How much of a violation needs to take place before it's a Constitutional violation? It's a trick question, at least in the hands of the right judge. With the wrong judge, a minimal violation is considered excusable, or at least salvageable by any number of Fourth Amendment exceptions.But with the right judge, any Fourth Amendment violation is a Fourth Amendment violation, no matter how small or how fleeting it is. That's how we get to this decision [PDF], handed down by the Supreme Court of Idaho, which not only calls on cops to do better with their drug dog handling, but also tips the hat to recent decisions involving parking enforcement measures. (via FourthAmendment.com)Here are the facts of the case:
In March 2019, police officers stopped Howard for a traffic violation and took him into custody after discovering an outstanding warrant for his arrest. Officers then brought in a drug-sniffing dog (“Pico”) to sniff the exterior of the car. Pico alerted to the presence of illegal drugs, and a subsequent search of the car uncovered methamphetamine, heroin, and drug paraphernalia. Neither Howard nor his passenger was the registered owner of the vehicle, and police contacted the owner who took possession of the vehicle at the scene.After prosecutors charged Howard with drug trafficking offenses related to the heroin and methamphetamine, Howard moved to suppress all evidence arising from the search of the car. During the hearing on the motion, Howard argued Pico momentarily put his nose through the open window of the car before giving his final, trained response to indicate the presence of illegal drugs, and that this was a trespass constituting an unlawful search in violation of his Fourth Amendment rights under United States v. Jones, 565 U.S. 400 (2012). The only witness testifying at the hearing was Officer Amy Knisley, Pico’s handler. A portion of Knisley’s body camera footage showing the dog sniff was also admitted into evidence.
The district court was fine with Pico's momentary intrusion and denied the motion to suppress. It said that because the sniff was of the dog's own volition, it couldn't possibly have been a rights violation.
The district court denied Howard’s motion to suppress because it found the Court of Appeals opinion in State v. Naranjo, 159 Idaho 258, 359 P.3d 1055 (Ct. App. 2015), was controlling. In Naranjo, the Court of Appeals held that a drug dog’s sniff through the open window of a vehicle had been “instinctual”—as opposed to facilitated or encouraged by the police—and therefore was not a “search” for the purposes of the Fourth Amendment.
The challenge of the search pointed to the Supreme Court's decision in Jones, which found intrusions -- however minimal -- into private property were unconstitutional without a warrant or any applicable warrant exception. In that case, officers placed a tracking device on a parked car. That minimal intrusion (in service of a greater, more extended intrusion) was impermissible.Idaho's Supreme Court agrees with the defendant. Jones is controlling here. The intrusion may have been minimal but it was still an intrusion.
We agree with Howard that Naranjo is inconsistent with Jones and that Pico’s entry was a search. Jones is clear that for purposes of the Fourth Amendment, a search occurs when the government trespasses in order to obtain information.
Though not squarely on point, and certainly not binding on this Court, we find that the Sixth Circuit Court of Appeals decision in Taylor v. City of Saginaw is instructive. In Taylor, the city enforced time limits for parking by tire chalking, i.e., placing chalk marks on the tread of car tires—marks that rub off as soon the cars are moved—to determine whether the cars have remained in place longer than allowed. The plaintiff, apparently a frequent recipient of parking tickets, alleged that the practice violated her Fourth Amendment rights. The city responded, in part, by arguing that chalking was not a search for purposes of the Fourth Amendment. The Sixth Circuit disagreed. It held that chalking, though a slight interference with private property, was nevertheless an interference for the purpose of obtaining information and therefore a “search” under Jones.
This was the same conclusion a California federal court reached last spring. A tire mark is a search. And, if that's upheld on appeal, there will be controlling precedent in Idaho (the Ninth Circuit, which also covers California) that aligns with the findings here.And that finding is that it isn't the means or methods or length/depth of the intrusion. It's the intrusion that matters.
Like the marking of chalk on a car tire’s tread, a dog’s nose passing through an open window is a minimal interference with property. But the right to exclude others from one’s property is a fundamental tenet of property law, and we see no room in the Jones test for a de minimis exception.
That's the baseline. And the court says the government can't save its search by claiming the drug dog was in the process of alerting prior to the intrusion into the vehicle. The officer's testimony stated that the dog had not shown a "final" alert prior to sticking its nose through the window. Only after that did the dog sit, something the officer said was an "alert."
When the statements of Officer Kinsley’s belief are excluded from our consideration of her testimony, these are the facts that remain: (1) Pico is a certified drug dog trained to sit or lie down to indicate the presence of drugs; (2) Pico did not sit or lie down before entering the car; (3) at least sometimes Pico “freezes” or tries to “cheat the system” by looking at the officer for his reward before indicating as he has been trained to do; (4) Pico froze and looked back at the officer before entering the car. From these facts, we cannot know whether Pico’s freezing and looking back was a reliable indication that narcotics were present, and we cannot determine whether Officer Kinsley’s subjective belief was objectively reasonable. For instance, how often does Pico freeze or look back at the officer before giving a final, trained alert? Does Pico only freeze when in odor? Does Pico only try to “cheat the system” when narcotics are present?
That's the problem with four-legged probable cause. It's mostly up to the officer interpreting the dog's acts. And, without the benefit of dashcam or body camera recordings, these subjective takes become part of the official record and are difficult to challenge. This recounting of events raises enough questions about the dog's actions that the court is unwilling to call any of what's described above "probable cause."This decision says the government can't have the evidence it obtained with the aid of an intrusive canine. And that means it can't have its conviction either. Going forward, cops in Idaho are going to need actual probable cause -- not just inconsistent dogs -- before searching people's cars during traffic stops.
Eddy Grant, responsible for the banger Electric Avenue, has made it onto our pages a couple of times in the past, most recently over a copyright spat with Donald Trump. At issue in the lawsuit was the Trump campaign sending around a video of a "Trump/Pence" train zipping by, with a Biden hand-car chugging behind it. While there were lots of references to Biden sniffing people's hair (seriously, what is that?) and other silly jabs, the real problem is that the entire video has Electric Avenue playing as its soundtrack. Eddy Grant didn't like this, of course, and sued over it. Trump tried to get the suit tossed on fair use grounds, arguing that the use of the song was transformative... but that isn't how it works. Simply using the song in a way the author didn't intend doesn't make the use transformative. Were that the case, every commercial advertisement out there would feature copyrighted songs as backgrounds to selling all manner of things. Again, not how it works and the court refused to toss the suit in response to Trump's Motion to Dismiss.And so now this whole case moves forward and Trump is once again asserting fair use in his answer to the complaint... but with a twist! More on the twist in a moment, but first the fair use argument.
Former President Trump denied Eddy Grant's copyright infringement claims in a formal response submitted to the court late Monday night."Defendants deny that they have willfully and wrongfully infringed Plaintiffs' copyrights," the response said. "Plaintiffs' claims against Defendants are barred, either in whole or in part, by the doctrines of fair use and/or nominative use."
So pretty much the same fair use argument that was made in Trump's initial motion to dismiss (embeded below). This argument almost certainly won't work. And, while I don't find myself arguing against fair use very often, this one doesn't make a whole lot of sense. The video used a significant portion of the song and the song was used in nearly the entire video in question. And, while Trump asserted the video was parody, it's not parody of Electric Avenue. That's the point of the parody defense: the use of a work in order to satirize it. That isn't what's happening here. The target of the satire is Joe Biden, not Eddy Grant or his song.It seems like Trump's legal team might realize that argument is a loser as well, given that the added twist I mentioned earlier.
The former president also asserted Grant cannot sue him because of what Trump's attorneys called "Presidential absolute immunity."
So, here's the thing: someone really needs to get Donald Trump in a room, sit him down, and explain to him that he cannot simply shout "presidential immunity!" every time something in his life doesn't go the way he wants to make it magically go away. This immunity claim is something he's using with wild abandon, including in far more serious realms like in denying requested documents for the January 6th committee.But this is far more absurd. It wasn't Donald Trump, the President, that put out this video. Rather, it was the Donald Trump campaign that did so and that campaign very much does not qualify for presidential immunity, "absolute" or otherwise. Immunity for presidents from prosecution or suit typically ends when that person is no longer president and, last time I checked, the subject of the mockery in the video is president now, not Donald Trump.
"Given the court's recent favorable determination, there are very few issues that remain to be resolved. We are confident that our clients' rights will ultimately be fully upheld and look forward to Mr. Trump fully explaining his actions," Grant's attorney, Brian Caplan, said in a statement provided to ABC News.
That's the sound of a lawyer quite confident in his case. And it's frankly quite hard to argue with him.
Word to the wise, make sure to diligently check out the reputation of whomever you're ordering from whenever you decide to use Paypal as the payment method. I didn't, and what I received wasn't even close to what I ordered. And I've since learned that this is a growing scam category... entice orders of things that appear to be bargains, but still cost between $50-$100, deliver a toothpick in an envelope, then because there's a delivery notification that can be cited by Paypal, they deny a request for a refund, and there's nothing the scammed customer can do about it, because you're shielded from any contact information beyond the Paypal email address of the scammer.
I suggest never using the scam artist enabling Paypal shysters again.
It takes a special kind of hubris to appropriate music and lyrics not just from another artist, but another cultural genre of artists, and then threaten someone else for "stealing" what you've "stolen". Meet Barry Mann. If that name doesn't sound terribly familiar to you, fear not, as he is known for the 1961 hit song Who Put The Bomp? and other songs from decades ago. And if that song title doesn't sound familiar, you've almost certainly heard the song. To jog your memory, it includes such made up words as "ramalama ding dong". See, those are called vocables: made up syllables used to effectuate rhythmic form rather than meaning. You can listen to the song below to get an idea of what I'm talking about."The Mann", which is what I'll be calling him from here on out, is still kicking at 82 and apparently is learning a new hobby: threatening other artists with copyright claims. He and/or his legal representatives apparently sent a cease and desist notice to Le Tigre, a feminist punk band, over a song called Decepticon. See, Decepticon takes a couple of lyrics found in The Mann's song and repurposes them to become a feminist anthem. For that and one additional reason that we'll get into later, Le Tigre filed suit for declaratory relief of The Mann's copyright infringement claim. Here is Decepticon so you can go hear for yourself just how copyright-infringe-y this all isn't.Between the suit and the song itself, you should notice a number of things. First off, you may be thinking to yourself that this song sounds decidedly retro for punk music. That's because the song came out twenty years ago and has long been Le Tigre's most famous song. Why a lawsuit is only being filed now is an open question. In addition, the use of the lyrics is minimal and the song itself is nothing remotely like The Mann's song.
Additionally, even if Defendants had a legitimate claim to ownership of the small portion of Bomp lyrics at issue, they nonetheless have no copyright infringement claim against Le Tigre or its licensees because Le Tigre’s transformative use of those lyrics in Deceptacon is an emblematic case of fair use under Section 107 of the Copyright Act, 17 U.S.C. § 107.
Transformative use? Let's get into that. You may also have noticed that the lyrics are actually slightly different. For instance, the lyric to start the song is no longer "who put the bomp", it's "who took the bomp".
Deceptacon’s reference to and inversion of the Bomp lyrics at issue delivers a stinging indictment and parody of Bomp, which is clear from a comparison of the songs’ lyrics and sharply contrasting musical styles, as critics have noted over the decades. Bomp, written from a man’s perspective, begins with the statement: “I’d like to thank the guy who wrote the song that made my baby fall in love with me.” Bomp’s singer asks, “Who put the bomp in the bomp bah bomp bah bomp?” and “Who put the ram in the rama lama ding dong?” Deceptacon, by contrast, is a feminist anthem that begins with the proposition that music “is sucking my heart out of my mind” and continues to ask, “Who took the bomp from the bomp-a-lomp-a-lomp?” and “Who took the ram from the rama-lama-ding-dong?” Thus, Le Tigre’s use of the lyrics that appear in Bomp instills those lyrics with a new meaning that is directly at odds with and a clear criticism of the message in Bomp, which is precisely the sort of fair use that Section 107 of the Copyright Act is designed to protect.
But parody and criticism of what? Well, there certainly is the feminist angle to it, yes, and Le Tigre is well known for creating that sort of stinging lyrics within its songs. But not just the feminist critique. Remember the change from "put" to "took"? Well...
The Bomp lyrics putatively at issue are mainly comprised of song titles and non-lexical vocables (nonsense syllables used in music). But Mr. Mann did not create these vocables or song titles; rather, it appears that Mr. Mann and his cowriter copied them from Black doo-wop groups active during the late 1950s and early 1960s. Specifically, it appears that Mr. Mann took “bomp-bah-bomp-bah-bomp” from The Marcels’ distinctive version of “Blue Moon,” which sold over a million copies, and “rama lama ding dong” from the Edsels’ then-popular “Rama Lama Ding Dong.” In short, the Bomp lyrics at issue are not original to Mr. Mann, and Defendants have no legitimate copyright claim in them.
And that is how this all comes full circle, in a way. The Mann threatened a punk feminist group over a song it created with lyrics designed to specifically criticize how he appropriated those lyrics from black doo-wop groups in the 60s. Like I said, that takes a nearly impressive amount of hubris.As far as copyright cases go, this should be an easy one for the courts.
One of the more common violations of the First Amendment is viewpoint discrimination. When entities run into speech they don't like, they often steamroll Constitutional rights in their hurry to shut this speech down.The government is allowed some time and place restrictions on speech, but it is very limited in its options. To expand these options, government entities will often say things about "public safety" to justify their incursion on people's rights. These justifications rarely justify the overreach.Maybe these things happen because governments (incorrectly, in some cases) assume those whose rights have been abridged won't sue. Maybe they happen because governments assume nebulous "public safety" concerns won't be examined thoroughly if they are sued. Or maybe they just assume that, because they're using the public's money to both violate rights and defend against accusations of rights violations, none of this really matters because it isn't any particular government employee's money at stake.That brings us to this case [PDF], where a Maryland federal court has ruled the government had no justifiable reason to shut down a "prayer rally." What it did have were some unjustifiable reasons, which were mainly related to the speakers and the kind of speech the government expected to be uttered… I mean, if it hadn't unconstitutionally shuttered the event. (via Courthouse News Service)Here's some brief background by the court, which doesn't highlight the most likely trigger: alt-right figurehead Milo Yiannopoulos, who has been banned from [name a social media platform].
St. Michael’s, a non-profit organization, “is a vocal critic of the mainstream Catholic Church,” including the United States Conference of Catholic Bishops (“USCCB”). Plaintiff seeks to hold the prayer rally and conference to criticize the Church, particularly with respect to child sexual abuse committed by members of the clergy, and it wants to do so on a date that coincides with the USCCB’s Fall General Assembly. The USCCB plans to meet from November 15 – 18, 2021 at the Waterfront Marriott Hotel (“Hotel”), a private facility located near Pier VI.On or about August 5, 2021, weeks after plaintiff had paid a $3,000 deposit to SMG for use of the Pavilion, SMG, on instruction of the City, notified St. Michael’s that plaintiff could not rent the Pavilion. The City cited safety concerns linked to some of the people who were identified as speakers at the event.
Given the average government's "for the children" protestations whenever it plans to violate rights, you'd think a rally criticizing a religious entity infamous for sexual abuse of children would be right up its rhetorical alley. You'd assume wrong -- not if its "allies" include people the elected officials of Baltimore find noxious. (That list includes Yiannopoulos, former Trump advisor Steve Bannon, and Newsmax commentator Michelle Malkin.)St. Michaels sued, alleging First Amendment violations. The court (unsurprisingly) agrees. First, it notes a similar rally by the same group in 2018 which resulted in no acts of violence or any other threats to public safety. Nevertheless, city officials insisted this time would be different.
Michael Huber, Mayor Scott’s Chief of Staff, avers that the discussions between SMG and St. Michael’s “came to the attention” of the City in July 2021. In particular, the City learned that St. Michael’s planned a rally featuring speakers “known for encouraging violent actions that have resulted in injuries, death, and property damage.” In the City’s view, some of the speakers would “provoke a strong reaction and raise the potential for clashes and disturbances,” given the “very real potential [that the speakers] would use [the rally] to incite violence and public disruption.”
While it's true some of the threat matrix may have changed following an unprecedented attack on the Capitol building in Washington, DC by so-called conservatives apparently hoping to negate a peaceful presidential election, no previous experience with this group should have led city officials to this conclusion. And, while the forum being rented was privately-owned, the city has some say in the issuance (and, in this case, rescinding) of contracts. When it interceded -- for internally inconsistent reasons -- it violated the plaintiff's rights.
Without question, the City reacted to a perceived safety concern arising from past use of inflammatory remarks by some of the rally speakers. In thwarting the rally, the City essentially invoked or relied on the heckler’s veto. And, in doing so, it exercised complete, unfettered discretion; it acted on an ad hoc basis, without any standards. Further, it has presented somewhat shifting justifications for its actions, with little evidence to show that the decision was premised on these justifications.As to the matter of discretion, the City apparently has unbridled discretion to determine whether, when, and how to intervene in bookings of the Pavilion. The record before the Court indicates that the process used here was entirely ad hoc. After plaintiff’s plans came to the attention of the City, the City decided to intervene with SMG, requiring SMG to terminate negotiations with St. Michael’s. No policies, guidelines, or procedures have been brought to the attention of the Court providing any factors or systematized approach governing the City’s actions here. As far as the Court is aware, none exist.
As the court notes, the main concern the city had appeared to be about those who would show up and protest the St. Michael's protest, rather than the supposed "incendiary" participants working with St. Michael's. That only adds to the list of ways the city violated the First Amendment.
The City’s invocation of a heckler’s veto also raises serious concerns that its decision was motivated by viewpoint discrimination. Huber cited the prospect of counter protestors when explaining the City’s decision. And, at the hearing, counsel for the City placed considerable weight on the City’s concerns as to counter protestors and the disruption and potential violence that might ensue. In other words, the City seems to have based its decision on the anticipated reaction of counter protestors, which is precisely the “persistent and insidious threat[s] to first amendment rights” discussed in Berger, 779 F.2d at 1001…This is not an acceptable justification for regulating speech.
And more along those same lines:
As the Ninth Circuit put it in Seattle Mideast Awareness Campaign, although this concern might receive less weight outside of a traditional or designated public forum context, it is still relevant when “used as a mere pretext for suppression expression” based on viewpoint. This includes, for example, “where the asserted fears of a hostile audience reaction are speculative and lack substance.”Such is the case here. The City cannot conjure up hypothetical hecklers and then grant them veto power.
St. Michael's gets its injunction against the City of Baltimore. The show will go on. The City violated the group's rights when it decided the people who didn't secure the venue were so potentially dangerous the speakers who rented the venue shouldn't be allowed to speak. A heckler's viewpoint is indistinguishable from viewpoint discrimination in situations like these. The city decided in favor of one viewpoint (the counterprotesters [a.k.a., the hecklers] and decided the other viewpoint (St. Michael's) had no right to be heard.
Summary: Snapchat debuted to immediate success a decade ago, drawing in millions of users with its playful take on instant messaging that combined photos and short videos with a large selection of filters and "stickers." Stickers are graphics that can be applied to messages, allowing users to punch up their presentations (so to speak).Snapchat’s innovations in the messaging space proved incredibly popular, moving Snapchat from upstart to major player in a few short years. It also created more headaches for moderators as sent messages soared past millions per day to billions.Continuing its expansion of user options, Snapchat announced its integration with Giphy, a large online repository of GIFs, in February 2018. This gave users access to Giphy's library of images to use as stickers in messages.But the addition of thousands of images to billions of messages quickly resulted in an unforeseen problem. In early March of 2018, Snapchat users reported a search of the GIPHY image database for the word "crime" surfaced a racist sticker, as reported by Josh Constine for TechCrunch:
“We first reported Instagram was building a GIPHY integration back in January before it launched a week later, with Snapchat adding a similar feature in February. But it wasn’t long before things went wrong. First spotted by a user in the U.K. around March 8th, the GIF included a racial slur.” — Josh Constine, TechCrunch
Both platforms immediately pulled the plug on the integration while they sorted things out with GIPHY.Company Considerations:
What measures can be put in place to prevent moderation problems from moving from one platform to another during cross-platform integration?
What steps should be taken prior to launch to integrate moderation efforts between platforms?
What can "upline" content providers do to ensure content moving from their platforms to others meets the content standards of the "downline" platforms?
What procedures aid in facilitating cross-platform moderation?
Which party should have final say on moderation efforts, the content provider or the content user?
“We’ve been in close contact with GIPHY throughout this process and we’re confident that they have put measures in place to ensure that Instagram users have a good experience” an Instagram spokesperson told TechCrunch.
For several years now, we've been beating the idea that content at moderation is impossible to get right, otherwise known as Masnick's Impossibility Theorem. The idea there is not that platforms shouldn't do any form of moderation, or that they shouldn't continue to try to improve the method for moderation. Instead, this is all about expectations setting, partially for a public that simply wants better content to show up on their various devices, but even more so for political leaders that often see a problem happening on the internet and assume that the answer is simply "moar tech!".Being an internet behemoth, Facebook catches a lot of heat for when its moderation practices suck. Several years ago, Mark Zuckerberg announced that Facebook had developed an AI-driven moderation program, alongside the claim that this program would capture "the vast majority" of objectionable content. Anyone who has spent 10 minutes on Facebook in the years since realizes how badly Facebook failed towards that goal. And, as it turns out, failed in both directions.By that I mean that, while much of our own commentary on all this has focused on how often Facebook's moderation ends up blockingnon-offending content, a recent Ars Technica post on just how much hate speech makes its way onto the platform has some specific notes about how some of the most objectionable content is misclassified by the AI moderation platform.
Facebook’s internal documents reveal just how far its AI moderation tools are from identifying what human moderators were easily catching. Cockfights, for example, were mistakenly flagged by the AI as a car crash. “These are clearly cockfighting videos,” the report said. In another instance, videos livestreamed by perpetrators of mass shootings were labeled by AI tools as paintball games or a trip through a carwash.
It's not entirely clear to me just why the AI system is seeing mass shootings and animals fighting and thinking its paintball or carwashes, though I unfortunately have some guesses and they aren't fun to think about. Either way, this... you know... sucks! If the AI you're relying on to filter out extreme and violent content labels a mass shooting as a trip through the carwash, well, that really should send us back to the drawing board, shouldn't it?It's worse in other countries, as the Ars post notes. There are countries where Facebook has no database of racial slurs in native languages, meaning it cannot even begin blocking such content on the site, via AI or otherwise. Polled Facebook users routinely identify hate on the platform as its chief problem, but the company seems to be erring in the opposite direction.
Still, Facebook’s leadership has been more concerned with taking down too many posts, company insiders told WSJ. As a result, they said, engineers are now more likely to train models that avoid false positives, letting more hate speech slip through undetected.
Which may actually be the right thing to do. I'm not prepared to adjudicate that point in this post. But what we can say definitively is that Facebook has an expectations setting problem on its hands. For years it has touted its AI and human moderators as the solution to the most vile content on its platform... and it doesn't work. Not at scale at least. And outside of America and a handful of other Western nations, barely at all.It might be time for the company to just say so and tell the public and its representatives that this is going to take a long, long while before the company gets this anywhere close to right.
Streaming options for professional and major college sports has long been a fascination of mine. That is in part because I'm both a fairly big fan of major sports and a fan of streaming over the wire instead of having cable television. My family cut the cord a couple of years back and hasn't looked back since, almost entirely satisfied with our decision. The one area of concern here continues to be being able to stream our local sports teams, as most of the pro sports leagues still have stupid local blackout rules. MLB.TV, the league's fantastic streaming service, has these rules too. While using a DNS proxy is trivially easy, easier would be the league coming to terms with modernity and ending the blackout rules. Notably, MLB did this in 2015 when it came specifically to Fox Sports broadcasts for 15 teams, but as I noted at the time:
But don't think for a single moment that that's where it ends. Even if MLB can't get similar deals in place for the other half of teams in the league, which would fully free up the fantastic MLB.TV product for local streaming, any modicum of success that Fox has with this program will be immediately adopted by the other broadcasters. They really don't have a choice. Cord-cutting isn't going away and it's been professional and college sports that have long kept subscribers tethered.
It took longer than I expected, but it's finally happening. Reports indicate that MLB is currently planning to rollout an all-league streaming option that would end local blackout rules entirely, even for cord-cutters. And, in case you thought this was going to be an MLB-only thing, its bringing the other major leagues along for the ride.
The web-based service — which could address a decades-old annoyance for baseball fans that some have partly blamed for the league’s steadily declining viewership — could launch as early as the 2023 season, a person with direct knowledge of the negotiations said.The National Basketball Association and the National Hockey League are also considering partnering with MLB on the new streaming service, sources said. Insiders say subscription rates would vary by geographic market and could be between $10 and $20 a month — well below the monthly cost of most cable-TV packages, which can easily stretch past $100.
As you might imagine, the cable companies are not thrilled with this. After all, while cord-cutting has been a steady force in the American media landscape, the dam has yet to burst and that is almost certainly due to the appetite for live sports broadcasts that still sit behind complicated cable television deals these leagues have with broadcast partners. So how is this going to work?Well, MLB is doing what I suggested almost a decade ago: making the streaming broadcast identical to the television broadcast and giving broadcast partners some of the revenue, while also giving the broadcast commercial advertisements the additional reach of the stream.
Sources said MLB Commissioner Rob Manfred could end up offering cable-TV giants a piece of the streaming revenue to compensate for potential subscriber losses. Manfred’s pitch is that cable TV won’t lose many subscribers, as MLB is mainly targeting younger customers who have already cut the cord, sources said. The cable companies don’t have streaming rights but could retaliate by paying less to broadcast games if they don’t like the bargain, sources said.As for the teams, MLB’s streaming service would pay them based on viewership in their local markets. One MLB owner said the league has kept its owners appraised, and believes it has general support though no vote has been taken. Indeed, the MLB and team owners are concerned over dire forecasts for viewership. Roughly half of Americans will not be watching cable or satellite TV within a few years, according to Pew Research Center annual surveys.
There is no firm deal yet, as MLB is currently working with broadcast partners and its teams to finalize the plan. Sinclair Broadcasting is a major piece of gum in the works, because of course it is. Sinclair has the broadcast rights for nearly half the league's teams and is putting up a stink, though MLB's strategy appears to be repeatedly pointing out that Sinclair may be in such dire financial trouble such that it can't be trusted to continue operating far into the future.
At first, sources said Sinclair tried to persuade MLB to allow it to control the service for several years before handing the reins to MLB. But the league wasn’t having it, citing Sinclair’s financial condition and raising concerns that the company won’t be able to spend the money that’s needed for high-quality broadcasts, sources said.In 2019, Sinclair’s Diamond Sports subsidiary paid $9.6 billion for the Fox Regional Sports Networks, since rebranded to Bally’s, giving it exclusive rights to the 14 MLB teams, 16 NBA teams, and 12 NHL teams. It borrowed a staggering $8 billion to fund the deal, sources said. Since then, Dish, Hulu and YouTube TV have stopped carrying the Bally’s RSNs, even as revenue from existing distribution deals has been slammed by cord cutting and subscriber declines. An August Moody’s Investors Service report found that Sinclair “now has an unsustainable capital structure given its very high leverage and weak liquidity.”
Don't threaten me with a good time, Sinclair.Regardless, everything about these plans represents a massive step in the right direction. Sports leagues will be eyeing how this goes with great interest. When it goes well, as it almost certainly will, this could be the start of a massive change in how sporting events are consumed by the public.And the end of cable television as we know it.
Another attempted government theft has been thwarted by the courts. The Ninth Circuit Appeals Court has ruled in favor of a couple whose vehicle was carjacked by Arizona law enforcement officers while their son used it for an extended road trip.Here's AZ Central's summary of the events leading to the lawsuit the Ninth has revived:
Terry and Ria Platt had loaned their 2012 Volkswagen Jetta to their son in the spring of 2016 for him to use on a vacation. Their son was driving from the East Coast back to Washington on Interstate 40 when an Arizona Department of Public Safety trooper stopped him in Navajo County for having tinted windows.Members of the Navajo County Drug Task Force had a K-9 unit search his car and found a small amount of marijuana for personal use and over $31,000 in cash, according to court documents. Law enforcement seized the vehicle and money on suspicion they were being used or planned to be used for illegal purposes. But none of them were ever charged with a crime.
This is pretty much the standard origin story for forfeitures: cops stop car, find some reason to search it, and walk off with whatever cash they can find. In this case, they decided to take the car, too.But there are few additional wrinkles here, which show just how much the incentives of forfeiture have perverted the process. The Appeals Court decision [PDF] notes the car's owners tried to challenge the forfeiture using the processes made available by the state, but that was brushed aside by the entity directly profiting from the seizure.
After receiving [a forfeiture] notice, persons with an interest in property subject to forfeiture proceedings face a choice between two avenues for protecting their property rights. They may “file either a claim with the court . . . or a petition for remission or mitigation of forfeiture with the attorney for the state” within thirty days of the notice, “but may not file both.” If a property owner does not pursue either option, then the state’s attorney may proceed in court with “uncontested forfeiture.” In uncontested forfeiture proceedings, the state need only establish probable cause to believe that the property is subject to forfeiture; it need not prove the factual basis for forfeiture by clear and convincing evidence, as required for contested forfeiture proceedings.
The Platts chose the first option: filing a petition for remission or mitigation. This is supposed to be followed by the government conducting an investigation of the forfeiture (to obtain more proof that the seized property is tied to illegal activity) and issuing a written declaration, which then starts the clock (30 days) on the filing of a counterclaim by the property's owners.That didn't happen here. The county's "asset forfeiture attorney," Jason Moore, read the Platt's petition and basically said it never existed.
Here, the Platts allege, no written declaration of forfeiture issued. Instead, Moore unilaterally determined that the petition was defective. Without notifying the Platts of any defect or affording an opportunity to correct it, he proceeded as though the forfeiture were uncontested, representing to the Superior Court in his application for forfeiture that “no timely claim or Petition for Remission has been filed.”
It wasn't until the Platts responded to this obvious bullshit with a claim of property in an Arizona court that the forfeiture attorney finally said what was wrong with the petition he had ignored -- a statement prompted by this new threat to his "uncontested" forfeiture.
[The] Platts proposed to construe Moore’s purported application for forfeiture as the written declaration of forfeiture that should have been issued in response to their petition, which would have afforded them thirty days within which to file a claim against the property. Moore promptly moved to strike that claim, asserting for the first time that the Platts’ petition for remission or mitigation was defective because, although it had been signed, it did not state that it had been “signed under penalty of perjury.”
Sick of all of this (and now represented by the Institute of Justice [working pro bono]), the Platts sued the state, county, and the attorney. They sought a declaration the state's uncontested forfeiture program violates due process rights. They also alleged Jason Moore himself had violated their rights with his attempted forfeiture.Most of those claims did not survive the district court's review of the case. But the "forfeiture attorney" is still potentially on the hook for his actions, which included returning the vehicle to the Platts five months after it was impounded and, more damningly, two weeks after he was sued. So is the state, which will have to continue to defend its forfeiture program, which obviously can be very easily abused.The court says the program in Arizona has some serious problems. Specifically, it allows this exact chain of events to occur.
This obvious vulnerability in Arizona’s forfeiture regime to a procedural due process challenge cannot be mitigated by interpretative sleight-of-hand. Even if we were to interpret Arizona’s command that those who choose to file a petition “may not file” a claim until a declaration of forfeiture has issued as limited to those who file valid petitions, see A.R.S. § 13-4309(2), it would remain the case that a state’s attorney could unilaterally deem a petition invalid without alerting the petitioner.
The claim against the law is revived. So is the "biased adjudicator" claim against the government's attorney, since he was directly involved in attempting to short-circuit an already deficient process to gain ownership of the seized vehicle -- something his office would directly benefit from.
The district court’s assessment that Moore’s conduct did not delay the return of the Platts’ car likewise does not affect our standing analysis. The district court concluded that the Platts “filed their claim more than a month before the September 20, 2016 deadline that would have applied for Moore to mail a declaration of forfeiture, and before the deadline that would have applied for them to file a claim in response to a declaration of forfeiture.” First, the district court’s analysis ignores the potential that an unbiased adjudicator would have assessed the merits of the Platts’ petition and issued a declaration of remission, not a declaration of forfeiture, by September 20 (as Moore’s ultimate decision to return the car and abandon the forfeiture suggests is likely). Second, this analysis assumes that the Platts secured procedural due process upon the filing of their claim, not upon the return of their car. The filing of the claim could only provide due process if Moore’s motion to strike would have failed. As we have explained, that is at best unlikely, and cannot preclude the Platts’ standing to challenge the statute.We accordingly reverse the dismissal of the Platts’ (state law) biased adjudicator claims.
The lawsuit moves forward. Hopefully, it will result in a decision that forces the state to rewrite its forfeiture rules to, at the very least, respect due process rights. And there's always a chance a rewrite might address the perverse incentives that encourage the behavior seen here.
The LAPD has filed a massive proposal requesting more than $18 million in budget increases in order to pay for surveillance programs, bullets, and … snacks.The Stop LAPD Spying Coalition released a letter on Monday blasting the 183-page report. The proposal requests nearly $18.44 million to support many of the things that the community has spent recent years protesting. The letter, which was co-signed by Black Lives Matter Los Angeles and the National Lawyers Guild of Los Angeles, describes the LAPD’s list of demands as a “disgusting insult to hundreds of thousands of people who took the streets last summer."
What else in the LAPD's "more please" proposal? $2 million to spend on social media monitoring, something it's asking for right after it was reported LAPD officers are demanding social media information from people they've accosted or otherwise harassed into a "consensual" conversation. That's in addition to $450,000 in licenses for social media monitoring software to better make use of this new data officers are collecting while out in the proverbial field.The letter [PDF] from the Stop LAPD Spying Coalition doesn't pull any punches. It compiles a long list of the stupid, counterproductive demands the department is making -- ones not connected in any way to improving relations with the communities they serve.In true Newspeak, here's the fucking news: the LAPD wants more money to be thrown at its desire to throw bullets at people.
Over $12 million for new trainings in addition to $461,850 in bullets at $17 per round to shoot away at trainings and $492,850 in “overtime funds to address field jail training” for mass arrests
This won't make the LAPD more efficient killers. And it won't make them better guardians of people's rights, starting with the right to protest. What it will do is encourage pulling the trigger until clips run dry and mass processing of people arrested for (the most part) expressing their displeasure with their current police force.And who wouldn't applaud the blending of police officers and the military like so much corn and gasoline?
$348,130 for a new staff officer whose full-time role will be to permanently coordinate with “military” forces and facilitate their local deployment
And perhaps the most "police" thing of all, the guys are getting kind of hungry:
$100,000 for snacks that “personnel can grab quickly and take with them,” apparently enabled through new “emergency use credit cards”
Love to see "snacks" and "emergency" linked together in a sentence asking for $100,000. It sounds like an insulin request but it's actually about propping up the Frito-Lay Economy.Once you get past all the "screw your rights and please catch bullets" parts of the LAPD's proposal, you get to the part where the LAPD claims to be saving money by spending money… or something.
Chief Moore’s cover memo raises many questions about the cost of these proposals. As he notes, LAPD previously claimed these same reforms required over $66 million. He writes that this larger figure “counted all costs – even if the resources were currently available” (p. 5) which presumably means LAPD double-counted the cost of resources that it already possessed. But one sentence later, Chief Moore claims the $18.44 million estimate amounts to a $48 million “reduction in cost projection.” It is unclear whether the $18.44 million is in fact a “reduction” or simply accurate accounting. But LAPD’s comfort switching numbers so large without real explanation speaks to how little financial scrutiny they expect from you. Additionally, it is unclear how much of the $18.44 million are yearly versus one-time costs.
Good luck sussing that out, whether you're an activist group or city oversight. The LAPD is used to asking questions, not answering them. A sea change in public receptiveness to cops being assholes doesn't appear to have had any effect on LAPD (and I use this term super-loosely) leadership. Cop business will proceed as usual, recent public antipathy notwithstanding.So, what else is new? Nothing. But it needs more money. The LAPD says its cool with alleged transparency efforts like body cams, but only if it gets to keep harvesting data from tons of automatic plate readers and its take on stop-and-frisk, which now apparently involves requests for social media info.And it appears the city did what it could to ensure the LAPD could have its millions without too much interference from the hoi polloi.
The proposals were made public in an 183-page document sent late in the afternoon on Friday, September 24, and the proposals will be voted on the morning of Tuesday, September 28. This is just over one business day to digest and respond to the 183-page proposals, and even that time period is only for people who happen to have received the proposal immediately because they subscribe to this board’s agenda by email. The public’s only opportunity to comment would be if they received that online agenda and then responded either by emails sent before 5 p.m. on Monday, September 27, or by becoming one of the dozen or so individuals who happen to secure a brief public comment slot during this board’s 45-minute public comment period, before the agenda item is even introduced.
Only in the government can you give the finger to your employers (taxpayers) and end up better off during FYWhatever. The LAPD likely knows what the public is asking of it. But it also knows that not caring what they think will at least give it the same budget it had in 2020 and do little to curb its surveillance excesses. At some point, the LAPD's city oversight will have to actually do its job. Until then, it's just signing off on the same law enforcement bullshit that has kept the city in constant turmoil since the Watts riots nearly five decades ago.
Most people would agree that those who are blind or visually impaired deserve all the help they can get. For example, the conversion of printed materials to accessible formats like Braille, large print, or Digitally Accessible Information System (DAISY) formats, ought to be easy. Who could possibly object? For years, many publishers did; and the reason – of course – is copyright. For example, publishers refused to allow Braille and other accessible editions to be shared between different countries:
while the ONCE library in Spain has more than 100,000 titles in accessible formats and Argentina has over 50,000, these titles cannot be shared with the 19 Spanish-speaking countries across Latin America. Similarly, some years ago, charities working in five English-speaking countries, including the Royal National Institute for the Blind in the UK and Vision Australia, were obliged to produce five identical Braille master files for the same Harry Potter book, costing them valuable time and money.
Copyright protections create barriers for people with disabilities, yet big publishers continue to block efforts to create exceptions to remedy the problem even as hundreds of millions of people would stand to benefit worldwide. In the US alone, those with print disabilities represent 30 million people. According to an estimate by the World Health Organization, there are about 285 million visually impaired people in the world, and 90% of those are in the developing world.
Later that same year (2012), negotiations finally began on a treaty laying down copyright exceptions and limitations that would allow those with visual impairments to convert works, and share them internationally. The World Blind Union had some modest aims for the new treaty:
Make it legal for print disabled individuals and specialist organizations to make accessible copies of published works in all countries which sign the treaty;Make it legal for accessible books to be sent internationally without permission from publishers;Prevent contracts with publishers from undermining copyright exceptions for print disabled people (currently they sometimes do).
Pretty reasonable, most people would say. But the EFF reported at the time that negotiators were “unable to reach a consensus on many of its most contentious issues, such as allowing exports of adapted works across borders and circumventing technological protection measures to enable accessibility”. In addition, people with hearing disabilities were “written out of the draft“, and US negotiators blocked exceptions and limitations for audiovisual works at the behest of the Motion Picture Association of America (MPAA).It took another four years before what came to be known as the Marrakesh Treaty was agreed on and entered into force. Since then, countries around the world have been ratifying the treaty, with greater or lesser degrees of haste. One nation that has still not yet ratified the Marrakesh Treaty is South Africa. The reason given was that the country’s main Copyright Act, from 1978, prevented the government from doing so. Happily, that obstacle has finally been removed, reported here by the Oxford Human Rights Hub:
After hearing arguments from the amici on important issues of the rights of all people to freely impart and receive information and the interpretation of South Africa’s existing obligations under international human rights law and copyright law, the Pretoria High Court held that the Copyright Act is unconstitutional to the extent that it unfairly discriminates against people living with visual and print disabilities as it effectively prevents them from accessing materials under copyright.
It’s simply scandalous that in 2021 the visually impaired still need to fight in this way for their basic rights to “freely impart and receive information”. Once again, it is outdated copyright law that is to blame – together with the selfishness of publishers who view their rights to exclude people from knowledge as more important than those of the blind to access it.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.Story originally posted to the excellent new Walled Culture website.
In 2019, the FBI claimed to be compiling the first-ever database of police use of force, including killings of citizens by officers. It was, of course, not the first-ever database of police killings. Multiple databases have been created (some abandoned) prior to this self-congratulatory announcement to track killings by police officers.What this database would have, however, is information on use of force, which most private databases didn't track. Whether or not it actually does contain this info is difficult to assess, since the FBI's effort does not compile these reports in any easily-accessible manner, nor does it provide readable breakdowns of the data -- something it does for other things, like crimes against police officers.It also does not have the participation of every law enforcement agency in the nation, which prevents the FBI from collecting all relevant information. It's also voluntary, so even participating agencies are free to withhold incident reports, keeping their own official use-of-force/killing numbers lower than what they actually may be.The problem with underreporting traces back decades, though. The official count of police killings has always been lower than data compiled by non-government databases, which rely almost solely on open-source information like news reports. It would seem the numbers reported by the FBI would be higher, since it theoretically has access to more info, but the FBI's count has repeatedly been lower than outside reporting.A recent study published by The Lancet says the official numbers are wrong. And they're off by a lot. Utilizing outside databases compiled by private citizens/entities and data obtained from the USA National Vital Statistics System (NVSS), the researchers have reached the conclusion that law enforcement self-reporting has resulted in undercounting the number of killings by officers by thousands over the past four decades.
We found that more than half of all deaths due to police violence that we estimated in the USA from 1980 to 2018 were unreported in the NVSS. Compounding this, we found substantial differences in the age-standardised mortality rate due to police violence over time and by racial and ethnic groups within the USA.
According to this study [PDF], the NVSS did not report 55% of deaths attributable to police violence, resulting in an undercount of ~17,000 deaths at the hands of law enforcement officers. There are a lot of contributing factors, not the least of which is law enforcement's hesitancy to report or provide data on their own possible wrongdoing.But there are other contributors. Misclassification of deaths often starts in the coroner's office. Some coroners and forensic examiners work hand-in-hand with local law enforcement, resulting in pressure to define cause of death as something unrelated to force applied by officers. One way to fix this ongoing contributor to underreporting is to protect coroners and examiners from other government agencies.
Coroners and forensic medical experts also propose that to avoid incorrect assignment of cause of death due to pressure from the police, politicians, or the deceased family members, forensic pathologists should work independently from law enforcement. Additionally, forensic pathologists often must investigate and testify in cases of police violence. To ensure that pathologists are free from pressures that could influence these cases, pathologists should be awarded whistleblower protections under the law.
The study also notes there is one proven way to reduce killings by police officers. It involves changing policies and laws.
Evidence suggests that there have been some successful reforms to reduce police violence from 1970 to 1985; 50 cities with populations larger than 250000 residents halved their fatal police violence from 353 to 172 per year, primarily through banning shooting of non-violent fleeing suspects.
The things that don't work are the surface-level reform efforts cops actually agree to.
However, more recent reform efforts to prevent police violence in the USA, including body cameras, implicit bias training, de-escalation, and diversifying police forces, have all failed to further meaningfully reduce police violence rates.
To meaningfully reduce incidents of police violence, you first have to confront the problem. Bad data that downplays the number of violent acts committed by police officers allows agencies to pretend the problem isn't as bad as critics say it is. It also allows them to minimize their contribution to these deaths by relying on cause of death reports that skew towards law enforcement's narrative, rather than independent conclusions by medical experts. Bogus stats are a luxury we can't afford in this nation, not if we ever hope to return America to a place where the police serve the public, rather than behaving like warlords overseeing a never ending conflict.
The last time we found niche grocery chain Trader Joe's playing intellectual property bully, it was over one enterprising Canadian man who drove across the border, bought a bunch of good stuff from Trader Joe's, and then resold it at his Canadian store called "Pirate Joe's". While that whole setup is entertaining, Trader Joe's sued for trademark infringement in the United States, which made zero sense. The store was in Canada, not the States, reselling purchased items is not trademark infringement, and Trader Joe's was free to open up Canadian stores if it chose.Fast forward to the present and Trader Joe's is trying to stretch trademark law yet again, this time to go after one man's website that is selling parody t-shirts with a picture of Joe Biden and the moniker "Traitor Joe", all mocked up to look like the store logo. Trader Joe's sent a threat letter to the man, Dan McCall, who was represented by friend of the site Paul Alan Levy.
I recently had the pleasure of representing Dan McCall again — author of such wicked parodies as NSA – the Only Part of Government That Actually Listens (we got to sue the NSA for a declaratory judgment of noninfringement); Ready for Oligarchy (over which we came with hours of filing suit against Hillary Clinton’s exploratory committee); and Bernie Is My Comrade (Sanders’ committee had the smarts to retract quickly). Last week, I sent a response to a demand letter sent on behalf of Trader Joe's from a BigLaw attorney lawyer who, considering his claim to be a "seasoned intellectual property litigator," really should have known better than to subject his client to the Streisand Effect.
You can see the image in question below.
I've included Levy's response embedded below so that you can read it in full. Now, if McCall sounds at all familiar to you, it's because he's made a habit out of annoying large institutions by creating parody logos of their branding. Hillary Clinton, Bernie Sanders, the NSA, and DHS have all come calling for him at some point. This is part of the context of Levy's note that competent counsel really should know better than to send this threat letter: McCall and Levy have been through this before and they'll get through it again.As to the merits of supposed trademark infringement, well, the response letter does a fairly thorough takedown of any such arguments. Levy starts off by pointing out to Trader Joe's that literally nobody is going to think it endorsed or produced this t-shirt. In fact, the company's own threat letter notes how this puts the company in a bad light, so why would it also think the public would think the shirt came from Trader Joe's?But the real trump card in all of this is that the t-shirt is protected speech as parody.
Trademark law aside, McCall's use of the image to comment on the President of the United States, while playing on the name of a leading grocery store chain, is speech squarely protected by the First Amendment. Consequently, any application of trademark law to quash such uses would be highly suspect. Although McCall's products are sold, their contents are noncommercial speech, which qualifies for full First Amendment protection.
There's a bit more in there, including an odd copyright claim over some of the imagery and the fact that Trader Joe's invoked the DMCA against McCall even though his company, Liberty Maniacs, is not an interactive website allowing user input, but that's more icing on the cake type stuff. What is made clear in all of this is that Trader Joe's has a legal team that is making quite spurious threats that would be highly likely to be defeated in court.
The Billy Mitchell and Twin Galaxies saga rolls on, it seems. Mitchell has made it onto our pages several times in the past, most recently over a lawsuit filed against gaming record keepers Twin Galaxies over its decision to un-award his high score record for Donkey Kong on allegations he achieved it on an emulator instead of an official cabinet. The suit is for defamation and Twin Galaxies initially tried to get the case tossed on anti-SLAPP grounds, but the court denied that request under the notion that Mitchell only has to show "minimal merit" in the overall case to defeat the anti-SLAPP motion.And now, on appeal, California's Second Appellate court has affirmed that ruling, again on "minimal merit" grounds. You can read the entire ruling embedded below, though I warn you that there are many pages dedicated to the back and forth between Mitchell and Twin Galaxies over a video game record, so you may come away with sore eyebrows from rolling your eyes so hard at all of this. There is also a metric ton of context as to how the court is supposed to apply the anti-SLAPP statute. Go nerd out if you like, but the whole ruling boils down to this:
The parties agree, as do we, that Mitchell’s claims for defamation and false light arise from protected activity and meet the first prong of the anti-SLAPP analysis. We therefore focus on the second prong: whether Mitchell has shown a probability of prevailing on his claims. Twin Galaxies contends Mitchell has not provided sufficient evidence to show the challenged statement was false or it made the statement with actual malice. We are compelled by the standard of review, however, to conclude Mitchell has demonstrated the requisite “minimal merit” to his claims to defeat Twin Galaxies’ anti-SLAPP motion.
It's incredibly important in a case like this to keep that standard in mind. And, though some folks, including some at Techdirt, don't necessarily agree with me, I think I agree with the court's ruling on this. Given the minimal merit standard, it seems the court is simply reluctant to not let this proceed to trial.And, as I stated in the last post, to discovery. And it's going to be in discovery where all of this gets far more interesting. Because at trial, there will be no minimal merit standard for the claim of defamation. Instead, Mitchell is going to have to prove two things: that the accusation of cheating is false and that Twin Galaxies made that claim not out of error, but out of "actual malice".And that is going to be an extremely tall hurdle over which Mitchell needs to jump.
Summary: There are unique challenges in handling adult content on a website, whether it’s an outright ban, selectively allowed, cordoned off under content warnings, or (in some cases) actively encouraged.Tumblr’s early approaches to dealing with adult content on its site is an interesting illustration in the interaction between user tagging and how a site’s own tools interact with such tags.Tumblr was launched in 2007 as a simple “blogging” platform that was quick and easy to setup, but would allow users to customize it however they wanted, and use their own domain names. One key feature of Tumblr that was different from other blogs was an early version of social networking features — such as the ability to “follow” other users and to then see a feed of those users you followed. While some of this was possible via early RSS readers, it was both technologically clunky and didn’t really have the social aspect of knowing who was following you or being able to see both followers and followees of accounts you liked. Tumblr was also an early pioneer in reblogging — allowing another user to repost your content with additional commentary.
Because of this more social nature, Tumblr grew quickly among certain communities. This included communities focused on adult content. In 2013, it was reported that 11.4% of Tumblr’s top domains were for adult content. In May of 2013, Yahoo bought Tumblr for $1.1 billion, with an explicit promise not to “screw it up.” Many people raised concerns about how Yahoo would handle the amount of adult content on the site, but the company’s founder, David Karp, insisted that they had no intention of limiting such content.
“We've taken a pretty hard line on freedom of speech, supporting our users' creation, whatever that looks like, and it's just not something we want to police.... I don't want to have to go in there to draw the line between this photo and this behind-the-scenes photo of Lady Gaga and, like, her nip.” -- David Karp
Yahoo CEO Marissa Mayer noted that the content on the site might prove more challenging for advertisers, but promised that they would employ “good tools for targeting” to help advertisers avoid having their brands appear next to adult content. However, she still supported allowing Tumblr to continue hosting such content.
“I think the richness and breadth of content available on Tumblr—even though it may not be as brand-safe as what’s on our site—is what’s really exciting and allows us to reach even more users.” — Marissa Mayer
A key part of how Tumblr managed this at the time was allowing its users to tag their content in a way that would indicate to others if there was adult content, while letting the users themselves set preferences regarding their own interest in avoiding such content. Tumbr’s terms of service at the time explained how this worked:
Tumblr is home to millions of readers and bloggers from a variety of locations, cultures, and backgrounds with different points of view concerning adult-oriented content. If you regularly post sexual or adult-oriented content, respect the choices of people in our community who would rather not see such content by flagging your blog (which you can do from the Settings page of each blog) as Not Suitable for Work ("NSFW"). This action does not prevent you and your readers from using any of Tumblr's social features, but rather allows Tumblr users who don't want to see NSFW content to avoid seeing it. — Tumblr’s 2012 Terms of Service
Notably, those same terms did ban “sexually explicit videos” with a somewhat explicit reason for that ban: “We're not in the business of profiting from adult-oriented videos and hosting this stuff is fucking expensive.”Around the time of the Yahoo purchase, however, users began noticing a change. As shared in Tarleton Gillespie’s book “Custodians of the Internet”:
In May 2013, some Tumblr users noticed that blogs rated “adult” were no longer findable through the major search engines. A month later, Tumblr began using the ratings to selectively exclude posts from its own search tool. Posts from “NSFW” or “adult” blogs no longer appeared in Tumblr’s search results, even if the post itself was not explicit, and regardless of whether the search was explicit. Actually, it was even more complicated than that: if the searcher already followed the explicit blog, that blog’s posts would appear— if it was “NSFW.” If it was “adult,” the more explicit rating, those posts would not appear in the search results, even if the searcher already followed that blog. — Tarleton Gillespie
The end result of this was widespread confusion among Tumblr’s users and fans:
“Clear? No? It was an intricate and confusing arrangement, one that users had a hard time following and the company had a hard time explaining. The principle behind this intricate policy is not an unreasonable one: let users continue to post explicit pornography, while using the self- rating to shield users who do not want to encounter it. But enacting this principle meant codifying it in a series of if/then conditions that could be automated in Tumblr’s search algorithm. And what the policy meant in practice was that while an explicit blog’s existing followers could more or less still get to it, it would now be much more difficult for anyone new ever to find it, given that its posts would not appear in any search results.In addition, there were other assumptions hiding in the new policy: that the rules should be different for mobile users than for users on their computers; that “logged-out” users (which includes users who have not yet signed up for Tumblr) should not encounter explicit blogs at all; and that explicit Tumblr blogs shouldn’t be appearing in search results on Google or Bing—or Yahoo. These represent somewhat different priorities, but get folded in with Tumblr’s apparent concern for balancing the right to share pornography and the right not to encounter it if you choose not to.” -- Tarleton Gillespie
How important to Tumblr is the culture and community that has built up around those who share adult content on the site? How does that play into product decisions regarding discovery of new content on the site?
How practical is user tagging for dealing with adult content on the site? How will the site handle it if there is a significant disagreement, such as someone posting content they insist is not adult content, but others feel is?
What sorts of technical/algorithmic rules should be put in place to deal with such adult content on the site? How effective is it to remove such results from search? What are the consequences of removing NSFW results from search?
Adult content raises different kinds of challenges for social media websites. What kinds of policies should sites consider regarding such content, and how will it impact their userbase and communities?
Tumblr argued that photos including nudity were different than “sexually explicit videos.” Are these distinctions meaningful in a way that can be explained to a team of content moderators?
Resolution: For many years after this, Tumblr continued to allow adult content. In 2017, the company made one major change, rolling out its safe mode option which would not just remove “NSFW” tagged content from search, but also from user feeds. So even if a user followed a certain blog, if they were in “safe mode” they would no longer see content tagged as NSFW.In 2017, Verizon purchased Yahoo, including Tumblr. A year later, it became apparent that Verizon did not take the same view as Yahoo had regarding allowing Tumblr to continue hosting adult content. In December of 2018, it was announced that Tumblr would be banning adult content on its servers.Many people worried about what this would do to the site and the communities that grew up around it. Others pointed out that the ban would negatively impact queer and sex-positive communities. The end result was that traffic to the site diminished noticeably in the following months. In August of 2019, Verizon sold Tumblr to blogging company Automattic for just a few million dollars, well below the $1.1 billion Yahoo had paid for it in 2013.Originally posted to the Trust & Safety Foundation website.
A good public outcry and backlash can lead to many, many good things. We see it here at Techdirt all the time, particularly when it comes to aggressive bullying episodes over intellectual property. Some person or company will try to play IP bully against some victim, the public gets wind of it and throws a fit, and suddenly the necessity over the IP action goes away. Retailers, manufacturers, breweries: public outcry is a great way to end ridiculous legal actions.A recent example of this comes out of Tulsa, OK, where a riverside park of all places decided it had to sue a coffee shop over a similar, if fairly generic, name. Gathering Place is a park in Tulsa, a... place... where people... you know... gather. The Gathering Place is a coffee shop in Shawnee, 90 miles from Tulsa, where people get coffee and, I imagine, occasionally gather. But despite any gathering similarities, coffee shops are not parks and 90 miles is a fairly long way away. Which makes a lawsuit over trademark infringement brought by the park very, very strange.
The lawsuit alleged the coffee shop "intentionally mimicked" the name of the park to unjustly benefit from its fame."This couldnt be further from the truth," the coffee shop owners countered in a Facebook post. "It is hard to think that someone would actually be confused between a world renowned outdoor play space and a small local coffee shop located an hour and a half apart."
It appears the public very much agrees with the coffee shop owners, as many went online to register their displeasure over the lawsuit. Several thousand people also signed an online petition backing The Gathering Place.
Hundreds lashed out at the park on Facebook after the lawsuit was filed, with some vowing never to go there again."Shouldn't be suing PEOPLE. Especially mom and pop businesses. SHAME SHAME SHAME!" one critic commented on the park's Facebook page.
The result was fairly swift. Suddenly, both sides came together and entered one of those annoying settlements I complain about so much, where nobody gets to learn any details of the terms. What has been made public is that The Gathering Place has gotten a license from the park, Gathering Place, to continue to use its name. As the source post notes, often times these licensing arrangements come with some sort of money changing hands, but what that amount might be is anyone's guess. Given the size of The Gathering Place, you have to imagine it is fairly minimal.Instead, the park probably witnessed the backlash and decided a quick exit is what was needed. Both to limit the legal costs of litigation as well as the cost to the reputation of the park due to the backlash by the public. Either way, I very much doubt this settlement would have been reached so quickly without the public outcry.
LinkedIn -- the business-oriented social media platform owned by Microsoft -- has spent the last few years increasing its compliance with the Chinese government's demands for censorship. A couple of years back, the network drew heat for not only blocking accounts of Chinese pro-democracy activists but also critics of the government located elsewhere in the world.The blocking only occurred in China, but that was enough to cause PR trouble for LinkedIn, which restored some of the accounts following some deserved backlash. The Chinese government didn't care much for LinkedIn's temporary capitulations so it turned up the heat. After failing to block enough content, the Chinese government ordered LinkedIn's local office to perform a self-audit and report on its findings to the country's internet regulator. It was also blocked from signing up any new Chinese citizens for 30 days.The pressure appears to have worked. China is again asking for censorship of voices it doesn't like. And, again, LinkedIn is complying. Here's the report from Bethany Allen-Ebrahimian of Axios, who was one of those targeted by the latest round of account blocking.
LinkedIn blocked the profiles of several U.S. journalists from the company's China-based platform this week, citing "prohibited content." My account was one of the profiles affected.[...]LinkedIn customer service sent me an email on Sept. 27 stating that, due to "prohibited content" in the summary section of my profile, the company was blocking my profile from being viewable in China.
Melissa Chan, a former China correspondent who now works as a journalist in Berlin, posted on Twitter that she had received a similar email on Sept. 28.
Greg Bruno, the author of a book about China's soft-power push against Tibetans, also posted on Twitter on Sept. 28 that he had received an email from LinkedIn. It cited the "publications" section of his profile, in which the only publication listed is his book.
The Chinese government's ability to block foreign journalists from appearing on the local version of LinkedIn has drawn more attention to its censorship practices. But that's pretty much the thing that China does all the time, so it's hardly surprising it would seek to keep its citizens from interacting with people it doesn't approve of.What's more disturbing is Microsoft/LinkedIn's compliance, which has drawn the attention of Senator Rick Scott, who is now asking the company to explain why it's helping China with its censorship.The letter [PDF] from Scott makes some good points, but makes some of those points badly.
The censorship of these journalists raises serious questions about Microsoft’s intentions and its commitment to standing up against Communist China’s horrific human rights abuses and repeated attacks against democracy. These acts of censorship by your company, and the apparent broader Microsoft censorship policy of, “offering a localized version of LinkedIn in China,” is gross appeasement and an act of submission to Communist China.
That's a good point. The follow-up is a bit more self-serving.
While Microsoft is censoring journalists abroad, it is actively spreading misinformation domestically. In March 2021, Microsoft openly decried an election security law passed by the Georgia legislature which made it easier for Georgia residents to vote while reducing the possibility of fraud.Meanwhile, your company has been silent on Communist China rigging its elections and General Secretary Xi declaring himself ruler for life. In the face of these true assaults on democracy, Microsoft is openly suppressing those who try to expose Xi’s authoritarian rule.
The election security law is really about voter suppression, something Rick Scott certainly isn't going to publicly acknowledge. This is some useless point scoring thrown in to make it appear Microsoft's opposition to this bill is on par with its acquiescence to authoritarian rulers in another part of the world.Here's what the supposedly pro-democracy "election security" bill passed in Georgia actually does:
In Georgia, Governor Brian Kemp just signed into law a bill that adds many obstacles to voting, including reducing the number of ballot boxes, shrinking the window for early voting, adding additional photo ID requirements, and allowing state officials to circumvent the work of county election officials if they don’t like the outcomes they are seeing. The Georgia bill even goes so far as to make it illegal for outside groups to give water or food to voters stuck in long lines.
It's not about security. It's about making democracy accessible to those with the most resources and expendable time. So, that's some bullshit and Scott would have been better off sticking to chastising LinkedIn for carrying the Chinese government's censorship water rather than pretending his associates in Georgia are all about that democracy.Scott does ask some good questions, though, which hopefully will generate some explanation for LinkedIn's decision to engage in proxy censorship to maintain access to a sizable number of Chinese users.
Is censorship of user views that are not aligned with the Chinese Communist Party a function of LinkedIn’s “localized version” of its platform in China?How many accounts has LinkedIn censored because of content the Chinese Communist Party disliked, or that LinkedIn feared might upset Chinese Communist Party authorities?Why does Microsoft choose to weigh in on domestic political matters, but stay silent on foreign political matters, and what is its decision-making process for speaking on political matters?
The last question is still a good one, even though Scott undercut this point earlier by claiming a voter suppression bill was actually an election security bill. And it could be that LinkedIn does weigh in on local issues in China. It's just that the Chinese government doesn't care what LinkedIn thinks and has offered the platform the option of complying or leaving.So far, the answer is still compliance. And that's really not an acceptable tradeoff. American companies shouldn't willingly do business with authoritarians. Any compliance only affirms that the party holding the real power is the political party issuing the orders. Demands for censorship will only increase. And opening a local office pretty much guarantees the government will start demanding full access to Chinese residents' data and communications. If you cave on the easier stuff, you've got nothing left to stand on when they come for the rest of it.
Alabama has one of the weakest public records laws in the nation. Public bodies are not required to respond to requests from citizens and can charge exorbitant fees for producing documents. The only way to force an agency to produce a public document it refuses to release is to file a lawsuit.
The Alabama Supreme Court on Friday ruled against a Mobile media outlet seeking law enforcement files related to a fatal police shooting, sparking a fervent dissent from the court's own chief justice regarding the state's public records law.The court upheld a Baldwin County ruling in the case, in which Lagniappe Mobile sued for investigative records from the Baldwin County Sheriff’s Office related to the 2017 shooting of motorist Jonathan Victor. The high court ruled the records Lagniappe sought, including dash and body camera footage from the shooting, are all exempted from open records law due to their "investigative" nature, even though the investigation in the shooting has been closed.
That's right. The court said records that merely documented what had happened -- essential to an investigation but not investigatory records as most people would define the term -- can be withheld forever simply because they were once part of an investigation. Closing an investigation does not prevent law enforcement agencies from withholding records under the investigative privilege exemption.This is, of course, an abhorrent translation of the state's public records statutes by the state's top court. It completely undermines the presumption of openness that guides public records laws, even those as terrible as Alabama's.The dissent, written by Chief Justice Tom Parker, excoriates the majority for deciding the state's laws give state law enforcement permission to withhold almost all records forever. A long discussion of the majority's misreading of the statue culminates with this succinct summary:
Putting the pieces together from the above textual and precedential analysis, I believe that the best interpretation of "related investigative material" is as follows. "[R]elated investigative material" includes only records, created by law-enforcement officers, that reflect their efforts in an investigation. It does not include records that merely document an incident or records that are merely part of a process of observation and information collection.
As Justice Parker sees it, the investigative privilege exemption cannot possibly cover the camera footage sought by the newspaper as its nothing more than recorded observation. It also shouldn't have been given blanket coverage to other records sought, like coroner's reports (which are not compiled by law enforcement officers) or communications related to the case (because not all communications would be of an investigatory nature). But the Supreme Court said everything requested could be denied under this exemption.Justice Parker says court precedent requires the court to define exemptions narrowly. Here, the court has done the opposite, expanding it to cover almost any record created, compiled, or held by a law enforcement agency.
The sweep of those pronouncements is breathtaking. In essence, all evidence in the possession of law-enforcement agencies, whether created by the agency or received from others, is now exempt from citizens' statutory right to access public records. Whatever that interpretation of the statute can be called, it cannot be called a narrow construction in favor of open records that Allen requires. [...] Under today's decision, to be exempted, a record need only be given to law-enforcement personnel and be somehow "related," no matter how tenuously, to a criminal investigation.
As Parker points out, the government officials being sued didn't even try to argue the statute provided coverage this broad. This is from the Sheriffs' brief:
To be clear, the [Sheriffs] are not asserting that [the investigative-privilege statute] provides a blanket exception for any and all materials that have been gathered by a law enforcement entity during the course of an investigation. Clearly, such a position would run afoul of this Court's instruction that the exception set forth in [the statute] should be narrowly construed. [Allen], 32 So. 3d at 1271.
But that's what the state's top court decided they should have: a blanket exception that denies the public access to almost every law enforcement record.Justice Parker's dissent signoff is furious:
With one sweeping stroke, today's decision spells the end of public access to law-enforcement records that are connected in any way to an investigation. Hidden now from the public eye are body-cam videos, dashcam videos, 9-1-1 recordings, and anything else that is remotely connected to a crime or even potential crime. After today, as to law-enforcement agencies at least, the statute might as well be titled the Closed Records Act.The special concurrence's protestations do nothing to lighten this heavy shroud. Of course government agencies are free to disclose records voluntarily, but that is not the point of the Open Records Act. Like law in general, the Act exists to compel people to do what they will not do voluntarily. So the fact that some people do not need the prod of the law in no way lessens the harm of removing that prod from those who do.
As furious as it is, it does nothing to change the new status quo. Justice Parker knows this, but isn't going to let this terrible decision escape the courthouse without noting his disappointment.
I cannot sit idly by while this Court shrinks a legal right of the people of Alabama to the vanishing point. And I especially cannot do so when that shrinkage flies in the face of text and precedent.
This leaves it up to the legislature to repair the damage done by the court. But Alabama has had terrible public records laws for years so it seems unlikely state legislators are in any hurry to make them better, much less decide they know better than the state highest court on how the current laws should be interpreted or altered.
Regular readers here will by now likely be familiar with Twitch streamer "Amouranth". She has made it onto our pages as part of the year-long mess that Amazon's Twitch platform appears to be making for itself, during which it has demonstrated its willingness to both treat its creative community quite poorly and fail to properly communicate that poor treatment to much of anyone at all. For instance, Twitch has temporarily banned or kept Amouranth from live-streaming several times, all likely due to the content of her streams. That content seems nearly perfectly designed to poke the line on Twitch's streaming guidelines, including so-called "hot tub streaming" and ASMR streams. Twitch has never been great about explaining the reasons for bans like these, but in the past it has at least linked to the offending content so that a streamer knows which videos were objectionable. But with some, including Amouranth, Twitch often times doesn't even bother doing that, such as when it demonetized Amouranth's videos without warning or explanation.So, while Twitch, quite frankly, now has far, far bigger issues on its hands, it's worth pointing out that Twitch has yet again banned Amouranth without warning or explanation. Though, it appears this time Twitch has some friends tagging along in Instagram and TikTok.
Popular streamer Kaitlyn ‘Amouranth’ Siragusa has had Twitch channel, TikTok, and Instagram pages banned within quick succession, but what actually happened and what is she doing next? On October 8, Amouranth received her fifth ban from Twitch but it seemed to come pretty out of the blue. While there is usually a clip to point to that mostly explains the suspension, that hasn’t been the case this time around and the exact reason is up for speculation.
And not just speculation by the public. It appears that at the time the ban-hammer was brought down on her, Amouranth had absolutely no idea why she'd been banned across multiple platforms. Perhaps she's playing coy, but publicly she actually asked others to let her know if they found out the reason for all of this.
Why Twitch can't seem to get communication and basic public relations right is an ongoing mystery. But whatever that reason is, it seems like they just can't. The wrinkle here would normally be that Instagram and TikTok have followed along the same path... except that Twitch actually reinstated Amouranth a few days later. She remains banned on the other platforms, though, making this all remarkably strange. Ban, unban, ban, unban, and all without proper communication to a member of Twitch's creative community.Now, Amouranth will be fine. She makes most of her money from OnlyFans, after all. But that really isn't the point. How much harm Twitch is doing to creators by not bothering to communicate with them isn't as important as why any of this harm is occurring at all.
If that keeps up, she may never have to make a return to streaming. Though, YouTube could be an option seeing as Indiefoxx – who was in a similar situation to Amouranth with being banned – has recently made the switch herself.She’s also talked about starting a venture capital fund that focuses on the “grey market space” of things that are not entirely brand-friendly. Though, who knows if that’ll happen anytime soon.
And, while Amouranth is a very visible creative whom this is happening to, there are plenty of others. And at some point, those people are not going to put up with this concept of a platform being managed by whim any longer.
Having covered telecom for a long time, I've lost track of the times I've watched some befuddled lawmaker shocked by the content of their own bill. Usually, that's because they outsourced the writing of it to their primary campaign contributors, which in telecom is usually AT&T, Verizon, Comcast, and Charter. Sometimes they're so clueless to what their "own" bill includes they'll turn to lobbyists in the middle of a hearing to seek clarity. This is, of course, outright corruption. But we tend to laugh it off and normalize it, and the press generally refuses to accurately label it corruption.There are endless parallels when it comes to the energy sector. Like this week, when Texas lawmakers were shocked to realize their recent state energy bill failed to require that Texas natural gas companies harden their infrastructure for climate change--despite the fact their own bill included giant loopholes to that effect.In the wake of the disastrous and deadly climate-related crisis in Texas last winter, the state passed several bills purporting to fix the problem. Many, like Senate Bill 3, largely just punted the can down the road, urging for a mapping of Texas's existing energy infrastructure, and giving the Texas Railroad Commission 180 days to finalize its weatherization rules. None of the solutions, of course, challenged entrenched energy providers, or tackled the core of the problem in Texas: an almost mindless deference to wealthy local energy executives.At a recent hearing in Texas, lawmakers blasted both the Texas Railroad Commission and local natural gas companies when they realized the latter had failed to weatherize their infrastructure with winter looming. The problem was that their own legislation provided the loopholes that made this possible:
"In a committee hearing Tuesday, Texas senators were furious that natural gas companies won't have to better prepare their facilities for extreme weather before this winter and rebuked the Texas Railroad Commission, which regulates the state's massive oil and gas industry, for not fixing the problem sooner.Wait a minute, state Sen. Robert Nichols, R-Jacksonville, told Wei Wang, executive director of the Railroad Commission. You haven't done it yet?But the loophole that lawmakers spent the hearing condemning and the slow timetable for winterizing the state power grid were part of legislation they approved during the regular legislative session in the spring."
Basically the bill in question lets natural gas companies opt out of system hardening requirements if they simply don't voluntarily declare themselves to be critical infrastructure with the state. This was all but certainly a provision included by the companies themselves and rubber stamped by the politicians paid to love them. More often than not, a politician's only understanding of their own bill comes from a .pdf provided by the companies that actually wrote the legislation (usually via some sort of proxy organization like ALEC to give it a thin veneer of faux legitimacy), resulting in obvious outcomes like this one.Reports continue to illustrate the grotesque cronyism and corruption that resulted in countless deaths in Texas last winter. And of course it's not only a Texas problem. Our mindless tendency to throw billions of dollars in tax breaks, subsidies, and regulatory favors at industry giants while ignoring infrastructure needs in the face of climate change is a country-wide affair. And the wholesale corruption that makes all of this possible continues to be normalized in most press coverage as a growing array of terrible climate catastrophes bear down on a dysfunctional nation.
Drug dogs are man's best friend, if that man happens to be The Man. "Probable cause on four legs" is the unofficial nickname of these clever non-pets, which give signals only their handlers can detect which give cops permission to perform searches that otherwise would require a warrant.They're normally seen at traffic stops and border checkpoints, but they're also used to sniff other places cops want to search but don't want to get a warrant to do so. This has led to a few legal issues for law enforcement, with courts occasionally reminding them that a dog sniff is a search and, if the wrong place is sniffed, it's a constitutional violation.The top court in Connecticut has curtailed the use of drug dogs in certain areas, finding that sniffs are still searches and these searches are unreasonable under the state constitution if performed in certain areas -- namely outside the doors of motel rooms. (via FourthAmendment.com)In this case, police officers allowed their dog to sniff at doors of motel rooms until it alerted on a door. Using this quasi-permission, officers entered the room and found contraband. The government argued that even if it was a search, it was performed in a place (a hotel or motel) where citizens would have a lowered expectation of privacy, considering the fact the rooms are only rented, utilized for only a short time, and accessible by hotel staff.In a really well-written opinion [PDF], the court reminds the government that a lowered expectation of privacy is not the same as a nonexistent expectation of privacy. And, more importantly, it reminds them that, while motel rooms may not have the sanctity of people's permanent homes, it is a home away from home and afforded more protection than, say, a car parked on the curb of a public road.The court addresses all of the government's arguments and finds none of them persuasive.
First, the state asserts that, in contrast to an apartment, a motel room most often serves merely as transitory quarters rather than a private, permanent residence. Although we agree generally with this observation, it is well settled that motel guests, like home dwellers, have a reasonable expectation of privacy in their rooms. The fact that a motel is not a home when, as is ordinarily the case, a stay there is temporary, does not, ipso facto, establish the scope of the privacy that transient motel guests reasonably may expect.
Holding otherwise would allow cops to engage in all sorts of searches simply by claiming one thing is not as private as another thing.
Indeed, this court previously has recognized that those aspects of a hotel or motel that reduce a guest’s expectations of privacy but do not increase the vulnerability of guests to the particular type of intrusion at issue are irrelevant in assessing the legality of that intrusion. If it were otherwise, the only guidance that courts would have in determining whether certain conduct by the police constituted an unlawful search of a motel room would be the vague and conclusory statement that motel guests have a diminished expectation of privacy as compared to residents of private homes.
That reference to the "particular type of intrusion" is also fatal to the government's third argument, which said that because conversations can be overheard due to close proximity to other rooms and that hotel staff can enter rooms and find contraband, the shared hallways are places cops can let drug dogs legally roam. But a drug dog's sniff is not either of the state's examples, so the analogy is not only bogus, but an unlawful presumption.
We do not agree, however, that a room occupied by a motel guest is more vulnerable to a warrantless canine sniff than an apartment, condominium or house simply because other guests occupy nearby rooms or because the rooms may be entered by motel staff to perform certain functions unless guests place a ‘‘Do Not Disturb’’ sign on the door.
And, while motel rooms necessarily won't contain the long list of personal effects and papers people store in their homes, they're far from devoid of personal effects.
Again, such guests ordinarily do not keep all of their personal effects in their rooms because a motel room frequently is a temporary accommodation or lodging and not the guest’s permanent residence. That fact, however, does not mandate the conclusion that the personal effects that guests often do keep there—no matter how private or personal they may be—should be subject to appreciably less protection under the law. On the contrary, we see no reason why a motel guest reasonably cannot expect a degree of privacy in his or her room sufficient to preclude random or arbitrary intrusions by the police.
The court affirms the sniff was a search and it was not permissible just because officers could access the hallways and walkways outside of the motel rooms without a warrant.
We see no reason why the fact that the police in the present case were lawfully present in an open-air walkway abutting the defendant’s motel room makes any appreciable difference with respect to this analysis. The relevant question is not how easy it may be to gain lawful access to the door of a particular dwelling or lodging, but what conduct those occupying that space reasonably may expect from persons who actually have such access.
Finally, the court points out that even the government doesn't believe its own arguments. If it did, it would not have implied that it would find this sort of behavior by law enforcement objectionable on some level.
We note, in addition, that, if the state were correct that a canine sniff of the exterior door of a motel room is an event altogether lacking in constitutional significance, the police would be entitled to roam through the corridors of a motel conducting canine sniffs of some or all of the doors to those rooms despite having no particularized cause to believe that any of them contained drugs. In tacit acknowledgment that our citizenry would find this conduct unacceptable, the state asserts that there is no reason to believe that the police in Connecticut would engage in such a trawling exercise, even though they could do so lawfully.
If the state finds its own arguments conducive to objectionable behavior by law enforcement officers, the court can't be expected to sign off on it.
Even if we shared the state’s confidence in that regard, however, the fact that it would be legally permissible for the police to go from door to door conducting suspicionless canine sniffs throughout the motel is itself reason to doubt the soundness of the state’s constitutional argument.
The end result for Connecticut cops? Warrants are needed for drug dog sniffs in situations like these. Reasonable suspicion is not enough.
[W]e are not persuaded that an exemption from the warrant requirement should be extended to a canine sniff of the exterior door to a motel room, as the state advocates. We believe, rather, that, in the present context, the ‘‘balance between law enforcement interests and [an individual’s] privacy interests . . . tips in favor’’ of the latter, given that ‘‘our state constitutional preference for warrants [occupies the] dominant place in that balance . . . .’’ Accordingly, we reject the state’s claim that a canine sniff of the exterior door to a motel room is lawful if supported by a reasonable and articulable suspicion and conclude, instead, that such a search satisfies state constitutional requirements only if it follows the issuance of a warrant founded on probable cause.
That's the standard in the state now. Law enforcement officers need to seek a warrant to run a drug dog around near hotel/motel room doors. The expectation of privacy isn't as elevated as when a person is in their own home, but there's still enough of an expectation that officers can no longer assume rooms used temporarily and accessible by employees are also accessible to them without any additional paperwork or probable cause.
Earlier this year we were excited to see the Filecoin Foundation give the Internet Archive its largest donation ever, to help make sure that the Internet Archive is both more sustainable as an organization, and that the works it makes available will be more permanently available on a more distributed, decentralized system. The Internet Archive is a perfect example of the type of organization that can benefit from a more distributed internet.Another such organization is the Freedom of the Press Foundation, which, among its many, many projects, maintains and develops SecureDrop, the incredibly important tool for journalists and whistleblowers, which was initially developed in part by Aaron Swartz (as DeadDrop). So it's great to see that the Freedom of the Press Foundation has now announced the largest donation it has ever received, coming from the Filecoin Foundation for the Distributed Web (the sister organization of the Filecoin Foundation):
Today, for the first time, that calculus has changed. We're thrilled to announce the largest grant in the history of Freedom of the Press Foundation that will ensure SecureDrop survives and thrives for years to come. The Filecoin Foundation for the Decentralized Web a new grantmaking organization whose mission is to permanently preserve humanity's most important information is funding FPF at over $1.7 million for each of the next three years, for a total of $5.8 million.The funding will largely go towards sustaining and expanding our SecureDrop team, funding the development of the next-generation of the system, including exploring a new zero-trust architecture for the decentralized servers. This grant will ensure that SecureDrop will not only be sustainable over the long term, but will be easier to use and hopefully safer than ever. In short, it will have a game-changing impact on how we can build and improve SecureDrop for journalists around the world. You can read about some of our technical plans for the future here.
This is great to see as SecureDrop is another one of those tools that is so key, but as an open source project is often in a precarious position without the financial support to make sure that there is active development.
Readers here will know that we've followed the trademark and copyright lawsuit filed by the estate of Dr. Seuss against ComicMix LLC, creators of the mashup book Oh, the Places You'll Boldly Go! The entire thing has been a multi-year rollercoaster designed to be serpentine, with ComicMix arguing that the mashup book was transformative and covered by fair use, and winning on that front, only to have the copyright portion of the argument overturned on appeal. Go and read Cathy Gellis' writeup on the appeal; it's incredibly detailed and informative.But if anyone was hoping to see this case progress up the federal court ranks, they will be both disappointed and sad. Disappointed because the parties have now settled the case with ComicMix agreeing to acknowledge that the book did, in fact, infringe on Suess' copyrights.
Dr. Seuss Enterprises LP and the makers of the Dr. Seuss/"Star Trek" mashup book "Oh, the Places You'll Boldly Go!" have settled Seuss' copyright infringement claims, according to a Tuesday filing in San Diego federal court.In an agreement filed with the court, the parties agreed that the book infringes Seuss' copyrights and permanently bars ComicMix LLC, former "Star Trek" writer David Gerrold, illustrator Ty Templeton and others from selling it, while Seuss agreed to drop any claims for damages or attorneys' fees.
The court document is embedded below so you can see it for yourself. This is normally where I would rant and rave about how these settlements, which might make sense for one or both sides of a given conflict, are actually very bad for the larger public as they do not properly resolve the open questions contained in the dispute. In this case, the full weight of the court and legal system has not had its say on whether the mashup book infringed Suess' copyrights. Two courts have disagreed and this could have progressed further, potentially up to the Supreme Court, but the settlement puts a stop to that process.That said, it's difficult to be to rant-y and rave-y about this particular settlement given the reason it was sought out. Remember that part I said above about this being sad? Well...
The defendants' attorney Dan Booth of Dan Booth Law said in a statement that his clients settled because of Templeton's diagnosis of Stage 3 colorectal cancer earlier this year."After five years of litigation and with the pre-trial deadlines looming, as Ty's collaborators and friends, we refuse to put him through any additional stress that would in any way impinge on his health and recovery. To the credit of the people at Dr. Seuss Enterprises, they didn't want to put Ty through that either," Booth said. "So we joined in a motion to end the suit the day before Ty's surgery, in order to alleviate the less serious pain in his butt."
Two things I absolutely have to mention. First, I appreciate the hell out of Booth including a butt joke in a statement about his friend having colorectal cancer. I imagine that he knows Ty would be okay with such a joke, in which case this is just plain good comedy. Second, and more important, the proper framing of this news story should be that the Dr. Seuss Estate extracted a settlement over a copyright dispute for a book that very much did the estate no harm because it was bullying a cancer patient. Somehow, one imagines Suess himself not being in love with this idea, but that is pure speculation.What isn't speculation is that, as Cathy made the point in the earlier post, this represents a culture loss. Mashup art is not rare and has become, to some discernable level, a part of our culture. This settlement manages to add another bit of ammunition from protectionists who want to control and license every last thing related to their works, whether fair use ought to apply or not.I understand why this settlement was reached... but it both sucks and is sad.
Summary: In its 15 years as a micro-blogging service, Twitter has given users more characters per tweet, reaction GIFs, multiple UI options, and the occasional random resorting of their timelines.The most recent offering was to give users the option to create posts designed to be swept away by the digital sands of time. Early in 2020, Twitter announced it would be rolling out "Fleets" — self-deleting tweets with a lifespan of only 24 hours. This put Twitter on equal footing with Instagram's "Stories" feature, which allows users to post content with a built-in expiration date.In the initial, limited rollout of Fleets, Twitter reported that the feature showed advantages over the platform's standard offering. Twitter Comms tweeted that initial testing looked promising, stating that it was seeing "less abuse with Fleets" with only a "small percentage" of Fleets being reported each day.Whether this early indicator was a symptom of the limited rollout or users viewing self-deleting abuse as a problem that solves itself, the wider rollout wasn't nearly as easy as earlier indicators nor was it relatively abuse free. Fleet’s full debut arrived in the wake of an incredibly contentious U.S. presidential election — one marred by election interference accusations and a constant barrage of misinformation. The full rollout also came after nearly a year of a worldwide pandemic, which resulted in a constant flow of misinformation across multiple social media platforms globally.While amplification of misinformation contained in Fleets was somewhat tempered by their innate ephemerality, as well as very limited interaction options, it seemed unclear how — or how well — Twitter was handling moderating misinformation spread by the new communication option. Extremism researcher Marc-Andre Argentino was able to send out a series of "fleets" containing misinformation and banned URLS, noting that Twitter only flagged one that asserted a link between the virus and cell phone towers.Samantha Cole reported other Fleet moderation issues. Writing for Motherboard, Cole noted that apparent glitches were allowing users to see Fleets from people they had blocked, as well as Fleets from people who had blocked them. Failing to maintain settings that users set up to block or mute others created more avenues for abuse. Cole also pointed out that users weren't being notified when their tweets were added to Fleets, providing abusive users with another option to harass while the targets of abuse remain unaware.Company Considerations:
How can Twitter prevent new features from duplicating existing moderation problems?
How can companies test a feature’s initial rollout to better detect possible abuses, and therefore resulting in less moderation needs in the wider rollout?
How does ephemeral content affect moderation efforts and moderation response time?
If issues remain unsolved or poorly-addressed, who has the power to shut down or temporarily disable a new feature?
How much time should moderation teams be given to adjust to new responsibilities and new inputs when a new feature is rolled out? What metrics would be useful to determine whether moderation responses are successfully addressing new abuses and problems?
What processes should companies have in place to mitigate damage if a feature doesn't perform in the expected way and/or creates unforeseen problems?
Does "fleeting" content have the potential to cause moderators to view abusive posts as problems that will solve themselves? How can this mindset be discouraged or counteracted?
Resolution: Twitter's immediate response to the issues during the full rollout was to temporarily slow the deployment of the feature to users. While the issues that impacted moderation never really dissipated, the feature itself did. Twitter noted that Fleets did not have the uptake it expected. Although Fleets was supposed to encourage more engagement from Twitter users who lurked more than posted, observers noted that the feature appeared to be used mostly by users who were already heavily-engaged with the platform.With the feature never being much more than a novelty for Twitter die-hards, Twitter killed off the feature on August 3, 2021, taking with it the moderation problems the self-killing Fleets had created.Originally posted to the Trust & Safety Foundation website
It's no secret that Amazon-owned Twitch has had a rough go of it for the past year or so. We've talked about most, if not all, of the issues the platform has created for itself: a DMCA apocalypse, a creative community angry about not being informed over copyright issues, unclear creator guidelines for content that result in punishment from Twitch while some creators happily test the fences on those guidelines, and further and ongoing communication breakdowns with creators. All of that, mind you, has taken place over the last 12 months. It's been bad. Really bad!But great news: now it's even worse! Someone managed to get into the Twitch platform and leak it. As in pretty much all of it. And even some information on a Steam-rival Amazon is planning to release. Seriously.
An anonymous hacker claims to have leaked the entirety of Twitch, including its source code and user payout information.The user posted a 125GB torrent link to 4chan on Wednesday, stating that the leak was intended to “foster more disruption and competition in the online video streaming space” because “their community is a disgusting toxic cesspool”.The leaked Twitch data reportedly includes:-The entirety of Twitch’s source code with comment history “going back to its early beginnings”-Creator payout reports from 2019-Mobile, desktop and console Twitch clients-Proprietary SDKs and internal AWS services used by Twitch-“Every other property that Twitch owns” including IGDB and CurseForge-An unreleased Steam competitor, codenamed Vapor, from Amazon Game Studios-Twitch internal ‘red teaming’ tools (designed to improve security by having staff pretend to be hackers)
As you can see, yeah, pretty much everything. And keep in mind that whoever leaked this via torrent has noted that this is "part 1". Now, while a great deal of attention is being paid to Vapor, an unreleased platform created by Amazon to compete with Steam, let's focus instead on the release of the financial compensation for Twitch creators. Because this represents yet another failure by Twitch to protect its own creative community.How detailed are these financial records. Extremely, as it turns out, with names and dollar amounts attached so that enterprising individuals are able to rank them. For instance, my own beloved Critical Role appears to be the top Twitch earner since 2019.
Now, I love Critical Role and am quite pleased that they're doing so well for themselves. But I'm pretty sure they also aren't loving their exact compensation through Twitch being out there for the entire world to see. I need to avoid getting into a victim-blaming issue here, since Twitch is very much a victim of this hack/compromise/leak... but we also don't have details from Amazon as to how this leak occurred, only that it is authentic. The next question is obvious: did Twitch do something stupid that left itself vulnerable to this sort of thing?We don't know. But this is the problem when a platform torches its reputation among its own creative like Twitch has over the last year or so. There's no goodwill in the bank for Twitch to rely on as it navigates through the fallout of all this. And, while it's worth noting that the person posting this leak claims they did so out of anger with how Twitch operates and its "toxic cesspool" of a community, the public and media framing of this leak has shown little sympathy for the platform overall.
This all comes at a time of much tribulation for Twitch, with the #DoBetterTwitch/#TwitchDoBetter hashtags at the forefront of efforts by users to demand a better service from the platform, including boycotts to demand action over hate raids. Twitch seems to be making some positive moves, but then always finds a way to do something terrible too.
If Twitch wants to start repairing this reputation, it should be in full "good PR" mode: admit what happened, be transparent, do not talk about other great things you've done, build a plan to repair this. Sadly, given Twitch's history, it's an open question whether it will do the right thing or not.
Next time you get an assignment at work, identify its scope and success metrics, then repeat them to your boss, and once you're both on the same page, get confirmation you understand what's required and when its due.
For over a year now, we have discussed Facebook's decision to require users of Oculus VR headsets to have active Facebook accounts linked to the devices in order for them to work properly. This decision came to be despite all the noise made by Oculus in 2014, when Facebook acquired the VR company, insisting that this very specific thing would not occur. Karl Bode, at the time, pointed out a number of potential issues this plan could cause, noting specifically that users could find their Oculus hardware broken for reasons not of their own making.
The changes will also impact the functionality of Oculus Quest's "Link," which lets users connect the standalone VR headset to a PC to expand its functionality. It also begs the question: what happens if you get banned by Facebook due to its incoherent and inconsistent moderation strategies? You suddenly can't use your VR headset because Facebook's algorithms stupidly ban you for posting photos of yourself breastfeeding?
And then, to the surprise of nobody here at Techdirt, a version of that very thing happened. Facebook users that had their accounts locked, typically due to having those accounts compromised by outside bad actors, found themselves unable to use their gear as normal and unable to get support through Facebook, especially if the issues were on legacy Oculus hardware for which the end user had not paid Facebook a penny. But a wonderful workaround was discovered! If those users went out and bought a brand new Oculus VR headset, suddenly Facebook support returned their messages.None of this changed the core problem: what happens to owned hardware when suddenly a user's Facebook account wasn't accessible. Well, we all learned the answer to that question this week when Facebook accidentally decided to play a game of internet hide-and-seek by borking its BGP routing.
Facebook owns VR headset maker Oculus, and controversially requires Oculus Quest users to log in with a Facebook account. In numerous Reddit threads, many Quest owners say they have been able to use their headsets during the outage—to play VR games on Steam, for instance—but some say they can't load their Oculus libraries, and those who just took a Quest 2 out of the box have reported that they're unable to complete the initial setup."We're aware that some people are having trouble accessing our apps and products," Oculus wrote in one thread. "The teams are hard at work getting things back to normal as quickly as possible, and we apologize for any inconvenience."
It should be noted that these are problems of Facebook's making, not end users. The decision to require linked Facebook accounts to use the features on the Oculus created this problem. And, frankly, it was a decision that rendered no true benefit to the customer. Facebook made this move specifically so that it could track user behavior for advertising purposes, all under the guise of just how great and easy it is for Oculus users to be able to login with just a Facebook account. Yawn.But, when Facebook found all of its platforms unreachable on October 4th, Oculus owners got the tangential screw-job.
Facebook says that today's extended outage did not compromise user data—it was actually a pretty boring networking error. "Our engineering teams have learned that configuration changes on the backbone routers that coordinate network traffic between our data centers caused issues that interrupted this communication, the company posted on its blog. "This disruption to network traffic had a cascading effect on the way our data centers communicate, bringing our services to a halt."
Services like a properly running and fully functional Oculus VR headset... for no reason other than Facebook greed. When you're very busy trying to make the claim that you aren't too big that you should be broken up, that you don't have too much control over the everyday lives of the public, or that you don't have too many tie-ins to daily life, well, this was not a good look.Although, as I will never stop taking this victory lap on behalf of Karl Bode, it certainly was predictable.
More cities are adopting an approach to mental health emergency calls that steers calls away from police officers and towards professionals who are trained to respond to mental health crises with something other than force deployment.Early results have shown promise in cities like Denver, Colorado and New York City, New York. These response teams are not only better suited to handling mental health calls, but they're less expensive than sending cops and/or needlessly involving the carceral system. Law enforcement agencies command outsized portions of city budgets. Shifting small portions of these budgets to alternatives like these makes better use of these funds, providing residents with options that are far more effective -- and cost effective -- than the usual method of sending more expensive government employees to respond to problems they're ill-equipped to handle.A couple of cities in California are experimenting with mental health response teams. The teams in use in Sacramento and Oakland were formed by residents in response to the tragic killing of a young man suffering from schizoaffective disorder by police officers.
That day, Miles was having a schizoaffective episode at the family’s home in Walnut Creek, CA, a city a few miles east of Oakland. First Miles’ grandmother, and then Taun Hall herself, called 911. Hall wanted to get her son to a hospital where he could receive treatment. She felt her only option was to call the police.But when the Walnut Creek police officers arrived, the situation escalated quickly.“[The police officers] were shouting at him and, you know, doing commands,” Hall said. “Someone who is mentally impaired doesn’t respond, doesn’t understand, because they’re not in the same frame of mind.”Miles Hall ran towards the officers, who first shot him with ‘less-lethal’ ammunition called bean bag rounds. When he continued running, two officers shot him with their handguns. Miles Hall was transported to John Muir Hospital, where he died from his injuries.
MH First Sacramento and MH First Oakland are both part of the same project. The MH stands for Miles Hall just as much as it stands for mental health. Both are offshoots of the Anti Police Terror Project, an advocacy group seeking to end the longstanding use of violence by police officers against people of color. Currently, both response teams are limited to running mental health hotlines on weekends only but both hope to expand on that with the recent COVID wave starting to recede in the state. They're also hoping to secure more funding to expand their operations to offering response teams that can handle mental health calls requiring in-person assistance.Residents of Oakland will soon have one more option for mental health calls that won't involve law enforcement.
Now, a new pilot project has been funded by the city of Oakland to take even more of the workload off the shoulders of the police.“A project called MACRO, Mobile Assistance Community Response of Oakland,” explained [Coalition for Police Accountability coordinator Rashidah] Grinage. “And what it does is it says that 911 calls that are not necessarily required to have a police response, namely their low-level calls, they are sometimes mental health crises, but there can be other kinds of incidents as well. Conflicts between neighbors, problems with somebody blocking a driveway, incidents where a police officer is not really a necessary responder, MACRO will provide civilian responses to these kinds of 911 calls for service.”
MACRO is based on the CAHOOTS (Crisis Assistance Helping Out On The Streets) program currently running in Eugene, Oregon. That program has achieved considerable success, not the least of which is the savings of over $6 million a year in public safety spending.It's too early to tell whether these programs will replicate the successes seen elsewhere. But it is clear more options like these are necessary if we want to keep more people alive. Police officers shouldn't be expected to handle these situations well. They're simply not trained to perform this sort of public assistance. Unfortunately, they're the default option in most cases, which means officers responding to mental health calls will fall back on the training they have received, which mostly involves subduing people and responding to perceived threats -- neither of which tends to work out well for people who are already struggling to maintain their grip on reality.
There isn't a day that goes by where Tesla hasn't found itself in the news for all the wrong reasons. Like last week, when Texas police sued Tesla because one of the company's vehicles going 70 miles per hour in self-driving mode failed to function properly, injuring five officers.
Five Montgomery County deputy constables were injured Saturday when the driver of a Tesla rear-ended a cruiser during a traffic stop, causing a chain-reaction crash, authorities said. https://t.co/FfteMQQ4zL— Pooja Lodhia (@PoojaOnTV) February 27, 2021
If you hadn't been paying attention, Teslas in self-driving mode crashing into emergency vehicles is kind of a thing that happens more than it should. In this latest episode of "let's test unfinished products on public streets," the Tesla vehicle in "self-driving" mode's systems failed completely to detect not only the five officers, but their dog, according to the lawsuit filed against Tesla:
The Tesla was completely unable to detect the existence of at least four vehicles, six people and a German Shepherd fully stopped in the lane of traffic, reads the suit. The Tahoes were declared a total loss. The police officers and the civilian were taken to the hospital, and Canine Officer Kodiak had to visit the vet."
Of course for Musk fans, a persecution complex is required for club membership, resulting in the belief that this is all one elaborate plot to ruin their good time. That belief structure extends to Musk himself, who can't fathom that public criticism and media scrutiny in the wake of repeated self-driving scandals is his own fault. It's also extended to the NDAs the company apparently forces Tesla owners to sign if they want to be included in the Early Access Program (EAP), a community of Tesla fans the company selects to beta test the company's unfinished self-driving (technically "Level 2" driver-assistance system) on public city streets.The NDA frames the press and transparency as enemies, and urges participants not to share any content online that could make the company look bad, even if it's, you know, true:
"This NDA, the language of which Motherboard confirmed with multiple beta testers, specifically prohibits EAP members from speaking to the media or giving test rides to the media. It also says: "Do remember that there are a lot of people that want Tesla to fail; Don't let them mischaracterize your feedback and media posts." It also encourages EAP members to "share on social media responsibly and selectively...consider sharing fewer videos, and only the ones that you think are interesting or worthy of being shared."
Here's the thing: you don't need to worry about this kind of stuff if you're fielding a quality, finished product. And contrary to what Musk fans think, people concerned about letting fanboys test 5,000 pound automated robots that clearly don't work very well are coming from a valid place of concern. Clips like this one, for example, which show the Tesla self-driving system failing to perform basic navigational functions while in self-driving mode, aren't part of some elaborate conspiracy to make Tesla self-driving look bad and dangerous. There's plenty of evidence now clearly showing that Tesla self-driving, at least in its current incarnation, often is bad and dangerous:
Ever since the 2018 Uber fatality in Arizona (which revealed the company had few if any meaningful safety protocols in place) it's been clear that current "self-driving" technology is extremely undercooked. It's also become increasingly clear that widely testing it on public streets (where other human beings have not consented to being used as Guinea pigs) is not a great idea. Especially if you're going to replace trained testers with criticism-averse fanboys you've carefully selected in the hopes they'll showcase only the most positive aspects of your products.We've been so bedazzled by purported innovation we've buried common sense deep in the back yard. Wanting products to work, and executives to behave ethically, is not some grand conspiracy. It's a reasonable reaction to the reckless public testing of an unfinished, over-marketed product on public streets.
Roughly a year ago, we discussed a lawsuit brought by K&K Promotions, the company that holds the trademark and publicity rights for the now-deceased stuntman Evel Knievel, against Disney. At issue was a character in Toy Story 4 named Duke Caboom, a toy version of a motorcycle stuntman that certainly had elements of homage to Knievel. But not just Knievel, which is important. Instead, a la several lawsuits Rockstar Games has faced over characters appearing in the Grand Theft Auto series, Caboom was an amalgam of retro-era stuntmen, not a faithful depiction of any one of them, including Knievel. And, while some who worked on the film even mentioned that Knievel was one of the inspiration points for the character, they also noted that Knievel's routine, garb, and mannerisms were hardly unique for stuntmen in that era. Despite that, K&K insisted that Caboom was a clear ripoff and appropriation of Knievel.Well, Disney moved to dismiss the case, claiming essentially the above: Duke Caboom is based on a compilation of retro-era stuntmen. And the court has now ruled, siding with Disney and dismissing the case.
The ruling from U.S. District Judge James Mahan concluded that the Disney character — a 1970s stuntman action figure — “contains significant transformative elements” that make the character “’reminiscent’ of Evel Knievel, but not a literal depiction.”Mahan noted the discrepancies between the real-life celebrity stuntman and the animated supporting character from the film.“The action figure has a different name, different clothing, Canadian rather than American insignia, the addition of a moustache and a different hair color and style,” Mahan wrote.
The reasons for siding with Disney don't stop there. The court put this issue through the Rogers test. The court concluded that Duke Caboom was an integral character in the film (this author can confirm that, having seen the film), that there were no attempts at convincing film-goers that Knievel was in any way involved in the film's production, nor that the character was a 1-to-1 likeness of Knievel. This is the GTA stuff all over again, in other words. The character is a combination of several retro-pop-culture references to stuntmen from decades past, incorporating elements from several individuals to create a new character. Given the film's free speech and artistic protections, the court really had no other way to rule on this.Perhaps the most surprising aspect of the case is that no settlement was reached prior to this ruling. It has become depressingly typical for these cases to not reach a conclusion and result, instead, in some confidential ruling where nobody knows if or how much money changed hands in either direction. That would lead me to believe that K&K either was unwilling to play settlement ball or, perhaps more likely in this instance, Disney knew it was on such solid ground, it didn't need to engage in settlement talks.Either way, it's nice to see a ruling get this right on artistic and speech grounds.
Over the past several months, there have been a couple of stories that certainly had owners of Sony PlayStation 4 and PlayStation 3 consoles completely wigging out. First came Sony's announcement that it was going to shut down support for the PlayStation Store and PlayStation Network on those two consoles. This briefly freaked everyone out, the thinking being that digitally purchased games would be disappeared. Sony confirmed that wouldn't be the case, but there was still the question of game and art preservation, given that no new purchases would be allowed and that in-game purchases and DLC wouldn't be spared for those who bought them. As a result of the outcry, Sony reversed course for both consoles specifically for access to the PlayStation Store, nullifying the debate. Except that immediately afterward came word of an issue with the PS3 and PS4 console batteries and the way they check in with the PlayStation Network (PSN) to allow users to play digital or physical game media. With the PSN still sunsetting on those consoles, the batteries wouldn't be able to check in, and would essentially render the console and all the games users had worthless and unplayable.But now that too has been corrected by Sony, albeit in a completely unannounced fashion.
PlayStation owners wanting to preserve their PS4 libraries well into the future can breathe a sigh of relief, as the system's latest firmware update reportedly fixes a time bomb found inside every console.While Sony's official patch notes for the 9.00 update strangely make no mention of the CMOS fix, that lack of mention may point to a change in its attitude about PlayStation's legacy platforms. With PS5's backward-compatibility limited (so far) to PS4 titles and in the absence of a major overhaul to its PS Now streaming library of games, taking the step to push an update that nixes the CMOS issue on PS3 as well would be a welcome shift.
So now PS4 owners are off the hook, though whether they know it or not appears to be a matter of whether they read the news about this on sites like this. PS3 owners, meanwhile, don't currently have a fix in place. And that really does highlight a continuing messaging and transparency problem when it comes to Sony and how it treats its PlayStation customers.Sony has, far too often, had to either reverse course on its plans when its own fans go apeshit, such as when it finally enabled cross-console play for PlayStation games, or instead has had to weather tough public relations and legal storms when it kept to its plans, such as when it removed useful features from the PS3 via firmware updateafter the public had already bought the console.It's great that the company fixed this problem for the PS4 owners, but what about everyone else? Why not let people know the fix has been made? Why can't this company communicate?
Techdirt's coverage of open access -- the idea that the fruits of publicly-funded scholarship should be freely available to all -- shows that the results so far have been mixed. On the one hand, many journals have moved to an open access model. On the other, the overall subscription costs for academic institutions have not gone down, and neither have the excessive profit margins of academic publishers. Despite that success in fending off this attempt to re-invent the way academic work is disseminated, publishers want more. In particular, they want more money and more power. In an important new paper, a group of researchers warn that companies now aim to own the entire academic publishing stack:
Over the last decade, the four leading publishing houses have all acquired or developed a range of services aiming to develop vertical integration over the entire scientific process from literature search to data acquisition, analysis, writing, publishing and outreach. User profiles inform the corporations in real time on who is currently working on which problems and where. This information allows them to offer bespoke packaged workflow solutions to institutions. For any institution buying such a workflow package, the risk of vendor lock-in is very real: without any standards, it becomes technically and financially nearly impossible to substitute a chosen service provider with another one. In the best case, this non-substitutability will lead to a practically irreversible fragmentation of research objects and processes as long as a plurality of service providers would be maintained. In the worst case, it will lead to complete dependence of a single, dominant commercial provider.
Commenting on this paper, a post on the MeaseyLab blog calls this "academic capture":
For those of us who have lived through state capture, we felt powerless and could only watch as institutions were plundered. Right now, we are willing participants in the capture of our own academic freedom.Academic capture: when the institutions' policies are significantly influenced by publishing companies for their profit.
Fortunately, there is a way to counter this growing threat, as the authors of the paper explain: adopt open standards.
To prevent commercial monopolization, to ensure cybersecurity, user/patient privacy, and future development, these standards need to be open, under the governance of the scholarly community. Open standards enable switching from one provider to another, allowing public institutions to develop tender or bidding processes, in which service providers can compete with each other with their services for the scientific workflow.
We've talked far too many times about how the DMCA takedown processes across internet industries as they stand are wide, wide open for abuse. From churches wielding copyright to attempt to silence critics engaging in protected speech, to lawyers using copyright to try to silence critics engaging in protected speech, to freaking political candidates abusing YouTube's DMCA notice process to silence critics engaging in protected speech... well, you get the idea. The point is that we've known for a long, long time that the current method by which the country and companies currently enforce copyright law tilts so heavily towards the accuser that it's an obvious avenue for misuse.And this is an issue created by bad actors big and small. Hell, apparently you cannot even criticique a sophomoric prank joke troop on YouTube without being targeted using copyright law.
Last week, Tripping, a smallish YouTube creator with about 88,000 subscribers, faced an uphill battle to keep one of his videos up. It was pretty standard as far as social commentary videos go on YouTube: an 11-minute presentation about “The Rise and Fall of NELK,” a prank channel that has nearly 7 million subscribers.But since Tripping posted it in May, it’s been flagged for “copyright” infringement several times. Last week, it was successfully taken down by YouTube before being reinstated over the weekend, when 21-year-old Quentin, who owns the account, disputed it. But Quentin is now concerned that his video criticizing the pranksters was successfully censored by the Nelk Boys themselves through a loophole he says YouTube isn’t vetting carefully enough.
That appears to be precisely what happened. The back and forth over this 11 minute video is fairly amazing. The whole video called out the Nelk Boys for doing a bunch of dumb stuff, most specifically with regards to ignoring COVID and encouraging others to do the same. Other behavior was questioned as well. A week after posting it, Quentin's video got flagged for a copyright claim and was blocked. He fought that claim and the video was put back online. Then, months later, Quentin was assessed his first copyright strike by YouTube, meaning his account was now in jeapordy of being shut down if future strikes occurred.And the email from YouTube listed Kyle Forgeard of the Nelk Boys as the copyright owner issuing the claim resulting in the copyright strike.
“They’re using copyright ... and YouTube’s system as a way to avoid the criticism; it’s a very common thing on YouTube,” he said. “There’s no way for YouTube to determine what’s this or that. If Nelk [claims copyright], they’re going to have to accept it out of respect for Nelk and YouTube not getting sued. But with fair use and for commentary, you’re allowed to use clips in that manner.”When I reached out, a spokesperson at YouTube said users can file a dispute if they think their account was flagged erroneously, and, in this case, it was. I then asked them how YouTube is going to improve this system — especially when algorithmic moderation has become a widespread issue time and time again — but I did not hear back.
And that's why nothing ever changes. The onus for getting protected speech back online, in the vaunted opinion of YouTube, falls squarely on the victim of the censorship-by-copyright tactic. Any time you try to kickstart a conversation about how to improve this system to make it balanced instead of tilted towards the claimaint, you get crickets. And the end result is the YouTube creator community being completely rudderless as to what exactly they're supposed to do.
Quentin said he feels somewhat powerless when something like this comes up: “[Nelk] are so much larger than me. They have millions of subscribers and fans, and I only have a minimal fraction of what they have. All I’m betting on is YouTube is finally reviewing it and coming to terms with what’s right.”He added, “I wouldn’t be surprised if they still want that video down.”He just hopes YouTube “implement[s] a system that prevents larger channels from filing claims like this and have it go directly through because copyright is a serious thing.”
As is fraud and censorship, I might add. But for far too long YouTube has been reluctant to do anything about that side of this equation, preferring instead to molify the copyright industries and leave some segment of its user base hung out to dry.
The Los Angeles Police Department has spent years compiling a "gang database." The term "compile" is used loosely, because the LAPD decides people are gang members just because they know gang members, or are related to them, or live in the same buildings, or work near them, or pass through gang-controlled neighborhoods, or go to school with gang members, or just (as non-gang people are wont to do) wear clothes, shoes, and hats. It's ridiculous.And when that's not "inclusive" enough, LAPD officers fake it. LAPD officers have falsified records to justify unjustifiable stops and searches, something that ultimately resulted in criminal charges against three officers. But even with this wealth of bogus and barely supported information, the gang database (CALGANG) still has one glaring omission: the Los Angeles Sheriff's Department.
A 63-page civil lawsuit, filed on Sept. 18 in California Superior Court, alleges that the gang’s power stems from its close ties to Sheriff Alex Villanueva, who was elected in 2018 on the promise to “reform, rebuild and restore” the scandal-plagued department. Since then, however, disillusionment with Villaneuva has grown over several of his decisions, including deactivating misconduct investigations. In July, Los Angeles Magazine dubbed him “the Donald Trump of L.A. Law Enforcement.” And the eight deputies allege in their complaint that Villanueva protects the Banditos and other deputy gangs, even rehiring deputies fired for misconduct. According to the lawsuit, the approximately 90-member Banditos maintain a “stranglehold” on the unincorporated communities east of downtown through a reign of unlawful policing, violence, and intimidation from their base at the East Los Angeles station. Members sport tattoos featuring a pistol-wielding, sombrero and bandolier-wearing skeleton with a thick mustache and a unique number for each member.
Hundreds of Los Angeles County sheriff’s deputies said they have been recruited to join secretive, sometimes gang-like cliques that operate within department stations, according to the findings of a survey by independent researchers.The anticipated study into the problematic fraternities — which L.A. County officials commissioned the Rand Corp. to conduct in 2019 — found 16% of the 1,608 deputies and supervisors who anonymously answered survey questions had been invited to join a clique, with some invitations having come in the last five years.
According to the survey, the LASD's "gangs" were still "actively adding members" as of 2020. Presumably, the ringing in of a new year hasn't changed that. There is some internal resistance, however. 37% of deputies said cliques should be prohibited, which aligns them with about 100% of the non-LASD population. But who's going to police the police?Not Sheriff Alex Villanueva.
Sheriff Alex Villanueva has denied that “gangs” exist within the department but has also taken credit for addressing the problem with a policy that prohibits deputies from joining any group that commits misconduct.
You can't deny a problem exists and create a (weak, toothless) policy that addresses said nonexistent problem. And it would seem a straight reading of this policy would forbid LASD deputies from joining the LASD itself, which has a long. ugly history of misconduct.And if Villanueva is so intent on addressing this problem (the one he says isn't a problem), why would he make it almost impossible for the Department's oversight to do its job?
Inspector General Max Huntsman said Friday that Villanueva appeared this week for an interview after initially resisting a subpoena to answer questions about deputy cliques. The sheriff, however, refused to testify under oath, at his attorney’s instruction, so Huntsman said he declined to question him and now plans to ask a judge to order Villanueva to give sworn testimony.
The study further found that what little was being done by the LASD to address its internal clique problem was too weak and too disorganized to have any effect. Add that to the normal insularity found in law enforcement agencies -- one that treats anyone attempting to apply any discipline as the enemy of the rank-and-file -- and the problem shifts from "troublesome" to "festering, infected wound."Not ironically at all, the report also noted deputies wishing to join LASD gangs often committed misconduct to do so, most often engaging in deployments of excessive force. And yet, many inside the LASD see no problem with this misconduct, the misconduct committed by clique members, or the collateral damage to the public's trust.
About a quarter of those surveyed said they believe deputy cliques can be a positive influence by motivating a station’s staff or members of a particular unit…
Less disappointingly, a similar number said cliques hurt morale and alienate LASD employees. (Nothing was said about how these gangs affect the general public.) But, more disappointingly, the remaining 50% said having close knit groups of like-minded thugs on the force had no effect on the LASD's daily operations. And that may be true. But it's definitely having an effect on the victims of excessive force deployment and others who've had their rights violated by deputies who believe they're not only above internal policy, but above the law.