane of glass that separates cops from perps, and forcibly removing every door that would otherwise open as designed if officers attempted to use the handles.Maybe some of this is justified if an armed and dangerous suspect is barricaded inside. But law enforcement agencies have made citizens suspected of nothing homeless while attempting to extricate shoplifting suspects, homeless people, and a man armed with nothing more than an ice cream bar. One woman's house was rendered unlivable after it was the centerpiece in a 10-hour standoff between local cops and the only resident located in the house: the family dog. And a house that contained no one was destroyed after its empty interior thwarted cops' efforts to apprehend a nonexistent suspect for more than 19 hours.Trying to get anyone other than innocent homeowners to pay for this damage is almost impossible. Almost every court has considered this the cost of doing government business -- something taxpayers are always asked to cover. If officers have a law enforcement reason to raze houses, the cost must be borne by those unhoused.Another case involving the destruction of a house to capture a suspect who wasn't even on the premises has made its way into the court system. And it has (mostly) dead-ended there, thanks to a recent decision by the South Dakota Supreme Court.In this case, the Hamlin County Sheriff's Department was searching for Gary Hamen, who had an outstanding arrest warrant for felony burglary and violation of a protective order. Gary -- who had threatened to shoot himself and anyone else he came in contact with -- called his father, Gareth, asking for a vehicle to drive to "Canada or Mexico." At that point, he was in a nearby trailer home owned by Gareth, located about 600 feet away from Gareth's trailer.Officers listened in on this phone call and deputies saw Gary exit the trailer and then walk back inside. The Sheriff's Department requested the assistance of the Watertown PD and secured a drone to fly over the trailer in an attempt to spot Gary or see any exit routes he might take.A SWAT team assembled and set up a perimeter around the trailer. But this effort appears to have been mostly pointless. From the decision [PDF]:
While the SWAT team attempted to contact Gary, officers received a report that a local resident had observed Gary running towards Castlewood. The resident reported that Gary came out of a tree line near a river and sewage pond, but he had run back into the trees. Sergeant Ellis and the SWAT team tried to locate Gary in this area and encountered another witness who also believed he had seen Gary. An officer inside the armored vehicle called Gary’s cellphone. Gary answered the phone call and claimed he was almost to Minnesota. He sounded out of breath, like he was running.
Law enforcement also spoke to Gary's brother-in-law, who confirmed he had seen Gary the previous night. During this conversation, officers received more information suggesting Gary was no longer in the trailer currently surrounded by a SWAT team.Not too far away, even more radio traffic suggested entering the trailer wasn't going to result in the discovery of the fugitive.
Meanwhile, Troy Jurrens, who ran a business from his home nearby, was listening to the transmissions among law enforcement on a police scanner as they attempted to locate Gary. He stated: “someone announced on the radio that they were ‘going back to the trailer,’” to which another voice responded, “he’s not in the trailer.” Troy claimed, “The first voice answered back saying they were going back anyway.”
Deputies told Gareth they were going to try to enter the trailer. They did not mention they were planning to destroy the trailer to do this. They also did not ask for consent to enter the trailer, which was the property of Gareth Hamen. Cop-on-house violence ensued.
Not long after, the Sheriff authorized SWAT and the SRT to breach doors and windows on the Hamens’ mobile home. According to Wishard’s affidavit, the “tactical procedure [to secure the mobile home] is to create communication portholes in attempts to call out any subject or subjects that may be hiding inside.” If unsuccessful, gas munitions are used to flush out anyone inside. To create the communication portholes for the Hamens’ trailer, an armored vehicle pulled away the front stairs and deck, which were not attached to the mobile home or secured in the ground, and pushed in the front door with a ram. The second armored vehicle opened three portholes on the opposite side of the mobile home by breaking through windows and a sliding patio door, causing significant damage to the walls and the septic system.
Shortly after this procedure and before officers entered the mobile home, Gary was seen walking in the river near the Hamens’ residence. Law enforcement apprehended him at approximately 6:00 p.m.
Gareth Hamen sued, seeking compensation for his destroyed property. But there's nothing in the law that says the government needs to pay for property it destroys -- at least not in this fashion. While state law does allow property owners to seek compensation under the state constitution (in order to "ensure that individuals are not unfairly burdened by disproportionately bearing the costs of projects intended to benefit the public generally"), that clause doesn't apply to cops destroying a house to find someone who wasn't even in it. And it's that way because this court has always said that's the way it is.
[O]ur prior decisions have consistently applied the public use language in article VI, § 13 to both the takings and damages clauses, while rejecting a right to compensation under article VI, § 13 when the action involved the state’s police power.
That eliminates one of the allegations. But there's still qualified immunity to consider. Unfortunately, the state Supreme Court says only one of those two allegations will survive.There were two egregious Constitutional violations: the warrantless entry and the excessive destruction of personal property. Guess which one gets to go forward.
We conclude that, at a minimum, the Sheriff’s warrantless entry into the mobile home required an objectively reasonable belief that Gary was living in and present in the home at the time of entry.[...]Given that law enforcement’s last contact with Gary suggested he was no longer in the home, coupled with the fact that law enforcement had surrounded the mobile home for several hours without incident or any materialized threat from Gary, we cannot determine as a matter of law that exigent circumstances existed at the time the Sheriff decided to enter the mobile home.
Since there's plenty of information on the record that suggests at least some officers involved had reason to believe Gary wasn't in the home, there could not possibly be exigent circumstances to enter the home without a warrant to locate someone arrested a couple of hours later outside of the home. This goes back to the lower court for more development of the record.Unfortunately, the court somehow doesn't consider the damage caused during the search to be worthy of further examination. The officers are granted qualified immunity for the excessive force, even though the court says the entry itself may have been unconstitutional. Walking through a front door without a warrant is no good. Forcibly removing the door (along with windows, walls, part of the septic system, etc.) is just fine because no "reasonable officer" would have been aware that destroying a house to facilitate an illegal search was unconstitutional.
Regardless of whether the Sheriff used excessive force, the Hamens cannot prevail because they cannot show that the Sheriff’s use of force, even if it was excessive, violated a “clearly established” right.
The dissent says this makes no sense. If the entry was unlawful, everything that connected to that entry is similarly unlawful.
Regarding the § 1983 excessive force claim, as a starting premise, if the court determines on remand that the Sheriff’s entry into the mobile home was unlawful, then the nature and extent of force used is immaterial. In such case, the Sheriff is liable to the Hamens’ for the damage caused by the entry.Furthermore, even if the entry is ultimately proven lawful, the damage caused was excessive, given the facts of the case.Viewing the underlying facts in a light most favorable to the Hamens, it is questionable whether the use of “communication portals” of the sort made here were required given the small size of the trailer, particularly when considering that, up to the point of their decision to enter the trailer, law enforcement had been using a loudspeaker to attempt to communicate with Gary. Viewed in this light, the resulting damage to the trailer was intolerable in its intensity and unnecessary to execute the burglary warrant at issue.
That's how it stands in South Dakota: law enforcement can destroy a house to engage in an illegal search without having to worry about paying for the damage. A single claim survives this trip through the court system, which likely isn't going to produce a decision or settlement large enough to replace the home. And even if it does, it will come years after the damage was done.
It's been three or so years since Valve announced a new "hands off" approach towards approvals for games on its dominant Steam storefront. This new "policy" was unfortunately rolled out in an extremely Steam-like manner: vague and largely indecipherable, full of holes, and all with a caveat baked in that Steam could still do basically whatever it wants. Later, the company clarified that the chief goal with all of this was to allow for more adult-oriented games while still giving Steam the ability to disallow "troll games", as though that actually clarified anything. Predictably, this new policy set off confusion all over the place, and even years into the change its application appears to be aggressively inconsistent.Three years in and it's still a problem. The developers of Holodexxx, a VR sex game featuring VR-rendered real-life porn stars, has expended thousands of dollars to try to comply with Steam's policies only to find the game banned from the platform. Interestingly, the developers of the game appear to have intended this to be less of a gross or trollish look at a sex video game and more as something that is both adult-oriented but a "sex positive" experience.
Holodexxx is a game in which simulated versions of real adult performers interact with the player in virtual reality, with AI guiding elements of the performance. Its creators bill it as an ethical, sex-positive game being made in conjunction with and featuring real sex workers. Steam, at this point, carries a plethora of games that include adult content—some of which venture into much dicier thematic territory than Holodexxx. But that didn’t stop Valve from chasing Holodexxx off its holodeck.
On pre-2018 Steam, this is a game that would absolutely not be allowed on the platform. But the whole point of the change in policy was supposed to be to allow for more content of this nature, so long as it didn't dive into "troll" territory. And, to some extent, that policy shift achieved its goal. There are a great many adult sex games on Steam these days, with the level of raunchiness in those games playing across a spectrum for that sort of thing. But in this case, the game has been rejected several times, no matter what the developer tries to do to comply with Steam's policy.
In a recent lengthy blog, the game’s developers outlined everything they’ve tried over the course of multiple months. To begin, they submitted a “PG-13 experience” to Steam starring a clothed version of adult film actress Riley Reid, along with a censored video of live adult stars. Valve, say Holodexxx’s developers, blocked the submission “with a boiler-plate explanation that video pornography was not allowed on Steam.” So then the developers spent additional time creating a new demo without video of adult stars, in which the player could instead look at a model of adult film actress Marley Brinx in a virtual environment. Again, Valve blocked it on the basis that it was “pornography.”At that point, Holodexxx’s developers went back to the drawing board and spent “months” on Holodexxx Home, a more elaborate interactive experience with dialogue systems and direct physical interactions. It involves undressing a character, but so do other games on Steam, so in theory, it doesn’t necessarily activate any of Valve’s tripwires. However, you can probably guess what happened next.“We submitted Home and waited a few weeks,” wrote Holodexxx’s developers. “After poking Steam via help tickets, our build was reviewed two days later... and banned. The explanation was again, that Steam does not allow ‘pornography’ on their platform.”
In all, the developer claims that it has spent something like $20,000 just trying to get a version in place that would meet Steam's guidelines. Unfortunately, that effort appears to have failed as that last rejection once again simply regurgitated the anti-pornography stance previously iterated.Now, let's be clear on a couple of things. First, you may not like the idea of adult games showing up on Steam. That doesn't really matter for this story. Steam shifted policies to allow for more of them and they can run their platform as they choose. Secondly, I'll reiterate that point: Steam can block this game from its platform if it wants.But the problem here is the lack of clarity in the policy and the inconsistency with which it is applied. If you need this broken down further, I'll put it this way: when a developer can spend five-figures trying to comply with a platform's policy and can't manage to do so, the problem is on the platform's end. Either the policy isn't clear enough for developers (check!), hasn't been applied in a way that's consistent enough to allow it to be interpreted (check!), or the communication in feedback to developers about the policy as it applies to their specific games hasn't been handled well (check!).In this case, Steam has failed at all three levels. Again, the platform can do as it pleases with its property, but if the platform is going to have a policy, it might as well make it one that actually works.
Summary: On June 5, 2019, YouTube announced it would be stepping up its efforts to remove hateful content, focusing on the apparent increase of white nationalist and pro-Nazi content being created by users. This change in algorithm would limit views of borderline content and push more viewers towards content less likely to contain hateful views. The company's blog post specifically stated it would be removing videos that "glorified Nazi ideology."Unfortunately, when the updated algorithm went to work removing this content, it also took down content that educated and informed people about Nazis and their ideology, but quite obviously did not "glorify" them.Ford Fischer -- a journalist who tracks extremist and hate groups -- noticed his entire channel had been demonetized within "minutes" of the rollout. YouTube responded to Fischer's attempt to have his channel reinstated by stating multiple videos -- including interviews with white nationalists -- violated the updated policy on hateful content.A similar thing happened to history teacher Scott Allsop, who was banned by YouTube for his uploads of archival footage of propaganda speeches by Nazi leaders, including Adolph Hitler. Allsop uploaded these for their historical value as well as for use in his history classes. The notice placed on his terminated account stated it had been taken down for "multiple or severe violations" of YouTube's hate speech policies.Another YouTube user noticed his upload of 1938 documentary about the rise of the Nazi party in Germany had been taken down for similar reasons, even though the documentary was decidedly anti-Nazi in its presentation and had obvious historical value.Decisions to be made by YouTube:
Should algorithm tweaks be tested in a sandboxed environment prior to rollout to see how often they're flagging content that doesn't actually violate policies?
Given that this sort of mis-targeting has happened in the past, does YouTube have a response plan in place to swiftly handle mistaken content removals?
Should additional staffing be brought on board to handle the expected collateral damage of updated moderation policies?
Questions and policy implications to consider:
Should there be a waiting period on enforcement that would allow users with flagged content to make their case prior to being hit by enforcement methods like demonetization or bans?
Should YouTube offer some sort of compensation to users whose channels are adversely affected by mistakes like these?
Should users whose content hasn't been flagged previously for policy violations be given a benefit of a doubt when flagged by automated moderation efforts?
Resolution: In most cases, content mistakenly targeted by the algorithm change was reinstated within hours of being taken down. In the case of Ford Fischer, reinstatement took longer. And he was again demonetized by YouTube in early 2021, apparently over raw footage of the January 6th riot in Washington, DC. Within hours, YouTube had reinstated his account, but not before drawing more negative press over its moderation problems.Originally published to the Trust & Safety Foundation website.
By way of a throat clearing, there are a couple of things you need to know about Hergé, the nom de guerre for the artist behind the well-known Tintin comics of yore. First, Hergé's estate has found its way onto Techdirt's pages before and has a reputation for being wildly restrictive and litigious over any use or reference to Tintin. Alongside that, you need to know that Hergé absolutely did every last thing he could to keep women entirely out of his comic strips. His reasoning for this can be best summarized as a combination of having a too much "respect" for women to include them in his humor comic... and also that women, according to his estate, were "rarely comic elements." Women, in other words, are bad for humor.So it makes perfect sense that a modern artist decided to create new material featuring Tintin in romantic or risqué settings with women and both parody and commentary on the original works. And, likewise, it makes perfect sense that the Hergé estate sued over it.
In Breton artist Xavier Marabout’s Hergé-Hopper mashupsTintin is variously painted into Hopper’s Road and Houses, scratching his head as he greets a woman in a car; looking disgruntled in a version of Hopper’s Cape Cod Evening, 1939; and kissing a girl in a car, in a spin on Hopper’s Queensborough Bridge, 1913. On his website, Marabout describes his work as “strip art”, in which he “strips distant artistic universes to merge them together” in a style where “parody [is] omnipresent”.But the Moulinsart company, which manages the Tintin business, disagrees, accusing Marabout of reproducing the world of Tintin without proper consent.“Taking advantage of the reputation of a character to immerse him in an erotic universe has nothing to do with humour,” a lawyer for the company said in court in Rennes this week, where Moulinsart has sued for infringement, as reported by Ouest-France.
Thankfully for the entire world, lawyers are not generally considered the arbiters of humor. And there is good reason for that. Most fair use equivalents throughout the world carve out specific exemptions for parody and commentary for this very reason. New artists seeking to provide social commentary, through humor or otherwise, need the room to produce that commentary. The upturned nose of some estate lawyer somewhere is not supposed to be a barrier.With that in mind, Marabout's rebuttal to the suit is roughly what you would expect.
In response, Marabout’s lawyer claimed the paintings were parody, reported Ouest-France, and cited a “conflict between copyright and freedom of expression and creation”, asking: “Does an artist have the right to wonder about Tintin’s sex life?” and “what about artistic freedom?” The Rennes court will rule in May.Marabout told the Guardian that his work echoed the historian Christian Jacob’s belief that “there is no cultural transmission without reappropriation”.
Imagine a world in which an artist couldn't create artistic commentary on a socially important icon simply due to copyright law. More to the point, imagine one artist attempting to restrict artistic commentary from another on those same grounds. It's absurd and negates the way that art and commentary are made, not to mention that it hand-waves the importance of that commentary to society.Fortunately, it appears that the French courts agree.
On Monday, Moulinsart’s complaint was rejected by the court in Rennes. “The court recognised the parody exception and the humorous intention expressed by my client,” Marabout’s lawyer, Bertrand Ermeneux, said.The Rennes court also said that Moulinsart had “denigrated” Marabout by contacting galleries showing his work to say that it was infringing, Huffington Post France reported, adding €10,000 (£8,500) in damages for Marabout and €20,000 in legal fees to its ruling.
Given how the legal system has let the Hergé estate run roughshod over others in the past, this is as good an outcome as one could hope for. To not only see the suit tossed, but to see Moulinsart punished monetarily for his bullying ways is a breath of fresh air.Still, we're left with the never ending question: why can't fellow artists and content producers understand that the same protections that protect their work also apply to other artists?
A few years ago, the Georgia Court of Appeals kept a lawsuit alive against Snapchat, brought by the parents of a victim of a car crash -- one supposedly encouraged by Snapchat's "speed filter." No Section 230 immunity was extended to Snapchat, which only made the filter available, but did not actually participate (other than as another passenger) in the reckless driving that resulted in the accident that left another driver permanently brain damaged.Removing this case to federal court most likely would not have helped. Another lawsuit against Snapchat over its "speed filter" has been allowed to move forward by the Ninth Circuit Court of Appeals. (via Ars Technica)This case involves another tragic car accident and the use of Snap's app and "speed filter." From the decision [PDF]:
According to the Parents’ amended complaint, Jason Davis (age 17), Hunter Morby (age 17), and Landen Brown (age 20) were driving down Cranberry Road in Walworth County, Wisconsin at around 7:00 p.m. on May 28, 2017. Jason sat behind the wheel, Landen occupied the front passenger seat, and Hunter rode in the back seat. At some point during their drive, the boys’ car began to speed as fast as 123 MPH. They sped along at these high speeds for several minutes, before they eventually ran off the road at approximately 113 MPH and crashed into a tree. Tragically, their car burst into flames, and all three boys died.
One of the people in the car opened Snapchat and enabled the "speed filter" minutes before the fatal accident. According to the allegations, a number of Snapchat users believed (incorrectly) Snapchat would reward them (the ruling doesn't specify with what) for exceeding 100 mph. That's where the allegations tie Snapchat to reckless driving by end users. It isn't much, but it's apparently enough to allow the lawsuit to move forward.And it's these specific allegations that allow the lawsuit to avoid the expected Section 230 immunity defense. The plaintiffs don't claim Snapchat isn't a publisher of third-party content. They don't even argue this lawsuit centers on the "speed filter" post made shortly before the accident. Instead, they argue the app itself -- with its attendant (but now removed) "speed filter" -- is negligently-designed, leading directly to the tragedies at the center of this suit.
It is thus apparent that the Parents’ amended complaint does not seek to hold Snap liable for its conduct as a publisher or speaker. Their negligent design lawsuit treats Snap as a products manufacturer, accusing it of negligently designing a product (Snapchat) with a defect (the interplay between Snapchat’s reward system and the Speed Filter). Thus, the duty that Snap allegedly violated “springs from” its distinct capacity as a product designer. Barnes, 570 F.3d at 1107. This is further evidenced by the fact that Snap could have satisfied its “alleged obligation”—to take reasonable measures to design a product more useful than it was foreseeably dangerous—without altering the content that Snapchat’s users generate.
Because of that, the only discussion of Section 230 is to explain why it's not an appropriate defense in this case.
That Snap allows its users to transmit user-generated content to one another does not detract from the fact that the Parents seek to hold Snap liable for its role in violating its distinct duty to design a reasonably safe product.
The Ninth Circuit says the filter is first-party content and it's Snapchat's software that's the problem.
Snap indisputably designed Snapchat’s reward system and Speed Filter and made those aspects of Snapchat available to users through the internet.
The lawsuit heads back down to the district level, where the lower court originally dismissed this case on Section 230 grounds. The plaintiffs will get another chance to amend their lawsuit to fully flesh out arguments -- namely, Snapchat's allegedly-negligent design -- that weren't fully addressed the first time around.There's a chance another round of litigation may result in a win for Snapchat. The plaintiffs still need to fully connect Snapchat to the reckless driving committed by the victims of the car crash. It may not be enough to simply say the presence of a "speed filter" is responsible for this tragic outcome. After all, Snapchat has millions of users and presumably a majority of those managed to refrain from driving recklessly even with the supposed incentive of being rewarded before Snap removed the "speed filter" option.
The strange flip-flop by Rockstar Games on being open and cool with its fans continues. By way of context and a bit of throat clearing, recall that Rockstar is both the company that whipped out the ban-hammer on Grand Theft Auto 5 players over the use of mods, and the company that paid out money to a modder that fixed that same games long loading times. In addition, Rockstar is both the company that happily used intellectual property to try to silence a documentary while also being the company that enthusiastically embraced gamers making short films out of GTA footage.In other words, when it comes to being open with the gaming and modding community surrounding its games, Rockstar has something of a dual personality. The restrictive side of the company is the one that showed up early in 2021 when a bunch of GTA fans managed to reverse engineer the source code for GTA3 and GTA: Vice City.
Deriving the source code through reverse-engineering was a huge milestone for the GTA hacking scene. Players would still need the original game assets to run either classic GTA title, but with accessible source code, modders and devs could begin porting the game to new platforms or adding new features. That’s exactly what’s happened this past year with Super Mario 64.A week after the code went public on GitHub, Rockstar’s parent company, Take-Two Interactive, issued a DMCA takedown claiming that the reversed-engineered source code contained “copyrighted materials owned by Take-Two.” GitHub pulled the fan-derived code and all its related forks.
Entirely too often, that would be the end of the story. Modders and enthusiasts go out and try to do something cool with a Rockstar game, get their hands slapped, and give it all up. That didn't happen in this case. Instead, one developer out of New Zealand, named Theo, issued a counter-notice to GitHub. Theo's notice explained that, no, the code that had been produced did not contain the original work done by Rockstar. Instead, this was all brand new coding done by these fan-developers to produce essentially the same game. As Theo explained, this new code functions like the original source code, but is not identical.As of now, Theo's fork has been restored to GitHub. And, now, everyone waits to see if Rockstar wants to turn this all into an actual legal battle or not.
While it’s possible Take-Two could challenge Theo’s counter-claim in court at a later date, this is still a nice win for the Grand Theft Auto III and Vice City modding scene. It’s also another reminder that modders, pirates, and fan developers are often the only ones doing the work to keep old games around in an easily playable form.
One would hope Rockstar would see the wisdom in letting this go. It seems hard to imagine how this reverse-engineered code and it allowing modders to try and do new and interesting things with two games that are 20 years old at this point could somehow be a serious threat to Rockstar. More to the point, this is an opportunity for the company to instead embrace and encourage its fans to do these new and interesting things, potentially keeping alive the interest in these games and the franchise as a whole.As to whether Rockstar will see the wisdom in that, well, for now we wait.
We've written about Bill C-10, the Canadian government's attempt to bring online services under the auspices of the country's broadcast regulator, the CRTC, and the way the story about the bill keeps shifting and the promises about what it supposedly won't do keep being broken.Now, work on the the bill has been paused after lawmakers from all four parties voted to ask the Department of Justice for a fresh analysis of its legality under the Charter of Rights and Freedoms. They've also asked for the bill's champion, Heritage Minister Steven Guilbeault, and others to come before the committee and discuss its implications. But Guilbeault has consistently demonstrated a total inability to give clear answers (or, sometimes, any answers at all) to questions people raise about their concerns with the bill. This has been made "crystal clear" (a term Guilbeault has wrongly applied to the muddy and vague bill itself) by some of his responses over the past couple of weeks.First, at the end of April, Guilbeault was pressed for details in an interview on the CBC, with host David Common asking why the exclusion for social media content was removed from the bill and how the Minister can still claim it won't be impacted (you can watch the full interview here). As you can see, his answer — inasmuch as it constitutes an answer — is not very convincing:
Why won't Bill C-10 impact user content on social media? Because they're "not interested" in doing that and it's not the bill's "purpose". Oh and also the bill isn't finished. The fact that an exclusion to specifically prevent regulation of social media was removed is, apparently, irrelevant. The powers granted by the actual text of the bill are, apparently, irrelevant. The idea that regulators would use the regulatory powers given to them by the bill "has no basis in reality". Just trust him.Not convinced? Well, a few days later in the legislature, Guilbeault was pressed by an opposition Member of Parliament on the free expression implications of the bill, and he gave even less of an answer:
Yes, you saw that — Guilbeault immediately pivoted to the completely unrelated topic of reproductive rights and lobbed accusations of hypocrisy at the questioner. Those accusations might not be entirely baseless, but they are entirely irrelevant to this subject that is of extreme importance to all Canadians, not just those on the opposite side of the political aisle from Guilbeault. The Minister also accused another MP of lying about the bill, and was reprimanded in the House of Commons and pressed to withdraw his statement. The Liberal party would very much like it if people viewed opposition to Bill C-10 as a purely partisan effort coming from disingenuous and dishonest opposition politicians, but nothing could be further from the truth.But Guilbeault's evasiveness and foundering doesn't stop there. The latest interview (watch the whole thing here), in which he changed his previous story and stated that the bill will enable the regulation of users on platforms like YouTube, might be the worst one yet:
Guilbeault manages to contradict himself in a matter of seconds. After the understandably frustrated interviewer presses him, yet again, on his promises that the bill won't regulate social media users, he emphatically insists "individuals are exempt from this la-" and can't quite make it to the end of the word "law" before cutting himself off to say "or will be, once it's adopted". Then, in the very next sentence, he says that the bill will apply to individuals who "act like broadcasters" then vaguely asserts that such people are somehow completely distinct from "everyday citizens". As we discussed in the previous post, he then goes on to be completely unable to clarify how this line would be drawn. And then, the next day, he backtracked these comments and made more insistent promises that users will not be regulated.Even Canadians who know very little about the subject of online regulation are noticing how desperate and vague Guilbeault gets every time he's pressed for details, and are unimpressed by his obviously evasive deflections in parliament. Now even MPs from his own party are seeking answers. If the government is going to do what it should and toss out C-10 to start over with a brand new bill, it also needs to find a more capable and trustworthy champion for it.
What a wild trademark ride for Nike over the past few weeks. You will recall that Nike found itself on our pages after its trademark dispute with MSCHF over the so-called "Satan Shoes" being pushed by Lil Nas X. What had all the makings of a very interesting case that would have involved questions about resale rights, free speech, and property rights instead ended in a mostly meaningless settlement that saw MSCHF agreeing to offer to buy back shoes that are now wildly famous and valuable and will almost certainly never be bought back. Almost immediately afterwards, interestingly, Nike found itself on the flip side of the trademark coin with the United States Postal Service, after Nike produced an experimental Air Force 1 sneaker that was clearly inspired by the postal service.
Now, while saying that these shoes were clearly inspired by the USPS would be an understatement, here again we have a situation where a trial could cover all sorts of interesting ground. Would the public be confused by any of this? C'mon now. Does Nike's homage to the USPS somehow diminish the USPOS brand? If anything, I would think the opposite effect would be on the table. When is the last time anyone before Nike considered the postal service cool enough to be honored with a sneaker produced by one of, if not the, most famous athletic apparel and shoe manufacturers on the planet? And, ultimately, what actual harm would be done to the USPS or its trademark rights by Nike's actions?Sadly, we'll never get answers to those questions as Nike has decided to abide by its stance against MSCHF and instead settle the dispute by entering a licensing agreement with the USPS.
The all-white Experimental Nike Air Force 1 footwear are now officially licensed by the USPS, according to a USPS release that was issued by a Nike spokeswoman. The statement also noted, “Any early images of this shoe were not authorized to be released by Nike.”A spokeswoman for the USPS did not respond immediately for a request for comment about the financial terms of the deal.
So, on the one hand, fine, Nike finally lived up to the same standards it laid out in the MSCHF dispute when it was the complaining party. On the other hand, a settlement like this only perpetuates the permission culture the far too often plagues the realm of intellectual property generally and trademark particularly.Wouldn't it have been better for the USPS to simply accept the honor of the homage and get back to the business of delivering mail and spying on all of us?
Summary: An app that allowed users to moderate content residing on their own phones was given the boot by Google after it was determined to be in violation of Play Store rules.The self-explanatory "Remove China Apps" app was developed by Indian engineers residing in Jaipur, India in collaboration with One Touch App Labs. The app was created in response to growing backlash against China during the early days of the COVID-19 pandemic, after early reports showed visitors to a seafood market in Wuhan, China had contributed to the spread of the virus.
India's proximity to China intensified this backlash. How removing apps developed in China was supposed to stop the spread of the virus is best left to the possibly literally-fevered imaginations of the app developers and the millions of Indian users who downloaded the app.However questionable the motivation for the development and deployment of the app, it did allow Android users to easily identify apps developed by Chinese developers and remove them from their phones. However, this secondhand act of personal content moderation was soon hampered by Google, which dumped the app from its Play store, citing violations of its policies. Specifically, Google pointed to its "deceptive behavior" policy. App developers are forbidden from uploading apps that "encourage or incentivize users to remove or disable third-party apps."Decisions to be made by Google:
Should Google control how Android phone purchasers choose to use their phones?
Should Google be more concerned with possible exploitation of permissions to compromise phone users, rather than the ability of users to more closely moderate the content of their devices?
Is an app that openly states it will remove other apps actually "deceptive?"
Questions and policy implications to consider:
Could apps like these serve a useful purpose, like giving Google a heads up on questionable apps/developers?
Does maintaining a blocklist for devs/users achieve the same objective without harming developers who rely on crowdfunding?
Does pushing Android users towards sideloading apps do less to protect users than removing questionable apps that run afoul of rules rarely broken by app developers?
Resolution: Google has refused to reinstate the app. Android users are still able to sideload the app if they wish. The popularity of the app went further than India and the county's kneejerk reaction to developments in Wuhan, China.But Google still has a battle ahead of it. With it commanding nearly 95% of the Indian market, the demand for apps that (correctly or incorrectly) "punish" Chinese app developers remains a growth market.Originally posted to the Trust & Safety Foundation website.
The troubling signs for Google's video game streaming platform Stadia continue. While I have to admit that I had really high hopes for Stadia, nothing about this has been smooth from launch to its current state of, well, who the hell knows what is going to happen to it. From a poor initial reception to questions about failed promises on performance, the conversation about Stadia quickly focused on the platform not offering much in the way of an actual game catalogue to play. Less than a year later, Google made this problem even worse by disbanding its own in-house game developers, leading to more fallout when Stadia could suddenly not support its own internally developed game.And, as I mentioned above, the issues continue. Stadia's product head, John Justice, has left Google entirely.
Another executive has left Google Stadia, and this time it's John Justice, vice president and product head of Stadia at Google. Along with Phil Harrison, Justice was the face of the project, frequently giving interviews and talking to the press. Justice hasn't updated his LinkedIn profile yet, but following a report from The Information, Google told 9to5Google, "We can confirm John is no longer with Google, and we wish him well on his next step."This latest departure is just another sign that Google's game-streaming service is circling the drain. A Bloomberg report from February revealed that the service missed Google's internal sales estimates by "hundreds of thousands" of users. Shortly before the release of that report, Google shut down its in-house game studio, Stadia Games and Entertainment, after less than two years of operation, citing the high cost of operating it. This move led to Stadia's other high-profile departure, the exit of Assassin's Creed co-creator Jade Raymond.
On some levels, this all feels a bit silly. Google has enormous resources from which to draw and game streaming is certainly going to become a massive force in the future of the gaming industry. It appears to certainly be the case that Google flubbed the Stadia launch and let that flub linger. But there is zero reason why Google should let this "circle the drain" if that is in fact what they're doing. Instead, it would be nice if, for once, Google did the un-Google thing and bulwarked a project like this with more resources, seeing it to fruition.And, to be fair to Google, perhaps they do have a coherent plan for Stadia. They lightly hinted as much in a blog post recently.
After shutting down its game studio, Google seemed to hint at a change of strategy for Stadia. Google's blog post said the company is looking for a "path to building Stadia into a long-term, sustainable business that helps grow the industry," which indicates that the current strategy of selling games to customers was not a "sustainable business." The post highlighted Google's "platform technology" that could help studios deliver games "directly" from publishers (as opposed to through the Stadia store?) and that Google saw this as "an important opportunity to work with partners seeking a gaming solution all built on Stadia's advanced technical infrastructure and platform tools."
If I'm reading that word salad correctly, this is hinting that Stadia might be less the gaming industry's version of Netflix and more about building a platform that works with game developers so that they can offer cloud-gaming experiences directly to customers. Perhaps that's the right way to go, though I still can't see why a service like Stadia, were it actually running properly and populated with a good catalogue of games, can't work.In fact, it seems somewhat obvious that that's the future, though it may not be a future run by Google.
Peloton is, as they say, having a rough week. While the company has been something of a pop culture darling for several years, it also got a nice boost from this lovely COVID-19 pandemic we've all been suffering through for more than a year now. Still, no company gets through its full lifecycle unscathed and this week has been a week I'm certain the Peloton folks would love to forget. We'll get started with the less-Techdirt centric part of this, which is that Peloton recently had to recall two of its treadmills after it turns out those treadmills occasionally enjoy eating people, especially very young children.
Peloton has received at least 72 reports of adults, children, pets and/or objects getting dragged under their Tread+ treadmill. In those incidents, 29 children suffered injuries, which included second- and third-degree abrasions, broken bones, and lacerations, the US Consumer Product Safety Commission noted.In February, a father reported to the CPSC that his 3-year-old son was pulled under a Tread+ and trapped. When the father discovered his son and was able to free him, the toddler was pulseless and not breathing, according to the report. Fortunately, the boy was resuscitated, but he “now has significant brain injury.” The boy had tread marks on his back matching the slats of the Tread+, as well as a neck injury, and petechiae (small blood spots) on his face, presumably from blood flow being cut off.When Peloton learned of the “unthinkable” death of the 6-year-old in March, Peloton CEO John Foley sent a note to customers noting the “tragic accident” and highlighting safety warnings for its treadmills. The March 18 note cautioned customers to “keep children and pets away from Peloton exercise equipment at all times.”
Those warnings were glaringly insufficient and the CPSC basically told people to stop using the product. In mid-April, Peloton's CEO informed customers that the company was aware of the CPSC advice, but that the company was not planning to stop selling the treadmills at all. Instead, the company essentially said that if the product warnings were adhered to, there was no problem. It was only this week when the company admitted that this was a mistake in approach and issued a recall for the two treadmills in question. That it should have done so, and subsequently added physical protection to its products to avoid all of this, really should have been painfully obvious once we got to the part where a 3 year old suffered lifelong injuries and treadmarks across his back and another child... you know... died.But the troubles for the company keep on coming. The most recent news is that security researchers found that Peloton had exposed customer data to, well, basically anyone with a little technical know-how and then tried to keep the whole thing silent with an enormously insufficient "fix."
Researchers at security consultancy Pen Test Partners on Wednesday reported that a flaw in Peloton’s online service was making data for all of its users available to anyone anywhere in the world, even when a profile was set to private. All that was required was a little knowledge of the faulty programming interfaces that Peloton uses to transmit data between devices and the company’s servers.
The reporting indicates that this exposure included customer information such as their user IDs, group memberships, workout information, age, gender, weight, and more. You know, probably not the sort of thing customers that set their profiles to private while trying to exercise and/or lose weight would want exposed to anyone that wanted to take a look. The APIs apparently required no authentication. When Pen Test Partners reached out to the company and informed them of all of this, the company immediately acknowledged the information... and then did nothing for two weeks.Two weeks later, the Peloton rolled out a half-fix without informing anyone.
Rather than providing the user data with no authentication required at all, the APIs made the data available only to those who had an account. The change was better than nothing, but it still let anyone who subscribed to the online service obtain private details of any other subscriber. When Pen Test Partners informed Peloton of the inadequate fix, they say they got no response. Pen Test Partners researcher Ken Munro said he went as far as looking up company executives on LinkedIn. The researchers said the fix came only after TechCrunch reporter Zack Whittaker, who first reported the leak, inquired about it."I was pretty pissed by this point, but figured it was worth one last shot before dropping an 0-day on Peloton users," Munro told me. "I asked Zack W to hit up their press office. That had a miraculous effect – within hours I had an email from their new CISO, who was new in post and had investigated, found their rather weak response and had a plan to fix the bugs."
This doubling up of a callous response to the physical and virtual safety of its own customers is a horrible look for Peloton. Again, with the exception of a possibly ill-conceived advertisement campaign a few years back, this company is an absolute media darling with a fair amount of good will built up for itself. Simply by not taking its customer's safety seriously, that good will seems to be pretty seriously at risk.And, it's worth noting, breaches and exposures like this almost always turn out to be more serious than first reported. Maybe that won't be the case this time. Or maybe Peloton's bad time is about to get even worse.
Last month we wrote that Rep. Devin Nunes' favorite lawyer, Steven Biss, who has been filing frivolous, vexatious SLAPP suit after frivolous, vexatious SLAPP suit, was finally facing some sanctions. The specific case did not directly involve Nunes, but rather one of his aides, Derek Harvey, who had filed a ridiculous SLAPP suit against CNN. As we wrote last month, the court had easily tossed the original lawsuit and warned Biss not to file an amended complaint unless he had a credible legal theory. Biss did not have a credible legal theory, but he still filed an amended complaint. And thus, the court issued sanctions, saying that Harvey, Biss and other lawyers would be on the hook for CNN's legal fees.The latest filing in the case is the bill coming due. Harvey and Biss need to pay CNN $21,437.50 in legal fees (and an additional $52.26 in costs and expenses). That might not seem like that much in the grand scheme of things (especially for a lawyer who has claimed his client, Devin Nunes, is owed over a billion dollars for defamation, but it is still real money that someone is going to need to pay -- though it remains an open question as to who is actually going to pay it).There's not much to see in the ruling itself, as it basically says that the fees CNN's lawyers outlined are within the standards that the court's local rules say are "presumptively reasonable." The lawyers admit that they're actually asking for less than they normally charge in order to keep them "reasonable" in the Court's eyes, and the Court basically says "sounds good."It does often seem that lawyers who file tons of frivolous and vexatious lawsuits are able to get away with it for a while, with courts giving them many, many chances and being extremely reluctant to issue sanctions. And, even when sanctions are issued, they tend to be relatively low. However, with such repeat offenders, we've often seen that courts across the country take notice, and once one court has sanctioned this kind of behavior, it can open the floodgates. We'll see what happens in other Biss lawsuits.
Earlier this week we wrote about the absolutely ridiculous coalition of folks who were lobbying against the US supporting a TRIPS intellectual property waiver to support fighting COVID. As we noted, it was totally expected that Big Pharma would object to it, but the surprising thing was seeing Hollywood and the legacy entertainment industry -- an industry that needs COVID to go away to get back to normal -- coming out strongly against the waiver as well. They claimed they had to do so since the waiver would apply to copyright as well, but that's nonsense. The waiver (1) explicitly excluded entertainment products and (2) is expressly limited to "prevention, containment or treatment of COVID-19."On top of that, the waiver process was built into the TRIPS agreement, and if a full on global pandemic that has already killed over 3 million people (and counting) isn't the time to use the waiver, then the waiver is effectively meaningless.Thankfully, the US has now announced that it will be supporting a waiver. USTR Katherine Tai made the announcement:
These extraordinary times and circumstances of call for extraordinary measures.The US supports the waiver of IP protections on COVID-19 vaccines to help end the pandemic and we'll actively participate in @WTO negotiations to make that happen. pic.twitter.com/96ERlboZS8— Ambassador Katherine Tai (@AmbassadorTai) May 5, 2021
This is a global health crisis, and the extraordinary circumstances of the COVID-19 pandemic call for extraordinary measures. The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines. We will actively participate in text-based negotiations at the World Trade Organization (WTO) needed to make that happen. Those negotiations will take time given the consensus-based nature of the institution and the complexity of the issues involved.The Administration's aim is to get as many safe and effective vaccines to as many people as fast as possible. As our vaccine supply for the American people is secured, the Administration will continue to ramp up its efforts - working with the private sector and all possible partners - to expand vaccine manufacturing and distribution. It will also work to increase the raw materials needed to produce those vaccines.
Of course, the details here matter. Tai says the US will support a waiver for vaccines... but did not definitively say if it will support the waiver currently applied for from South Africa and India. It would be just like the US to say it supports the waiver to get everyone who supports the effort to cheer... and then go into negotiations and push for a much, much narrower (and potentially effectively meaningless) waiver. Hopefully that's not the case.Still, just getting the USTR to support any waiver was a big step. This was far from the most likely outcome. The pharma industry is incredibly powerful at the lobbying game, and when you add Hollywood's muscle to it as well, many people felt that the US would refuse to support the waiver. Hell, earlier this week they even got Dr. Fauci to come out leaning against it, saying he was agnostic on the actual waiver, but thought there were better ways to fight COVID (Fauci may be an expert in infectious diseases, but his expertise in intellectual property is... that he holds a few patents of his own). And, of course, Biden has always had a close relationship with Hollywood and has long been a copyright maximalist.And, while Fauci may be correct that this may not be the most important thing for fighting COVID, no one is saying this is the only thing. This is just one of a long list of things, and it will undoubtedly help deal with restrictions in some areas that are costing people lives.In the end, this came down to a simple question: is the best way to protect the global economy to protect the monopoly interests of a few giant companies, or to use knowledge, information, and expertise to help spread better treatments and vaccines faster. The US chose the latter, and it was the only moral choice.
Summary: There is an inherent tension in handling content moderation of world leaders -- especially more controversial ones. If those leaders break the rules on social media, some reasonably call for the content, or the accounts, to be removed for violating policies. Others, however, point out that it is important for the public to be aware of what world leaders are saying, rather than removing and hiding the speech.Twitter has had a public interest exception for tweets from world leaders since at least 2019. Under that policy, Twitter may choose to leave up some content from a world leader that the company admits violates its rules, under the belief that it is more important that the world know what that leader has said. Since 2019, Twitter announced that when it found such content, it would label it clearly -- publicly noting that it violated the company's policies, but was being kept up due to the public interest.The policy was put to the test in October 2020, following the murder of a teacher in a Paris suburb, after the teacher had shown students cartoons of the Prophet Muhammad while discussing the controversy over such drawings. A week later, three people were stabbed in Nice, in southern France. French President Emmanuel Macron described both attacks as Islamist terrorist attacks."Soon after the latter attack, former prime minister of Malaysia Mahathir Bin Mohamad posted a Twitter thread discussing both attacks. While the thread touched on a variety of points, urged people not to scapegoat entire religions, and said he did not approve of the killings, the twelfth tweet raised many concerns by stating: "Muslims have a right to be angry and kill millions of French people for the massacres of the past."Twitter posted its public interest notice on this particular tweet, noting that it violated Twitter's rules about glorifying violence, but Twitter felt that it may be in the public's interest for the tweet to remain accessible.
Many disagreed with this decision, including French officials. France's digital minister, Cdric O, claimed that if Twitter did not remove the tweet, it would make the company an accomplice to a formal call for murder.
Decisions to be made by Twitter:
What qualifies a tweet from a foreign leader that violates policies to remain up under a public interest exception?
Under what conditions would Twitter reverse this policy and remove tweets?
How much context should Twitter take into account regarding the tweets? That is, how much should the attacks in France play into the decision regarding this tweet?
Questions and policy implications to consider:
Whether or not Twitter removes this particular tweet, it is likely to get attention and news coverage. How much does it matter whether or not Twitter removes or labels the particular tweet?
Should world leaders get special treatment by nature of their position and the fact that what they say can impact world events?
Resolution: Twitter only kept the tweet up for a few hours before reversing course and deciding to remove the tweet entirely for violating its rules. Twitter did not comment on why it changed its position on this particular tweet, only telling the media that the tweet was removed for violating its policies on glorifying violence. The company chose not to explain why it initially qualified for a public interest exception, only to be changed later.Originally posted to the Trust & Safety Foundation website.
An attorney in Virginia found out what happens when you make cops angry. According to Cathy Reynolds' lawsuit, the Roanoke PD targeted her for some extra attention after she successfully defended her stepson from murder charges.Prosecutors really wanted Darreonta Reynolds for murder, but security camera footage from the convenience store where the shooting took place appeared to show Reynolds shooting Jean De Dieu Nkurunziza in self-defense when Nkurunziza came after him with a gun. The jury agreed with the defense's case, acquitting Reynolds after ninety minutes of deliberation.This apparently angered someone somewhere in the Roanoke Police Department because this is what happened next. From the lawsuit [PDF]:
Just three days after D. Reynolds acquittal, Defendants targeted Ms. Reynolds for retaliation. Defendants broke down the front door of Ms. Reynolds‘ home after she had offered to let them in, "searched" Ms. Reynolds' home for an individual by destroying her personal possessions, including those entirely irrelevant to a search for a person and left Ms. Reynolds traumatized, knowing that she could be targeted by police for engaging in constitutionally protected activity.
There may be some open dispute about the motivation for these actions, but the actions themselves can't be denied. The raid drew a crowd, some of whom filmed the PD's violent entry into the unlocked house -- the same house Reynolds had left unlocked and invited the officers to search. It also attracted the attention of a local news crew.The lawsuit fills out the details of the raid. And the narrative throws a considerable amount of shade at the participating officer with one impeccably worded paragraph.
Despite both screen door and storm door at the front entrance of Ms. Reynolds' home remaining unlocked, SWAT officers used an entry tool attached to the front of an armored vehicle to puncture the screen door and rip it free from Ms. Reynolds' home in its entirety.In so doing, SWAT officers damaged the screen door beyond repair, heavily damaged the door frame surrounding the front entry, and tore vinyl siding from the exterior of Ms. Reynolds' newly remodeled home.SWAT officers then entered Ms. Reynolds' home by turning the doorknob of the storm door which remained on Ms. Reynolds' home, still unlocked, and pushing the door open in the manner a door is designed to operate.
Nice.But that wasn't the end of the destruction. Remember, officers were searching for a 17-year-old murder suspect, not an easily hidden amount of contraband.
During the search of Ms. Reynolds' home, SWAT officers opened and searched all the drawers in Ms. Reynolds' kitchen and detached Ms. Reynolds' appliances from the walls of her home.SWAT officers flipped the mattresses off all the beds in Ms. Reynolds' home and tore all of the clothes from the closets in the bedroom.SWAT officers tore the cushions off Ms. Reynolds' furniture and emptied the contents of open soda cans onto the floor.
What the fuck.On top of that, Reynolds alleges the warrant affidavit was nothing but a bunch of lies stitched together carelessly to give the PD permission to destroy her house -- a warrant rendered unnecessary by Reynolds' consenting to a search hours earlier. The narrative in that affidavit involves an ATF officer, their CI, and the assumption that the most likely place for a wanted murderer to be hanging out would be at the house of an attorney who had just successfully defended someone from a murder charge.Given the timing and the three hours of apparently gleeful destruction, this certainly looks retaliatory. And, of course, it will be portrayed by the PD as just regular old cop stuff completely unrelated to local prosecutors and PD detectives "losing" a murder case. The end result of these efforts can't be denied. Neither can the violent entry which was captured by citizens' cameras. All that's left is the defensive assertions of "reasonable" officers -- all of which felt tearing apart an attorney's house was the best way to locate a human being.
In a few hours, the Oversight Board will announce its decision regarding Facebook's decision to ban Donald Trump from its platform. As we noted back when Trump was removed from Twitter and Facebook, Trump does not lack in ways to be heard. Indeed, we suggested that he could very, very easily set up his own website with tweet-like statements, and it was likely that those would be shared widely.And... as we wait for the Oversight Board ruling, it looks like Trump has done exactly that. He's launched a new blog site that has short Tweet-style posts, and includes simple sharing buttons so people can post the text to both Twitter and Facebook:
It's not hard to see how that... looks quite like his Twitter feed. For what it's worth, a friend notes that while you can "like" Trump's new missives, you cannot unlike them once you've done so (this is a metaphor for something, I'm sure).The messages on the site go back to March 24, even though the site was just launched today, so it makes you wonder if this is the infamous rumored result of Trump writing down "insults and observations" that he would have said on Twitter if he still had an account.In a video he currently has posted to the top of the site, announcing the site, Trump says that it will be "a beacon of freedom" and "a place to speak freely and safely" (whatever that means). It's unclear if they just mean for Trump himself, or if this is the rumored first pass of his own social network.Either way, if he doesn't let anyone else post to the site, under his own definition of censorship, wouldn't that mean that he's censoring everyone but himself? Or, if he does allow others to post, it will be absolutely fascinating to see what content moderation policies he ends up putting in place. The existing terms of service on the site makes it clear that he wants to be able to moderate everything:
Although Save America has no obligation to do so, it reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Sites at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense. Any use of the Interactive Areas or other portions of the Sites in violation of the foregoing violates these Terms of Service and may result in, among other things, termination, or suspension of your rights to use the Interactive Areas and/or the Sites.
It also notes:
Save America takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Save America liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, profanity or other objectionable content you may encounter.... As a provider of interactive services, Save America is not liable for any statements, representations, or User Content provided by its users in any Interactive Area.
The site also has a long list of content you're not allowed to publish -- much of it that is perfectly legal under the 1st Amendment (even as Trump's friends have been pushing rules that say only unprotected speech can be taken down):
The Sites may include interactive areas or services ("Interactive Areas"), such as forums, blogs, chat rooms or message boards, or other areas or services in which you or other users may create, post, share or store content, messages, materials, data, information, text, graphics, audio, video, or other items or materials on the Sites ("User Content"). You are solely responsible for your use of such Interactive Areas and use them at your own risk. By using any Interactive Areas, you agree not to post, upload, transmit, distribute, store, create, or otherwise publish to or through the Sites any of the following:
User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, discriminatory, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, deceptive or misleading;
User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
Unsolicited promotions, advertising, or solicitations;
Private or personally identifying information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
Viruses, corrupted data or other harmful, disruptive or destructive files; and
User Content which violates the terms of any Save America guidelines, policies or rules posted on the Site or otherwise provided to you; and
User Content that, in the sole judgment of Save America, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or the Sites, or which may expose Save America or its users to any harm or liability of any type.
On the whole, though, this is a good thing. I'm glad that Trump has set up his own site (no matter what happens with Facebook). More people should do that themselves as well, and recognize that then you get to set your own moderation rules and your own system, and don't have to deal with not violating someone else's rules. But it also shows how Facebook and Twitter removing him wasn't censorship -- it was just them saying he needs to find somewhere else to speak.
The Fifth Circuit is the worst place to bring a civil rights lawsuit against law enforcement officers. But that may slowly be changing, thanks in part to the Supreme Court, which has played its own part in making qualified immunity an almost insurmountable obstacle in civil cases. Over the past few months, the Supreme Court has reversed and remanded two cases handled by the Fifth Circuit Court of Appeals, ruling that the lower court's extension of qualified immunity was the incorrect conclusion.This case [PDF] may reflect the Supreme Court's qualified immunity attitude adjustment. Or it just may be that there's no excusing what happened here: a man suffering a mental health crisis being helped to death by San Antonio (TX) police officers.Jesse Aguirre was reported to dispatchers by drivers on a heavily traveled eight-lane highway. Drivers noted Aguirre seemed to be "mentally disturbed" and possibly in danger of being injured or killed since he was walking on the thin media strip dividing the eight lanes of traffic. Officers arrived at the scene and things just kept getting worse for Aguirre. Fortunately, it was all documented by the dashcam on an officer's vehicle.Here's the first "offer" of "help" Aguirre received from a police officer:
Officer Gonzales was the first to arrive. She left her vehicle blocking the left-most eastbound lane and approached Aguirre on foot with her firearm pointed at him, ordering him to “come here” and threatening, “I’m going to shoot you, m-----r-f----r.”
Lovely. Gonzales continued to walk after Aguirre, joined by Officer Morgan (also pointing a gun) and Mendez (pointing a Taser). Aguirre then stopped and placed his hands on the concrete median barrier. All three officers rushed Aguirre, grabbing him and placing him in handcuffs. According to the video, Aguirre did not "visibly resist" being handcuffed. The officers then tossed the handcuffed man over the cement barrier, causing him to land on his head.More officers arrived. And they apparently felt the unresisting man needed more "assistance" dealing with his apparent mental health crisis.
After one or two more officers arrived, they assisted in moving Aguirre from the car hood to the ground onto his stomach next to the median with his hands still cuffed behind him. The video does not show that Aguirre resisted during this maneuver, but instead that he stumbled with the Officers toward the median. After Aguirre was placed prone on his stomach, Officer Gonzales pushed his legs up and crossed them near his buttocks and kneeled forward on Aguirre’s legs, holding them near Aguirre’s bound hands in a hog-tie-like position. Officer Mendez knelt with one knee on the ground and the other on Aguirre’s back, later changing position to hold Aguirre’s shoulders and cheek down against the pavement with his hands. Officer Mendez testified that he was using part of his body weight to hold Aguirre down, thus applying pressure to Aguirre’s back and neck. Officers Morgan and Arredondo then joined Gonzales and Mendez, placing their hands on Aguirre’s arms and back to hold him prone in the maximal-restraint position.
More officers arrived, including a supposed "medical tech officer" (Benito Juarez) but there's nothing on video suggesting he handed out any medical advice or paid any attention to the handcuffed man's condition. One officer noted Aguirre's lips were turning blue but chalked that up to "drug use," rather than the ongoing asphyxiation that was actually occurring.Aguirre remained hogtied face-down on the pavement for more than five minutes. At some point during that time he stopped breathing, but it was only noticed by the large group of officers after he had spent five-and-a-half minutes in that position. Once they realized he had stopped breathing, the officers turned Aguirre over and the "medical tech officer" jogged off to get some medical equipment.But no one really seemed to care.
At this point, the Officers appear to be in good spirits; according to the Plaintiffs, in the dashcam videos, Juarez can be seen smiling as he jogs to his vehicle, and several other Officers likewise appear to be smiling and laughing as they await Juarez’s return around Aguirre’s body. Juarez returned at a walk with his medical bag approximately one minute after he left.
It wasn't until more than four more minutes had elapsed that any officer attempted to perform CPR. But it was too late. Aguirre was dead. The autopsy report confirmed what the dashcams had caught: the restraint method had asphyxiated Aguirre. The conclusion: "due to restraint by police, this case is classified as a homicide."Despite this direct link between their actions and Aguirre's death, the officers wanted qualified immunity. The court refuses to extend it. The amount of force used to restrain Aguirre was excessive. The situation did not call for maximal restraint of a cooperative subject, especially given the criminal act (which is still a stretch) at the center of it.
Defendants do not attempt to show that the severity of any crime committed by Aguirre weighed in favor of the level of force used by the Defendant Officers. In fact, defendants do not articulate any criminal investigatory function justifying their actions, and instead rely on the existence of a threat to the public safety—namely, the potential danger to motorists and himself that Aguirre’s mental disturbance and walking along the median of the eight-lane highway caused. At most, the crime at issue was a traffic offense.[...]This factor thus weighs against it being reasonable or necessary to place Aguirre in the maximal-restraint position for over five minutes.
And the cops can't swing the court their way by providing testimony that was often directly contradicted by their own dashcam recording.
In their declarations below, the Defendant Officers stated that Aguirre was resisting and they feared that he would break away and run into traffic, causing a dangerous collision and potentially dragging one of the Officers with him. But the Plaintiffs’ summary judgment evidence and this court’s own review of the video evidence at minimum raise genuine questions about whether it was objectively reasonable to believe Aguirre was actively resisting or even physically capable of posing an immediate safety threat that would justify the Defendant Officers in using extraordinarily dangerous force by placing and holding him in the prone maximal-restraint position that led to his death.
The court also points out that the fact the officers suspected Aguirre had recently used drugs should have resulted in more caution being taken while restraining him, rather than less. Even the go-to excuse for in-custody deaths -- "excited delirium" -- is supported by plenty of documentation that shows hog tying suspects or holding them down with body weight increases the risk of death.But at the end of it, the thing that undoes these officers' planned exit from this lawsuit is their own video. The court brings it up again in support of its qualified immunity denial.
Although the Officers presented their own version of events that included claims of Aguirre’s resistance—including, for example that he “was resisting and trying to pull away from” the Officers while walking near the westbound side of the median, “was still resisting” when placed on the hood of the car, and “continued to resist by shifting his body around and trying to break free” while pinned against the hood of the patrol car—these averments in contravention of what the police dashcam videos show do no more than reinforce that genuine disputes as to material facts exist at this stage of the litigation.
Clearly established enough, adds the Fifth, even without a case directly on point. The difference between "hog tying" and "maximal prone restraint" isn't enough to make it unclear to these "reasonable" officers whether the use of these nearly identical techniques in situations like this would be "excessive."Whether or not the Supreme Court's recent hints nudged this in the right direction, at least the correct conclusion was reached: restraining someone to death -- especially an unresisting someone -- clearly violates their rights.
Way back in 2016, we discussed how Blizzard was very busy shutting down fan-made and hosted World of Warcraft servers, pretending like intellectual property forced it to do so. At the time, these fan servers were hosting WoW's vanilla experience, mimicking what the game looked like upon first release, rather than then current iteration of the ever-evolving MMORPG. While Blizzard has since come out with a vanilla experience product of its own, at the time, these fan servers were filling a market desire for a product that didn't exist. Rather than figuring out a way to work with these fans, Blizzard just shut them down.And now it's all happening again with Riot, makers of League of Legends, an online game that similarly is ever-evolving. Fans of the game once more created a fan server that hosted the older, vanilla version of the game for those who wanted to play it that way. What makes this situation different, however, is that Riot only sent its C&D notice to the developers after the developers posted online an exchange they had with a Riot representative which took on a very 1920's wise guy tone.
Speaking with PC Gamer, Riot said that it has sent a cease-and-desist request to the developers of Chronoshift after one of them posted an exchange with a Riot employee to Reddit earlier this week. The post showed a back and forth over Discord, during which a member of Riot’s security department named Zed wrote to a Chronoshift developer that Riot’s legal team “isn’t super thrilled about your project unfortunately and is looking for a way to come to a mutually acceptable end to it.”A few lines later, Zed took the conversation in a decidedly bizarre direction, claiming that their team had archives of chat channels the Chronoshift team tried to delete. Zed followed that by saying, “you’ve obviously put a lot of work into Chrono shift, but I assure you that the chrono break is coming.” When the Chronoshift developer asked Zed to dispense with the “scare tactics,” Zed demanded that the developers hand over Chronoshift’s website and source code to Riot, as well as “all identifiable information” they shared with a specific developer. Zed then made the stakes of the situation clear: “Give me what I’m looking for and we won’t sue,” they said. “Refuse and we will.”
Riot told PC Gamer that, while it didn't love the tone of its rep's interactions with the Chronoshift development team, still the request for code and information about the project was a "standard" request. That sort of thing happens so that the rightsholder can figure out exactly to what extent the project was infringing. But it's notable in this case again that Riot doesn't currently have a competing project of its own for this sort of vanilla LoL experience. Despite that, and despite the fact that the Chronoshift team never took a single dime in any way for this project, through donations or otherwise, Riot still shut the whole thing down and pretended intellectual property forced its hand.
In Riot’s letter to the developers, which leaked despite the developers’ apparent wishes, the company also noted that Zed’s grab at the game’s source code was “a standard demand made to all developers engaged in unauthorized activity in order to assist Riot’s security team to understand the precise nature of the project, the manner by which it infringes Riot’s intellectual property, and other rights, and the extent to which the code has been shared or disseminated online.” In other words, it does not appear that the company is planning to use the work of fan developers to form the backbone of its own legacy servers, despite fan speculation to the contrary.In the letter, Riot further explained that it is compelled to defend its “valuable” intellectual property from conduct that “enables and encourages acts of copyright infringement,” which in turn “harm Riot, its business, and ultimately, its employees.” This is similar to what Blizzard said when it infamously shut down popular fan-run WoW server Nostalrius back in 2016. However, Blizzard has seemingly eased off fan-run servers like Elysium in the wake of WoW Classic’s release.
Similar and equally chock full of bullshit. There are plenty of ways Riot could have worked with these dedicated fans on their project to allow it both to come to fruition while also protecting its own rights. But Riot would have to want to have that kind of outlook and interaction.Instead, it sure seems like Riot instead wants to apologize for its own rep's "Nice project you have there, be a shame if anything happened to it" tact. Certainly the rest of the League of Legends fandom should be sitting up and taking notice.
Summary: Craigslist -- the online marketplace that pretty much still looks the way it looked when it went live all the way back in 1995 -- has the same problems every online marketplace has: spammers and scammers.The battle against people seeking to abuse the system has been ongoing since the site's inception, but in 2008, Craigslist implemented a new control measure that temporarily stymied spammers who had found several ways to beat the systems previously employed by the online market.To mitigate spam and limit the effectiveness of scam operations, Craigslist began requiring a phone number for verification on certain postings. This posed a problem for spammers hoping to engage in mass distribution of their "offerings" since it was unlikely any spammer or scammer would want to have their personal phone tied to their illegitimate (if not actually illegal) operations. When an ad was submitted to Craigslist, the site's automated verification process would call the ad poster to relay a one-time code that would permit the listing to be posted.That wasn't the end of this new weapon against spammers deployed by Craigslist. If successfully-posted ads were subsequently flagged by other users as spam/scams, the phone number associated with the ad placement would be blocked.This led to a pitched battle between Craigslist and scammers/spammers who were interested in exploiting the market's reach. A long discussion on a message board frequented by spammers suggested several workarounds to avoid the countermeasures implemented by Craigslist. (To give you some idea how far back this discussion goes, there are recommendations for utilizing pay phones.)Some suggested using a method favored by drug dealers and other criminal conspirators: burner phones. This was an admittedly-expensive workaround for a business model that requires hundreds of views to attract a few paying victims.Others suggest buying subscriptions to online spam enablers -- ones that provided users with tons of disposable numbers without the expense of buying new phones every time a phone number was rendered unusable.Many of these suggestions were rejected by forum members, which suggests spam is only profitable when costs hover near $0. Some members speculated Craigslist was eliminating even more options by rejecting any numbers linked to VoIP services -- the cheapest option for aspiring scammers. No solution appeared to work for everyone, strongly suggesting the phone verification move by Craiglist at least temporarily put a dent in scammers' efforts.Decisions to be made by Craigslist:
Should reputation damage control (i.e., preventing being known as a host for scams/spam) be prioritized over customer growth (limiting entry barriers like phone verification requirements)?
Does Craigslist have the funding and/or personnel to add human moderators to the verification process?
Should users who are willing to verify their identities be given more credence when reporting ads that may lead to blacklisting of other users?
Questions and policy implications to consider:
Does requiring a phone eliminate users create a new barrier for entry that may push legitimate users to competing services?
Does blacklisting numbers linked to reported ads limit the spread of spam? Or can it help spammers willing to report other spam artists to solidify their control of the market?
Resolution: As is the case anywhere goods are sold online, there is no permanent resolution. What worked in 2008 is not nearly as effective a dozen years down the road. But the discussion in this forum shows it did have a severe impact on spam almost immediately, even if its effectiveness was blunted by the advance of time and tech.Craigslist still uses phone verification for certain posts, limiting users to three verification calls a day to each account, which cannot be triggered more than once every five minutes. VoIP numbers are still forbidden to be used for verification calls, which unfortunately impacts some legitimate users with no other phone options.Originally published to the Trust & Safety Foundation website.
We have been banging the drum for some time now that the way the DMCA has been setup and is put in practice is wide, wide open for fraud and abuse. A huge part of the problem is how content owners police the internet in general, with the overwhelming majority of DMCA notices coming from bots and automated systems. Because of the imperfections of this technology, and our allowance of its use, the end result is that copyright policing on the internet is done with a shotgun rather than a scalpel, leading to all manner of mistakes and collateral damage. But even setting those instances aside, the fact is that DMCAing content on the internet requires so little in the way of verification that there is any true ownership of the content rights in question that bogus DMCA takedowns are the norm, not the exception. And, given how little consequence comes along with issuing a bogus DMCA notice, bad actors are practically encouraged to perform this sort of chicanery.This leads to all sorts of subterfuge from bad actors looking to fool the people or, more likely, the automated systems policing any of this. One story from Plagiarism Today serves as a nice primer on just how intricate and annoying these nefarious actors behave. Writer Victoria Strauss tells the story of having one of her online articles removed over a DMCA claim. Strauss was understandably confused, as she was absolutely the original writer of the piece, and so she went digging into the details.
The original post, which was published on September 28, 2018, detailed the implosion of Fiery Seas Publishing. She had written the article herself and couldn’t figure out what was infringing about it. However, when she checked out the “Original URL”, it took her to a post on a blog named Comusa and operated by a person known as Bella Andreas. However, the post was dated to September 3, 2018, 25 days before the real original post went live.Strauss then realized that the plagiarist clearly backdated the post and then filed a DMCA notice to make it look as if she was the infringer. She then went through other posts on the blog (which has been inactive for nearly a year now) and found that every post on the site followed that pattern, copied wholesale from another site and backdated. Strauss further noticed that many of the post dates on her site actually predate the registration of her domain, with some going as far back as 2014 and the domain being registered in 2016.
Worth noting is that "Bella Andreas" has issued at least 10 of these DMCA notices on other publications as well. All appear to have copied the content of others and then backdated the dates of the posts to facilitate the ability to send a DMCA notice.But... why? Well, this looks to be a slightly new take and method for setting up a "spam site" where there is copied content from other publications. The speculation is that the spammer, whatever their actual name is, is trying to generate some traffic to the site through these spam posts so that it can setup more lucrative online advertising programs on the site at a later date.
All in all, it’s a standard spam blog, complete with misspellings in the tag line and name. It doesn’t have ads or outbound links, but if the site was only launched in December 2020. The operator is likely waiting until it is performing better to add them.What makes this case unique is the DMCA notices. Why would a spammer want to send DMCA notices against the original authors and draw more attention to themselves? Though it’s impossible to know for certain, there are a few reasons one might.
Those reasons are basically what you'd expect: attempts to get plagiarized posts considered the "original" by search engines like Google so as to drive up traffic and engagement. The bottom line, however, is that this is a systemized approach for abusing the DMCA process to benefit from the work of others. And it's also wildly clear that the current DMCA process and legislation is toothless for dealing with this sort of fraud and abuse.
The DMCA is in desperate need of reform and one of the things that is needed is an effective system to target those that maliciously abuse it. The upcoming Copyright Small Claims Court may provide some help with that, but it remains to be seen how useful and practical it will be in these cases.
It likely won't be useful at all. That Small Claims Court is both a complete mess of its own and will almost certainly open up yet another front for fraudsters to battle on.The actual fix for this is far simpler. Build some real teeth and consequences into the DMCA process to enforce punishment on those who engage in fraud and abuse. It really should be that simple.