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As you might expect, Nike often finds itself involved in intellectual property stories. To be fair, the company has been on both sides of the IP coin. There are plenty of stories of Nike playing IP bully: the whole Satan Shoes dustup with MSCHF, its lawsuit happy practice when it comes to counterfeits, and so on. But the company has also found itself on the receiving end of IP action, sometimes very much deserved, sometimes not so much.Among the company's most guarded IP is the trademark the company has on its famous motto: JUST DO IT. Nike has gone after companies, typically during the trademark application process, whenever there is an attempt to trademark a "Just [word] it" phrase. Most of that action has centered around apparel or athletic companies. But now, a business that produces succulent plant arrangements largely advertised on TikTok has found its trademark application for "JustSuccIt" opposed by Nike.
Andrea Galbreath, the owner of a California-based succulent business, says Nike is opposing the trademark she owns for her company, JustSuccIt. The shoe and athleticwear giant said it opposes her trademark because JustSuccIt could be “damaging to their brand,” according to a TikTok posted by Galbreath on Saturday.“Nike is comin’ after me!” she says in the TikTok. “I’m just a small business in San Juan Capistrano, trying to plant happiness in the lives of others. So I’m doing my best to get ahead of this. Can you please help me tell Nike to leave me alone?”
Alright, let's stipulate something: Nike's slogan "JUST DO IT" is absolutely a famous trademark. That's important here, because famous marks are afforded way more protection than a standard mark. Because it is a famous mark, and deservedly so, Nike can go beyond the standard likelihood of confusion case for opposing the mark. You will notice that public confusion is not what Nike is complaining about above. Instead, it seems to be going with tarnishment as the reasoning, based on the claim that JustSuccIt would be damaging to its brand.
There is another recognized federal cause of action in the U.S. for famous trademarks known as dilution by tarnishment. This refers to use of a famous trademark in connection with goods or services of poor quality or of an unsavory nature. Dilution can occur even if the two companies are not competitors and there is no likelihood of confusion.
All very true and I suppose Nike's point here is that "JustSuccIt" sounds phonetically identical to "Just suck it", which could be construed as unsavory... except that it isn't in this case. The business sells arrangements made from succulents, a type of plant. I'm not particularly convinced that the first thing that would leap to most people's minds upon hearing "JustSuccIt" is even Nike's slogan. It certainly wasn't mine, though I admit to being wildly unsavory myself.The product or service in this case is not unsavory. The applied for trademark really isn't either, though I imagine Nike will play heavily on potential interpretations of it that are of an unsavory nature. Still, that's a hell of a fairly miniscule reason to oppose the trademark. And, if that's the approach, it essentially acknowledges that there isn't any concern about public confusion in the marketplace, nor the two companies competing against one another.So I guess the open question is whether the USPTO will consider "JustSuccIt" unsavory or not.
At this point, posts about Nintendo getting fan-made games or content removed from the internet over IP concerns are evergreen. Nobody should be surprised by this shit any more, though you should still be either very angry about it, or at least disappointed. The company is almost a caricature of an IP maximalist company: anything and everything that even comes close to touching its IP gets thrown at the company lawyers to deal with. It's bad enough to be parodied by the general public. This is where I remind you that companies like Nintendo have a wide spectrum of avenues for responding to fanworks. Depending on the IP in question, the company could do any of the following besides going legal: let fans have their fun, issue zero-dollar or cheap licenses to fans to legitimize their work, or incorporate fanworks into official releases by either licensing or employing these fans. Plenty of other companies have taken these routes, or others, and have survived just fine. Nintendo never does this.And so, here we are again with Nintendo getting footage of an unreleased fan-game disappeared from the internet, citing copyright. In this instance, one fan made a first person shooter game in the Unreal Engine so you can go hunting Pokémon as violently as possible.
For the past month, Reddit user Dragon_GameDev2 has been working on a side project imagining a PC Pokémon game, built using Unreal Engine, that you played in first-person.While your thoughts may now be drifting towards something resembling Pokemon Snap, Dragon_GameDev2 had more violent plans for this game. He instead showed off some videos where players were dropped into a Pokémon-filled landscape, given modern firearms, and set free to hunt (and defend themselves from) as many of the pocket monsters as they liked.
Now, were it not for Nintendo's reputation, someone might be able to convince me that the bloody, violent murder of video game Pokémon might have been the impetus for Nintendo's actions here. After all, the Pokémon series is very much not in the style of Doom or Quake. But that reputation does exist and I don't believe for a second that the violence depicted here has anything to do with the takedowns.Those takedowns, by the way, are not of the game itself. Rather, images and videos of the game being played that were shared on the internet is what was disappeared. Can Nintendo do this legally? Probably, though I could certainly make a fair use argument for it. Perhaps not a perfect one, but an argument nonetheless. But again, the question isn't so much can Nintendo do stuff like this, but should it?
This sucks, just like it always does, because unlike many other major international companies, Nintendo seems utterly unwilling—or even unable—to differentiate between commercial projects that infringe on their copyrights and fan-made playthings that are free and made for fun.
That, of course, is nonsense. Nintendo absolutely can make this differentiation. It chooses not to. Don't take that agency away from a company that worked quite hard to build a reputation for itself for absolutely hating its fans' attempt to express their fandom.Nintendo isn't confused. Nintendo hates you. Or, at least, it hates what some of you do in the name of your love for the company.
For three decades, the DOJ and FBI have barely tried (and always failed) to collect information about use of force by the nation's 18,000 law enforcement agencies. Despite occasional promises to be more thorough and do better, the FBI has, for the most part, done nothing with this opportunity -- one thrust upon it by a crime bill passed in 1994.The biggest problem is that submission of use of force data has always been voluntary. The Department of Justice only directly oversees the FBI. Neither entity can force local agencies to provide this data. These multiple levels of failure have led to the Government Accountability Office suggesting the national use of force database be put out of its useless misery as early as this year, rather than just be another thing tax dollars are wasted on.Local lawmakers could at least compel uniform collection and reporting of this data. They may not be able to mandate the release of this data to federal agencies, but they could at least ensure proper reporting occurs at the local level.Mandates like this are needed. But few localities have them. This sort of accountability must be forced on local agencies. Collecting information on use of force incidents and any attendant complaints or allegations of excessive force does nothing for law enforcement agencies. So, the data collections must be compelled because there's nothing innately compelling about collecting data that may show officers and agencies have unaddressed problems.The lack of accountability means any collections are hit and miss. And that data set is mostly misses. Unsurprisingly, when journalists go looking for this data in hopes of quantifying local law enforcement's generation of (and response to) citizen complaints, they come away with incomplete depictions of patterns and practices. That's the best case scenario. The worst case is journalists discovering agencies aren't compiling this data at all.What's been uncovered in Maine could likely be said about almost any other state in the Union.
A nearly year-long investigation into how Maine law enforcement agencies handle complaints against officers has uncovered widespread inconsistencies in record keeping and the public’s ability to access the information.WMTW’s 8 Investigates team partnered with the Maine Freedom of Information Coalition to review hundreds of documents and data that were obtained.The coalition contacted 135 Maine law enforcement agencies as part of the investigation. They were asked to provide the number of citizen complaints against officers from 2016 until now and details on any disciplinary action.The data and documents produced, or lack thereof, made clear that although it is public information, Maine has no uniform system for tracking and maintaining the records.
Why doesn't the state have this? Possibly because no one with any power ever thought it was necessary. Police departments -- until very recently -- often had the full support of elected officials. Those questioning officers' actions were considered outliers, fringe representatives that were sure to be ejected during the next election cycle.Law enforcement agencies also have powerful lobbyists who are capable of gutting legislation demanding more accountability and capable of tying agencies into restrictive contracts that forbid retention of information about misconduct or excessive force deployment. Police unions are one of the greatest contributors to decades of opacity and abusive behavior by law enforcement officers.At least the head of one of Maine's police unions seems to recognize the current state of affairs is, at the very least, problematic.
“Is that acceptable? I think we’ve got some work to do to be able to make sure that we’re a little more uniform,” said Augusta Police Chief Jared Mills.Mills is also the president of the Maine Chiefs of Police Association. He offered no excuses for department heads not responding but explained how strained resources might make data requests complicated.“They don’t all have that same data system. They don’t have that stuff at their fingertips,” Mills said.
That excuse doesn't hold up, though. Why don't they have this stuff at their fingertips? It would seem to be essential law enforcement data -- something that can help supervisors and police officials head off problems before they become too big to handle. Data like this would show if more training is needed or if some officers should be forced to seek employment elsewhere.It's not there because law enforcement agencies have comforted themselves by assuming everything is ok because there's no data that contradicts this assumption. And the assumption remains intact because agencies avoid collecting any data that might undermine it.Now, the guy quoted in this article? The police chief who also heads the police union? He could institute these changes. He runs a union that has the power to persuade state lawmakers to mandate uniform reporting and alter union contracts that may forbid the tracking and retention of these complaints. But somehow I think he won't. It's one thing to recognize a problem when approached for comment. It's quite another to actually go to war with the people you represent.
It's hard to believe that even after the huge disaster "link taxes" have been in Europe and Australia that people would push to have them in the United States, and yet here we are. This brewing bad idea has some foolish friends in Congress, who tasked the Copyright Office with doing a study on the viability of importing this nonsense into American law, and via our already over-encumbered copyright law. The Copia Institute filed a public comment as part of this study and provided testimony at a hearing in December. In both, we pointed out that a site like Techdirt is exactly the sort of small, independent media outlet such a scheme is supposed to help yet is instead exactly the sort of small, independent media outlet such a scheme most definitely would hurt.While some of its advocates insist it is not actually a "link tax" being proposed, and instead something fancier-sounding ("ancillary copyright"), the inevitable result will be equally ruinous to the very journalistic interests this scheme is ostensibly supposed to advance by destroying the very thing they all ultimately depend on: the ability to connect to audiences. It will have this effect because the whole point of this scheme is to attack the platforms and services that currently have the nerve to help them make that connection by linking to these media sites. After all, the thinking apparently goes, how dare these platforms and services deliver media outlets this valuable audience attention without paying for the privilege of getting to do them this enormous favor?The defects of this plan to essentially tax the platforms and services that provide media outlets with this critical benefit are significant. For example, it completely offends the goals and purpose of both copyright law and the First Amendment, which exist to help ensure that information and ideas can spread. It offends it by design, by deliberately creating a regulatory regime that punishes the platforms and services that facilitate this spread. It also offends the First Amendment more specifically in how it targets the expressive freedom of the platforms and services themselves to refer people to others' expression.It is also completely at odds with its own professed goal. These platforms and services are giving media outlets everything they ever said they wanted: audience attention. Yet now these outlets would bite the hand that feeds, and for no good reason. Because even to the extent that this scheme is predicated on the idea of helping journalistic enterprises make more money, it will have the exact opposite effect. No media outlet makes money without an audience. You can't profit from audience attention if there is no attention. And there won't be any attention with schemes like this obstructing platforms and services from connecting media outlets and their expression to those audiences.As we've seen in other countries, schemes like these have starved media outlets of their audience lifeblood by effectively unlinking them from the world. It has this effect in part because it deters the platforms and services that currently drive traffic to media outlets from being in the drive-traffic-to-media-outlets business anymore by making it way too expensive to do. Sure, with a scheme like this maybe some of the big platforms (Google News, Facebook) might suck it up and pay into the system (although, given what happened in Spain and Australia, when they each at various points refused to continue to do business there in the face of these sorts of schemes, perhaps they wouldn't). But given all the gnashing and wailing, even at this hearing, that Google and Facebook have too much power, it would make sense to make sure that there could be other platforms and service competitors to Google and Facebook. The more the big ones are resented for driving traffic to other sites the more important it is that it be possible for other platforms and services to be able to exist to do it instead.Yet that diversity in audience-facilitating services is exactly what compulsory licensing schemes like this one foreclose by inordinately exploding the cost of doing business for anyone who might want to build a platform or service capable of referring audiences to other sites. Those costs don't just come from the money itself needed to pay into the licensing system but also the potentially massive compliance costs associated with not running afoul of such a scheme's inevitably technical rules and also any defense costs involved with trying to avoid costly liability should someone accuse the service of not complying with those rules quite right. (As we wrote in our comment, the compulsory licensing system for music webcasters illustrates how hugely and deterrently expensive the costs of complying with a compulsory licensing systems like this proposed one can be.)And deterring these platforms and services it isn't going to do anything to make online journalism more profitable. For one thing, it in no way targets any of the reasons why it may not be profitable, to the extent that's even the case. After all, if distant corporate owners would prefer to starve local newsrooms in favor of skimming off profits, that's not a failure of copyright law that's causing the decline of local news. It's not even a failure of any particular journalistic profit model.But to the extent that the news business is legitimately under strain, schemes like these don't alleviate that strain because it was not the absence of this sort of ancillary right that caused any of the underlying problems in the first place. More likely culprits hurting the news business are things such as media consolidation, corporate governance models that emphasize quick profits over good journalism, advertising models that are offensive to user privacy, poor site design that doesn't retain readers' attention, and even paywalls and terrible site design that deliberately repel readership. It would make a lot more sense to correct these actual issues, or at least leave everyone free to innovate better monetization models if they are what's needed for media outlets to flourish as the economically sustainable entities we want them to be. Instead a scheme like this just papers over the actual problems and by throwing more copyright at everything creates all sorts of chilling new ones that now everyone will have to cope with, no matter how contrary to their expressive or economic interests.Because it WILL hurt them. It will suppress the reach of every media outlet's expression, and with it also their ability to profit from that reach. And it will hurt them this way without delivering any economic return, probably not to anyone but especially not to the smaller, independent outlets. Compulsory licensing systems are often profoundly inequitable, directing most of the money to big incumbent players and very little to the smaller creatives in the "longtail" of the money distribution chart. (Again, see the webcasting compulsory license for an example of this dynamic.) Furthermore, to the extent that some larger media outlets may envision doing special licensing deals with the big platforms like Google and Facebook, which they think they'll be able to strike in the extortive shadow of a scheme like this, it would still leave everyone else, especially the smaller, independent media outlets without that bargaining power, in even more trouble than they are already in now.Especially when such a scheme will meanwhile make it impossible to monetize audience attention that platforms and services are no longer legally able to freely deliver to them, unless these platforms and services spend a ton of money to comply with this scheme or be willing to risk infringement liability. By chilling these platforms and services it will destroy the Internet ecosystem these media outlets depend on to get that audience attention in the first place. And as a result it will diminish the diversity of independent journalistic voices, who will inevitably fade into unvisited obscurity. You almost couldn't invent a better system to destroy independent media if you tried.And that is in large part because, as it became clear in the hearing, this proposed scheme ultimately has little to do with actually supporting the economics of journalism writ large. Instead what emerged from the hearing was a perverse sense of entitlement, where some news outlets were arguing that if any audience-facilitating service happened to make money from the exercise of directing audience traffic to them, then this was somehow money that they were entitled to. This scheme only makes sense as a policy designed to pick the pocket of any business that happens to provide any audience facilitating service and is clearly built on a sense of resentment that anyone else might ever in any way profit from linking to someone else's expression, even when it still provides a symbiotic benefit to the media outlet behind the expression by helping it connect to its own audience. Not content to let this generous goose continue to lay all this economic opportunity on their doorstep, advocates of this scheme would rather use regulation like this to slaughter it in the misguided effort to grab up the imagined riches it greedily thinks such a scheme would magically reveal, irrespective how foolishly destructive such efforts would actually be to everyone.
The longer we live, the more we become accustomed to cop fiction.We live and let (our rights) die when cops swear in courts they smelled jazz cigarettes while engaging in a pretextual stop. Who can challenge that? A cop says he smelled weed. The defendant says no he didn't. Who's more believable? The cop with the nose or the person accused of multiple felonies?If cops need an assist, they can always call in another witness that can't be cross-examined: a drug dog. The dog "alerted" -- something that means a breed domesticated to please did nothing more than please its handlers. Courts will, again, often grant deference to "testimony" that can't be challenged.The drug warriors of the USA are always in search of the next useful fiction -- something that can be written down on reports, delivered in statements in the press, but never objectively examined by a court of law. That new fiction involves the latest public enemy number one: fentanyl.What cops can't understand is immediately converted into a threat. Brushing aside medical and scientific expertise, cops are now claiming simply breathing the same air as fentanyl is the equivalent of a death sentence -- especially for cops serving bog standard drug warrants. Suddenly, sweeping a house during warrant service is a potential death sentence for officers, no matter how much they've outmanned and outgunned the opposition.The irrational fear of a drug that drug warriors apparently don't understand has resulted in all sorts of amazing claims by officers:
Every year, police officers claim to have suffered near-fatal overdoses after accidentally touching fentanyl, a synthetic opioid more powerful than morphine or heroin.“Deputy Nearly Dies of Fentanyl Overdose,” read a headline from the Sacramento Bee this summer. “Officer Exposed to Fentanyl & Transported to Local Hospital,” stated a press release from the Santa Rosa Police Department in 2020. “Police Officer Overdoses After Brushing Fentanyl Powder Off His Uniform,” read the headline on a CNN story from 2017.But there’s something off about this seeming epidemic of accidental overdoses: It is virtually impossible to overdose simply by touching or getting too close to fentanyl. Doctors and toxicologists warn that the hype around this perceived threat is harming overdose victims, taxpayers, and first responders.
If you ask cops, the mere existence of fentanyl is threatening cops' lives. If you ask medical professionals, cops are overstating the threat posed by the drug.
Accidental overdose by skin exposure “is chemically and physically implausible,” said Dr. Ryan Marino, a medical toxicologist and addiction medicine specialist who serves as an assistant professor at Case Western Reserve University School of Medicine.Dr. Andrew Stolbach, an emergency physician and medical toxicologist at Johns Hopkins Hospital, said, “It's not possible to overdose on fentanyl by touching it. If it was absorbed well through the skin, people wouldn’t inject it and snort it in order to get high.”
Given this disconnect between cops' claims and medical professionals' assertions, the only logical conclusion would be for cop shops to tell their drug warriors to stop being so melodramatic. Instead, cops are ignoring the science and allowing their imaginations to act as the basis for serious criminal charges. Welcome to post-sci fi America, where cops are able to secure felony charges based solely on their inability to understand drug interactions.
Despite this, people who use the drug are facing serious legal repercussions — such as charges of assault or endangerment of officers — for supposedly causing these impossible overdoses.“People should not be in jail for imaginary crimes,” [Dr. Ryan] Marino said.
Look, I don't have a problem with cops accessing their drug warring spank banks. My complaint is that their mastubatorial fantasies can take real years off real people's lives. And they're able to do this because, for the most part, the most powerful parts of our government are unwilling to challenge cops and their narratives. Instead, courts and lawmakers cut cops all sorts of slack under the assumption that cops should be given every opportunity to be wrong.The man in the anecdote quoted above was sentenced to 6.5 years in jail -- a charge predicated on nothing more than an officer's statements that he didn't feel quite right after irresponsibly handling evidence.This delusion infects every level of law enforcement, from the local cops who overreacted to a successful drug bust in Bickel's case to DEA agents who think nothing of throwing US citizens under the criminal justice wheel just because its agents aren't willing to read or comprehend information about drugs and drug interactions.The good news is the mass hysteria encouraged by all levels of law enforcement reached its nadir when the San Diego Police Department released body cam footage it obviously hoped would show the public how dangerous exposure to fentanyl can be. This backfired spectacularly, exposing the San Diego PD and its PR wing as a bunch of Streisands in search of clicks -- an effort immediately undermined by hundreds of medical experts.
Over 400 physicians, nurses, and public health researchers signed a letter demanding retractions from the major outlets that credulously repeated the department’s claim. They highlighted the 2017 findings of a joint American College of Medical Toxicology and American Academy of Clinical Toxicology task force, which found that “incidental dermal absorption is very unlikely to cause opioid toxicity,” and “toxicity cannot occur from simply being in proximity to the drug.”
Who knows what really happened to this officer who claimed to be severely damaged by momentary exposure to an illicit substance? One unavoidable assumption is that years of claiming fentanyl can kill or maim on contact resulted in this officer reacting poorly to a stimulus he had been told repeatedly was instantly deadly. What was caught on camera was likely more panic attack (prompted by unscientific police training) than reaction to the substance cops had yet to determine was actual fentanyl. Dramatic as fuck, but so are any number of actors who have been provided with instructions on motivation during certain scenes. (As well as official deference when accused of domestic violence, but I digress…)Cops are flopping. We're paying the salaries of a bunch of badged-up Bill Laimbeers who use their imagination and playacting to turn their carelessness at crime scenes into felony assault charges. We've posted nothing but losses since the inception of the Drug War. Nearly 50 years down the road, cops are expecting us to credit them with trash time scoring just because they can pretend to collapse when faced with actual work. LOL. Fuck them and the piss poor imagination they rode in on.
The unexpected rebranding of Facebook's holding company as "Meta" has prompted a good deal of head scratching. Was it because Mark Zuckerberg is now a true believer in the metaverse religion, as the rather cringe-worthy video released at the time of the name change is meant to suggest? Was it perhaps an attempt to change the conversation in the wake of the damning testimony and leaks of Frances Haugen? Or maybe it was just a desperate bid to find a way of attracting younger users now that Facebook is increasingly an old person's social network, as the New York Times pointed out recently:
The truth is that Facebook's thirst for young users is less about dominating a new market and more about staving off irrelevance. Facebook use among teenagers in the United States has been declining for years, and is expected to plummet even further soon -- internal researchers predicted that daily use would decline 45 percent by 2023. The researchers also revealed that Instagram, whose growth offset declining interest in Facebook's core app for years, is losing market share to faster-growing rivals like TikTok, and younger users aren't posting as much content as they used to.
Whatever the reason, there is no doubting the seriousness of Facebook's corporate swerve to virtual reality (VR). The company has said that it is spending at least $10 billion on its new VR division this year, and that it will create 10,000 new jobs at Facebook across the EU to "help build the metaverse". The new strategy may not be in doubt, but one thing is: how will Meta make money in this brave, new virtual world?At the heart of Facebook's current business model and profitability are two things: surveillance and advertising. Everything that a Facebook user does on the site -- and on thousands of other major sites around the Internet -- is tracked and analyzed in the minutest detail. The personal profile that results is then sold online -- algorithmically, in real-time -- to the highest bidder, who buys the opportunity to display online advertising targeted at the person in question, as they visit a Web site.At the moment, the surveillance takes the form of recording which pages people visit on which sites, and where they click. It's not hard to extrapolate that to a virtual world, where Facebook/Meta records everything a user looks at, talks to, touches or interacts with in any way. In addition to using eye gaze direction and pupil activity monitored within the virtual reality headsets to gauge user interest, there may be other biometric inputs -- things like heartbeat, blood pressure and skin conductivity. In-world advertising is also easy to visualize. These could be in the form of virtual ad hoardings in the metaverse, or the more subtle use of product placement.None of these are particularly novel suggestions -- they've been around for years. But it is fascinating to see precisely these ideas mentioned in a Financial Times article (paywall alert) looking at "dozens of patents recently granted to Facebook's parent company". Among the patents reviewed by the FT there are several that concern mapping users and their movements onto avatars in the metaverse as realistically as possible:
There is a "wearable magnetic sensor system" to be placed around a torso for "body pose tracking". The patent includes sketches of a user wearing the device but appearing in virtual reality as a soldier complete with a sword and armour.Another patent proposes an "avatar personalisation engine" that can create three dimensional avatars based on a user's photos, using tools including a so-called skin replicator.
To do that requires even closer surveillance of what users do, both online and offline, which potentially allows even more information to be sold to advertisers:
One patent explores how to present users with personalised advertising in augmented reality, based on age, gender, interest and "how the users interact with a social media platform", including their likes and comments.Another seeks to allow third parties to "sponsor the appearance of an object" in a virtual store that mirrors the layout of a retail store, through a bidding process similar to the company's existing advertising auction process.
As the FT notes, these kind of approaches would allow Meta to offer an immersive virtual world that is even more personalized than the existing Web-based system.It's important to note that these are just patents. Nowadays, companies apply for as many of them as they can, just in case. Most are never used. But the similarity between today's Facebook and the one that the approaches detailed in the patents might produce is striking, as is the absence of anything truly radical or innovative. And that could be a problem for Meta. If young people aren't interested in what today's Web-based Facebook has to offer, are they really going to want to spend time as an avatar moving through the same thing gussied up into a virtual world?Follow me @glynmoody on Twitter, Diaspora, or Mastodon.
As you've probably seen, for the last couple of weeks we've been running our Techdirt Greenhouse series of posts looking back on the fight against SOPA from those who were there at the time, including one this morning from from Rep. Zoe Lofgren, who was a key player in Congress stopping SOPA. Tomorrow at 1pm PT / 4pm ET, we'll be having Rep. Lofgren join us for a "fireside chat" looking back at what happened with SOPA a decade ago, but more importantly looking at what's happening today with internet regulations and where things are likely to go. If you want to attend live, please register to sign up. Like many of our recent events, we're using the Remo platform, which has the feeling of an actual in-person event, even while it's virtual. You'll be able to talk to other people at your "table" as well as move around to other tables to talk to other attendees as well. During the talk with Lofgren, you'll be able to submit your own questions as well. So please join us tomorrow...
We're excited today to announce that we've received a grant from Grant for the Web to create a content series on Techdirt exploring the history (and future?) of web monetization, entitled "Correcting Error 402." We'll get more into this once the series launches, but lots of people are aware of the HTTP 404 Not Found error code -- and some people are at least vaguely aware of 403 Forbidden. What most people probably don't know about is the Error Code 402: Payment Required. It's been in the HTTP spec going back decades, with "This code is reserved for future use." But no one's ever actually done anything with it.And, arguably, the lack of standardization there has created some ancillary issues -- including a few giant, dominant payment processor companies, high transaction fees, as well as the current (and more recent) mad dash scramble to fill the gap by trying to build a zillion different kinds of cryptocurrencies, most of which are fluff and nonsense, but without actually understanding what makes the most sense for an open internet.Grant for the Web is a project of the Interledger Foundation. Interledger is an attempt to create an open protocol, web monetization standard for handling internet payments and monetization. We've talked a little about all this in the past, when we started experimenting with Coil (a provider of tools to help enable web monetization), and on the podcast we did with Coil founder and Interledger co-creator Stefan Thomas.But we wanted to dig deeper into the questions of what the web might look like if monetization was built on an open standard as part of the web, and that's what this content series will entail. Expect the series to startup in about a month, and to explore the history, present, and future of monetization. And, just to answer a few questions you might have: this series is not going to be about cryptocurrency (though it may get mentioned in passing), because that's not central to the questions here, and it's also not going to be just about Interledger/Coil's vision of the future. It's designed to be a deeper exploration of the question of monetization online and how it should work.
And here we go again. When Microsoft acquired Zenimax/Bethesda last year, the first question that leapt to most people's minds was whether or not Microsoft would wall off long-running franchises from Bethesda with exclusivity to Xbox and/or PC platforms. Those looking for answers were surely initially confused by conflicting statements from both sides of the deal, which was then "clarified" later by Microsoft execs saying that titles would be "first/better on Microsoft platforms" but not exclusive. That was then clarified further by Microsoft's actual actions, which was to announce that the next Elder Scrolls game would indeed be a PC/Xbox exclusive.Well, as we were just discussing, Microsoft is finalizing its biggest ever acquisition into the game publishing market with a purchase of Activision Blizzard and King Digital Entertainment, and all the same questions immediately leapt to everyone's mind. And, because past is prologue, the players in this deal and those impacted by it are churning out vague, unclear statements on what this means for exclusivity for franchises from those studios.We'll start with what Sony said in comments to The Wall Street journal.
“We expect that Microsoft will abide by contractual agreements and continue to ensure Activision games are multiplatform,” a Sony spokesman told The Wall Street Journal today. Read one way, it seems like confirmation that the owner of PlayStation thinks nothing will change. Read another, it means that existing Activision games will remain multiplatform, but doesn’t provide any clarity on what might happen to future projects that haven’t even been announced yet.
Indeed. And, frankly, Sony can expect anything it likes, but Microsoft probably didn't spend $69 billion on these studios without its own plans in place. Whether that includes exclusivity... who knows? But the company has its plans and Sony's expectations probably don't factor into them all that much.Then came the public comments by Xbox's Phil Spencer. Spencer was one of the Microsoft folks commenting publicly about the Zenimax acquisition, vaguely saying that Microsoft could recoup its $7.5 billion investment even by excluding non-Microsoft platforms from future games, but that, hey, maybe it wouldn't go that route. Here he is commenting on his talks with Sony.
Had good calls this week with leaders at Sony. I confirmed our intent to honor all existing agreements upon acquisition of Activision Blizzard and our desire to keep Call of Duty on PlayStation. Sony is an important part of our industry, and we value our relationship.— Phil Spencer (@XboxP3) January 20, 2022
Now the Twitter reaction to that was all sunshine and rainbows as everyone took it to mean there would be no exclusivity deals for CoD games. But go read that tweet again, because that isn't what it says at all. There are a million ways to read that tweet, including: we'll honor existing agreements for existing games by keeping them on PlayStation. Read that way, the tweet says virtually nothing about new or upcoming games. Nor anything about other Activision or Blizzard franchises. Also, there are a bunch of non-committal words sprinkled in there. Intent? I intended on losing weight after the new year. I very much did not. See how that works?It's all very unclear, which is annoying. Microsoft knows what it wants to do and the fact that they aren't making definitive statements tells you this is probably going to follow the Bethesda track. Not everything will be exclusive, but some franchises certainly will.
According to Bloomberg’s report, “Microsoft plans to keep making some of Activision’s games for PlayStation consoles but will also keep some content exclusive to Xbox.” That could mean that Call of Duty, consistently the best-selling game every year, will remain multiplatform. Or it could mean that nearly every new Activision Blizzard game except for its free-to-play battle royale, Warzone, won’t be coming to PS5.
While industry consolidation doesn't always have to be a bad thing, this is and always has been the major concern in the gaming industry. When the makers of the platform also make the games you play on them, you're at the mercy of corporate interests as to whether you'll have access to them or not.And whatever you think of any of this, that simply isn't how you continue to grow an exploding industry.
It's been obvious for a while that the future of internet television is starting to look increasingly like traditional cable. Initially, the streaming sector was all about innovation, choice, and lower costs to drive subscriber interest. But as the market has matured and become dominated by bigger players, some familiar patterns have emerged, including giant companies trying to lock down as much content as possible in exclusives, and a steady parade of price hikes that slowly, surely, start to erode the value proposition.Last week Netflix announced that the company would be imposing yet another price hike. Here in the U.S., the company's 720p "basic" tier is increasing $1 to $10 per month, its 1080p "standard" tier is increasing $1.50 to $15.50 per month, and its 4K "premium" will see a $2 increase to $20 per month. Similar hikes are also on their way to Canadian subscribers. In a statement, Netflix justified the hikes using familiar rhetoric about "improving the customer experience":
"We understand people have more entertainment choices than ever, and we're committed to delivering an even better experience for our members," the statement said. "We're updating our prices so that we can continue to offer a wide variety of quality entertainment options. As always, we offer a range of plans so members can pick a price that works for their budget."
Granted every time the company imposes a rate hike, folks act as if the world is falling. Back when the company bungled its "Qwikster" DVD unit spin off and imposed price hikes there were no shortage of critics insisting the company was doomed. But for now, consumers continue to find the value proposition streaming offers to be worthwhile, especially in comparison to the still high prices of traditional cable TV options. Streaming still generally sees the kind of customer satisfaction ratings traditional cable companies can only dream of.But the price hikes that have hit streaming TV services (especially live streaming services) haven't been without repercussion. Not only did more customers cut the traditional TV cord last year, streaming TV services saw a significant reduction in growth. Netflix itself saw a significant drop in subscriber growth across 2021 and a loss in total subscribers in the U.S. and Canada, in no small part due to a 2020 price hike.With the pricing for live streaming TV services like YouTube TV increasingly looking more and more like traditional cable, and the hunt to lock down exclusives driving increased confusion among consumers trying to find their favorite content, there continues to be a real risk the entire sector simply forgets to learn anything from the plight of traditional TV. As in, keep pushing price hikes for the same or an eroded value proposition, and you can expect a lot of potential subscribers to move to alternatives... whether that's over the air broadcasts using an antenna, or TikTok.
You will recall that we had several posts covering when Microsoft acquired Zenimax Media for $7 billion, as well as some of the potential fallout from that acquisition. Much of the focus was on what the purchase of Zenimax and its child studios, such as Bethesda, would mean for long-running game franchises from those studios going exclusive to PC and/or Xbox. Microsoft made a bunch of vague, lightly-conflicting statements on the topic before ripping the bandaid off by making the next Elder Scrolls game an Xbox/PC exclusive.Most folks in the gaming community are either agnostic about exclusives, or decidedly hate them. There are very few cheerleaders for exclusives in other words, which is why most news about larger publishers acquiring small or mid-sized publishers is greeted with very narrow eyes.That being said, there are acquisitions, and then there are acquisitions.
You might have heard the news: Microsoft has announced plans to acquire gaming behemoth Activision Blizzard King (ABK) and its subsidiary development studios. The deal is valued at $68.7 billion—or roughly 17 acquisitions of the Star Wars franchise—and that kind of money isn't spent without an expectation of major moves (and revenue) going forward.
From there, the ArsTechnica post digs into some predictions as to what those moves will be: more games going into Xbox's Game Pass, more mobile games spun out through the King studio, and, of course, the potential for franchises like World of Warcraft going exclusive. A good portion of the reaction to this deal being announced is focused on what titles will go exclusive.But this deal is much, much bigger than that. It is the largest acquisition in the gaming space by Microsoft and the read on it in the financial space is that this is the real start to a much larger trend of consolidation in the industry.
“It’s going to start a major ripple effect in terms of consolidation for other videogame publishers,” said Wedbush Securities analyst Dan Ives.Microsoft’s purchase of Activision will accelerate more deals in the industry, analysts said, as big tech companies seek to broaden their consumer offerings by acquiring game publishers and developers that attracted players during the pandemic. Microsoft’s purchase of Activision, which owns the Call of Duty, World of Warcraft and Candy Crush franchises, would also help the company edge into the streaming and metaverse spaces, they added.
Notably, once news of this deal broke, stocks for publishers like EA, Ubisoft, and Nintendo all rose significantly. That's the market buying this as a trend and trying to get out ahead of the eventual stock climb when future deals are announced.So, what does this mean for the industry? It doesn't have to be bad, so long as these large acquisitions are backfilled by new entrants from smaller players. But there are a lot of ways for this consolidation to go wrong. Kotaku's writeup is a bit over the top for my taste, but there are some valid points to consider in there.
This is the future. There is zero chance that boardrooms everywhere from EA to Ubisoft to Sony aren’t going to be full this week with panicked executives talking about their options for something similar, because their only instinct will be to match this. To keep up, keep those share prices growing, until there are only 2-3 companies left at the top of the food chain, and things are just a little worse still for the rest of us. Because they know nothing else.
We're unlikely to reach a reality in which there are 3 parent gaming companies out there. If we did, yeah, that would be bad. Instead, I think the real danger in all of this could be the coordinated fragmentation of the gaming industry along platform lines. If the same companies that make the platforms (PCs, Playstations, Xboxs, etc) also makes some sizable plurality or majority of the games, that absolutely will lead to more exclusivity, more walled gardens, more hoarding of the culture that is games.And that would ultimately be bad for the industry, no matter how many billions of dollars are exchanged in these acquisitions.
When we've talked about any plans to put in online DRM pings when it comes to console gaming, we've typically centered that discussion around the console makers themselves. For older Xbox consoles and, well, all things Nintendo, this has been a particularly annoying problem. Nintendo wanting online checks is just so on brand so as to be only mildly annoying. If you buy Nintendo, you know what you're getting. Microsoft's plan to have online checks for the Xbox made less sense. Piracy of console games isn't nonexistent, but it isn't exactly a massively huge problem given the technical know-how needed in order to use pirated games on modern consoles. Even for game publishers like Activision Blizzard, which has found itself in the headlines for entirely more significant reasons as of late, DRM was typically only included on PC ports of games, not on the console versions themselves.Until now, it seems. Owners of Diablo 2 Resurrected have discovered that it has an online check that makes the game unplayable if the game hasn't checked in within 30 days, even on consoles.
Here’s an interesting turn of events: it seems that those who own Diablo 2 Resurrected, if you don’t log in (online) at least once in 30 days, you cannot play it offline regardless of platform. This was brought to our attention by Twitter user DoesItPlay1, who tweeted that this can be removed with hacks, and servers no real purpose.
You cannot play Diablo 2 resurrected after 30 days of being offline, one of the first console games to feature check in drm.It serves no real purpose and can be removed with hacks.Dark times pic.twitter.com/EVnPVhXisD— Does it play? (@DoesItPlay1) January 17, 2022
This was later confirmed independently. As the post notes, there doesn't seem to be any real purpose to this. Again, console piracy is not to be equated with PC gaming piracy. Putting this check in place for thousands of legit customers to stave off whatever level of console piracy there is for this Diablo title is essentially solving the math problem wrong. On top of that, for those motivated enough, this online check is easily patched out of the game.So, annoying paying customers to combat a problem that really isn't that big a problem via a method that is wildly ineffective. Yup, sounds like DRM to me! As the post notes, this is both an annoyance and a poorly timed one.
Given how much bad publicity Activision and Blizzard Entertainment has been in the past few months, this is probably the last thing gamers want to see from the developers. While I understand that this is a way to combat piracy, why is it activated on consoles too? Or better yet, wasn’t there a better way of implementing it without restricting players who bought it legitimately?
With DRM? Nah, dawg. The only real solution here would be for Activision Blizzard to be more forward-thinking and realizing this online check DRM was fit only for the dumpster to begin with.
It's no secret the Chinese government wants to control its population through pervasive surveillance. It's also no secret the government wants very badly to eliminate a certain sector of its population with (in every sense of the words) extreme prejudice.China's minority Uighur Muslim population presents an existential threat to a government that is tasked with controlling the hearts and minds of billions of residents. The Uighurs don't buy into the government narrative or whatever passes for a national religion in a country where almost every religious expression has been suppressed.The Chinese government claims to have no national religion. This may be true. But it will only tolerate so many, and Islam isn't one of them. The government has engaged in the mass disappearance of this minority. And it has done so with an alarming amount of assistance from non-Chinese entities, ranging from American tech companies to foreign government officials.It's not like anyone's having trouble divining the Chinese government's intent when it comes to its Uighur population. But even multinational entities charged with keeping the (worldwide) peace and preventing large-scale human rights abuses are giving China what it wants.Enter the United Nations, which has apparently become Nations United Against Uighurs, according to this report for Newsweek by Josh Feldman:
The United Nations, the very institution created to "reaffirm faith in fundamental human rights," is assisting China in its violent efforts to wipe out the Uyghurs by helping the CCP cover its tracks. These were the findings of a recent report in Le Monde about the efforts of UN human rights officer-turned whistleblower Emma Reilly. Reilly claims that prior to every UN Human Rights Council (UNHRC) session in recent years, China has requested the names of Uyghur and other Chinese dissidents who were scheduled to speak. And despite this being explicitly forbidden by the UN's own rules, the UN, according to Reilly, has made it a practice to share this information with Chinese authorities, who use it to harass the dissidents' families who are still based in China.
True? False? Unconfirmed? Gentlepersons, place your bets. But me personally? I'm siding with confirmed. These complaints about the UN's willingness to aid and abet at least indirect harassment of Uighur residents seem to have a pretty solid basis. This isn't a recent development. The Chinese government has wanted Uighurs regulated to the background of their own genocide for years.
Reilly says she first discovered the practice in 2013, when China's Geneva delegation requested confirmation that certain "anti-government Chinese separatists" were set to speak at the Human Rights Council. Listed individuals included, among others, Dolkun Isa, current president of the World Uyghur Congress.
Emma Reilly, of course, is now faring worse than either the UN or the Chinese government atrocities the UN is helping enable. Despite official confirmation of her allegations by the Office of the High Commissioner for Human Rights (OHCHR), she was fired from her position the day after French newspaper Le Monde reported on her accusations.Meanwhile, the UN tries to have it both ways.
The UN in fact confirmed Reilly's allegations in 2017, when the OHCHR acknowledged that it confirms attendees' names with Chinese authorities who "regularly ask the UN Human Rights Office... whether particular NGO delegates are attending the forthcoming session." So too, did a 2019 UN tribunal confirm "the practice of providing names of human rights defenders to the Chinese delegation."
Despite confirming the Chinese government's abuse of UN processes, the UN Secretary-General claimed it blew the Chinese government off when it determined it had no basis to request these names. This assertion was rejected by a UN judge, who said the OHCHR had lied about its actual responses to the Chinese government's demands for names of speakers it wished to silence.But this declaration hasn't changed the math much for the censorial and violent Chinese government. It still gets to participate in worldwide discussions about governance and demand information on UN speakers it doesn't agree with for the apparent purpose of engaging in witness intimidation. It's not that no one can see what's going on in China. It's that, for the most part, those with the power to attempt to force positive change have decided they're outmatched and outgunned by a government whose bark has proven so efficient it never needs to bite. Someone needs to call China's bluff. But those who can not only refuse to challenge the international bully, but actively participate in actions that consolidate its power.
It's funny sometimes how quickly a company can go from being known for making a great product to being known for being a litigious intellectual property bully. And if that doesn't accurately describe the heel-turn pulled off by the folks behind PlayerUnknown's Battlegrounds, then I don't know what does. To be clear, PUBG, as it's lovingly referred to, was a groundbreaking video game. While the game didn't invent the battle royale concept, it certainly ushered that genre into an era. And just like any breakthrough genres suddenly having success, that means others are going to start trying their own hands at the genre. While plenty of other entrants have gotten into the battle royale game, PUBG has fought battles with several of them, most notably Epic's Fortnite title.Now, while PUBG has managed to get some settlements out of other legal action against battle royale game developers, it's worth noting that it ended up dropping its suit against Epic. Why? Well, because unlike some of its other targets, Epic has a huge legal war chest of its own to fight back. And, as tends to be the case with PUBG's suits, all of its complaints were over non-protectable elements of those games. Much of what is in these suits that PUBG files are for supposed copyright infringement of what ends up being ideas, rather than specific expression. The battle royale concept, for instance, or the manner in which some of the gameplay is conducted, are not protectable expression, but mere ideas for a genre of games.Well, the PUBG folks are at it again, with publisher Krafton suing Garena over its Free Fire mobile game. Apple and Google are also named in the suit, both of them for putting Free Fire on their app stores, and Google additionally for hosting some videos of the game's gameplay and other footage.
In the complaint, Krafton has alleged that multiple features of Free Fire and the more recent Free Fire Max infringe on copyrighted aspects of PUBG, including in-game items, weapons, and its map.One claim in the lawsuit which addresses the "substantially similar" in-game maps alleges that Free Fire has attempted to mimic PUBG, such as the addition of a river flowing from through the map and the similarities between a coastal village in both games.
From the second paragraph in that quote, you can already see where we're going with this. I've reviewed and embedded the entire complaint so that you can go see for yourself, but many, if not all, of the examples of infringement contained in it are for ideas, not expression. There is no accusation of copying actual game assets. Instead, you get things like Free Fire changing its map to include a river or village. Or the manner in which health is increased in a delayed fashion when applying a bandage. Or the fact that both games have a player lobby before the match starts.Hell, some of the screenshots comparing the two titles you will see almost feel like Krafton telling on itself that this isn't actual copying, but the reuse of an idea. For instance, in the complaint Krafton argues that both games use leveled body armor, that the body armor is visually similar, and that its gameplay effects are similar. Then the filing has these examples to show all of that, except they don't show that at all.
If those look similar to you, you need to get your eyes checked. And the gameplay effects are in fact different. Those effects are similar, sure, but how could they not be? Body armor is going to reduce damage. That's how video game body armor works. These just aren't the same.As another example, the complaint says that the app is infringing on PUBG because both games include certain building types or structures. For example, both games, and I'm not making this up, include gas storage tanks.
Again, this is Krafton telling on itself. Having gas storage tanks in a game is an idea. How you depict those structures is the expression and these screenshots most certainly do not show any copying of that specific expression.Honestly, there are too many examples given to dissect in one post. What you will see if you dive in is that, rather than specific examples of explicit copying, the examples are all somewhere between non-infringing and maybe-kinda-borderline similar, such that the document throws everything at the wall in the hopes that either something sticks or the sheer volume of examples fools someone into thinking that this is copyright infringement.The accusations against Apple and Google are equally silly. Essentially, PUBG is accusing those companies of copyright infringement because both claim to review games before publishing them in their stores, both make money off of app sales in those stores, and both didn't agree to take the app down when PUBG complained and filed DMCA notices. That is, as the filing notes, because neither Apple nor Google agreed that the accusation of copyright infringement was valid.PUBG also accuses Google of copyright infringement for hosting several YouTube videos that either show gameplay from Free Fire or fan-videos of live-action recreations of PUBG gameplay.
Furthermore, Krafton has named YouTube as an additional defendant due to the hosting of Free Fire gameplay on its platform, as well as a Chinese film that is "nothing more than a blatantly infringing live-action dramatization of Battlegrounds".
Not only are these videos almost certainly non-infringing as fair use, it's also worth remembering that this is user-generated content uploaded to the platform, rather than YouTube making these videos themselves. While it's true that, in rejecting the DMCA takedown notice, Google has given up its DMCA safe harbor for those videos, that doesn't make the company automatically liable. Google would still have a very strong defense that the works are not infringing.And so it goes. A once vaunted company that produced a popular and great game is now continuing to go copyright infringement hunting against the competition, largely, if not entirely, over non-protectable elements. It would probably be best for all involved if Krafton got back to the game-making business and stopped with this nonsense.
Gaming Like It's 1926: The Public Domain Game JamRandy Lubin is a game designer who partners with Techdirt and The Copia Institute on many of our game-related projects, including our public domain game jam. He's also the developer of Story Synth, a free and easy to use platform for building narrative games. Story Synth makes it easy for even inexperienced designers to quickly build a game, so it's a perfect way to get involved in the jam. We invited Randy to share some details on how the platform works and what you can do with it.We're in the middle of our fourth annual public domain game jam: Gaming Like It's 1926. If you're thinking about designing a game, Story Synth is a free platform on which you can design a browser based game in under an hour, with no technical skill or prior experience needed. In this post, I'll give a quick overview of what Story Synth is and how to design a game with it.
With Story Synth, you can design prompt-driven storytelling games by authoring the content in a Google Sheet and then uploading the sheet at storysynth.org. The platform then automatically builds your game, complete with a homepage for your game that you can share online. The platform has live multiplayer: players in the same session will see the same prompts at the same time.Story Synth supports a wide variety of formats inspired by tabletop RPGs such as The Quiet Year and For the Queen. Other formats enable players to generate collections of random prompts and to explore a map of hexagons. You also have plenty of options to customize your game, from tweaking the visual appearance to adding on extensions such as dice rollers, editable lists, shared journals, and more. You can learn more about all of this in the Story Synth guide, or the video tour.
You can get started with your design by copying a template Google Sheet. You can grab a link for the format you want at the Story Synth Formats page. Once you make a copy, start editing and adding prompts in the numbered rows. When you're ready to upload your game, set the Sheet to publicly viewable and then paste the sheet URL in the Story Synth homepage and the site will build your game. Once your game is built, you can launch a new session and test it out; when you refresh the page, Story Synth reloads the content from your Google Sheet; that means that you can keep editing your sheet and immediately testing the changes.If you're making a game for the Gaming Like It's 1926 jam, then you can create an Itch.io page that links to your game on Story Synth and then submit it to the jam. Here are more detailed instructions for publishing Story Synth games on Itch.For inspiration on works entering the public domain, check out Duke University's overview. To get a sense of what Story Synth games are like, try playing fantasy travel game Around the Realm and Seven Samurai inspired Clash at Ikara, or browse the gallery for more options.
A few months back, we wrote about Southwest Airlines' ridiculously antagonistic legal strategy against aggregators that would scrape information on flights and prices from Southwest.com and help people find flights and prices. The case we covered was the one against Skiplagged, but it was related to a separate case against Kiwi.com. Skiplagged had argued that it didn't violate Southwest's terms of service since it wasn't scraping info from Southwest... but rather had scraped it from a different site, Kiwi.com, which in turn had scraped it from Southwest.com.Just the fact that we're arguing over whether or not it's legal to scrape data from publicly available websites should alert you to the fact that these lawsuits are nonsense. Factual data -- such as flight routes and prices -- are not protected by any intellectual property and if you put them out there, people can (and should!) copy them and spread them elsewhere. But, unfortunately, the court ruled against Kiwi.com last fall, granting Southwest an injunction saying that Kiwi can't scrape its site for data any more. Realizing it was in trouble, it appears that Kiwi caved in and settled the lawsuit agreeing to no longer collect data on Southwest flights.Given that, the court has now made the preliminary injunction a permanent injunction barring Kiwi and any of its employees from ever scraping data off of Southwest's site. The court takes for granted that Southwest can just say in their terms of service that you can't copy data from their website and that's a valid contract. That seems dangerously empowering for terms of service. Can I add to Techdirt's terms of service that by reading this site you agree to place any copyright-covered works you create into the public domain?
Southwest's Terms & Conditions are a valid and enforceable contract, and Kiwi.comaccepted those Terms & Conditions when it used the Southwest Website with knowledge of theTerms & Conditions;Kiwi.com breached the Terms & Conditions when it, among other things, harvestedand scraped data from the Southwest Website, published Southwest's flight and fare schedules onKiwi.com, used the Southwest Website for Kiwi.com's own commercial purposes, and brokeredand sold Southwest flights without permission;Kiwi.com's violations of the Terms & Conditions have caused Southwest to sufferirreparable harm, including lost traffic on its website, customer service burdens, operationaldisruptions, and reputational damage; andAfter considering the balance of harms, the threatened injury to Southwest if theinjunction was denied outweighed the harm to Kiwi.com because, among other things, Kiwi.com'sunauthorized sales of Southwest flights poses a significant disruption to its customer operations,and the public interest would be served if an injunction is granted because there is an expectationthat parties to contracts will honor their contractual obligations.
Those last two paragraphs also seem like complete nonsense. If people find it easier to use a third party service than your own site, well, then that should mean you should work to improve your own site, not get to sue them in court. Lots of things lead to "lost traffic" on a website, including better service from a competitor. But we don't say that violates the law.Anyway, because of this no one associated with Kiwi.com can ever "extract" any information from Southwest's website or even post data about Southwest flights on its website and I honestly don't see how that's possibly legal. Data is data. You shouldn't be able to bar a company from posting data.
IT IS HEREBY ORDERED that Kiwi.com, Inc. and Kiwi.com s.r.o., as well as theirofficers, agents, servants, employees, and attorneys and all other persons acting who are in activeconcert or participation with them, are permanently prohibited, restrained, and enjoinedpermanently from: (1) harvesting, extracting, or scraping information from the Southwest website,www.southwest.com, or its proprietary servers, including Southwest's flight and fare information;(2) publishing Southwest flight or fare information on the kiwi.com website, through its mobileapplications or elsewhere; (3) otherwise accessing and using Southwest's website and data for anycommercial purpose; (4) selling Southwest flights; and (5) committing any other acts in violationof Southwest's Terms & Conditions
What an unfortunate state of an events -- but also a very clear reminder that Southwest is anti-consumer in its practices.
Sometimes you can't always get what you want. In this case -- argued in front of a California court -- you can't even get what you need.Ex-officers Louis Lozano and Eric Mitchell wanted their jobs back. They used to be cops working for the Los Angeles Police Department. On the way to a call about a robbery in progress, the officers -- ostensibly "running towards the sound of gunfire" -- found something far more compelling than the job they were hired to do.The opinion [PDF] -- highlighted by Jake White on Twitter to the amusement of thousands -- is a blast to read. The headline and the opening hijacking of the Rolling Stones makes it clear where this is headed. But even if the destination is clear, you'll still enjoy the ride.Here's what the cops should have been doing, as recounted by the court:
It was a “busy” Saturday in the Southwest Division— there were more calls than police cars available to respond and there had been a homicide earlier in the day. While en route to the homicide scene, Captain Davenport heard a radio call for “a 211 [robbery] in progress” with multiple suspects at the Macy’s in the Crenshaw Mall. When the call came in, the Captain could see the Macy’s from where he was stopped, and to his right he noticed a police car tucked back in an alley just feet away. He was not able to identify the unit, and when the unit did not respond to the radio call, the Captain assumed it might be a traffic unit or a unit from a different division using a different radio frequency. Consequently, Captain Davenport decided he would respond to the call and notified communications he was going “Code 6 on the call”—i.e., responding to the location of the robbery. At around the same time, the Captain saw the police car start to back up down the alley, then negotiate a left-hand turn to leave the area.
The two officers trying to recover their jobs also claimed to be going "Code 6" on the same call. This seemed peculiar to Sergeant Gomez, who asked the officers if they were headed to assist Captain Davenport. He received only a cryptic "no" in response to his question. He tried to follow up on the officers' failure to follow up on this robbery call, asking to meet them at a nearby 7-11 store where the officers were (and now we'll use the word "allegedly") engaged in an illegal merchandise investigation.At that point, the officers claimed it was hectic and noisy and that they had heard no call for backup. They said "it was really loud in the park, especially on a Saturday." Sgt. Gomez reminded them radio calls could be the difference between life and death. The officers agreed and said they'd try not to hang out in noisy areas in the future if possible.Unfortunately for the lying officers, their actions had been captured by their dash-cam. The DICVS (digital in-car video system) showed the officers were otherwise occupied during the time their presence was needed at the Crenshaw Mall.First, they blew off being part of the thin blue line:
The DICVS recording disclosed that, immediately after Captain Davenport’s Code 6 broadcast, Officer Lozano asked Officer Mitchell if they were Code 6 on the Crenshaw Corridor or on the corner near the mall where they were parked. Mitchell responded they were “[a]t the corner” and noted the broadcast radio call was “Davenport.” Lozano then instructed Mitchell to put them Code 6 “at the corridor,” adding (after some laughter) regarding Captain Davenport, “I don’t want to be his help.” Petitioners’ unit then moved backwards through the alley and turned away from the mall, as Captain Davenport had observed.For the next several minutes the DICVS captured continued radio traffic regarding the robbery and pursuit of multiple suspects. After communications made a second attempt to contact petitioners, Officer Lozano asked if they should “ask [communications] if there’s a message.” Officer Mitchell replied, “It’s up to you. Whatever you think. I don’t want them to think we’re not paying attention to the radio.” Lozano responded, “Aw, screw it.” Petitioners made no attempt to respond over the radio when their unit was called.
Then they went hunting for something apparently far more worthy of their time, attention, and tax dollars than the reported robbery.
After carefully listening to the DICVS recording a number of times, Detective McClanahan also became concerned that petitioners were playing “the Pokémon Go video game” while on duty the day of the robbery. The recording showed that, at approximately 6:09 p.m. (just five minutes after Officer Lozano said “screw it” to checking in with communications about the robbery call), Officer Mitchell alerted Lozano that “Snorlax” “just popped up” at “46th and Leimert.” After noting that “Leimert doesn’t go all the way to 46th,” Lozano responded, “Oh, you [know] what I can do? I’ll [go] down 11th and swing up on Crenshaw. I know that way I can get to it.” Mitchell suggested a different route, then told Lozano, “We got four minutes.”
That's the response to an officer in need of backup: "screw it." Also, "I don't want to be his help." Also, "Snorlax."And so much for "four minutes." The hunt for Snorlax continued for much longer than this original estimate. The hunt was on and no amount of law enforcement responsibility was going to stand between these officers and their quest to catch 'em all.** "All" may not include criminal suspects.
For approximately the next 20 minutes, the DICVS captured petitioners discussing Pokémon as they drove to different locations where the virtual creatures apparently appeared on their mobile phones. On their way to the Snorlax location, Officer Mitchell alerted Officer Lozano that “a Togetic just popped up,” noting it was “[o]n Crenshaw, just South of 50th.” After Mitchell apparently caught the Snorlax— exclaiming, “Got ‘em”—petitioners agreed to “[g]o get the Togetic” and drove off.When their car stopped again, the DICVS recorded Mitchell saying, “Don’t run away. Don’t run away,” while Lozano described how he “buried it and ultra-balled” the Togetic before announcing, “Got him.” Mitchell advised he was “[s]till trying to catch it,” adding, “Holy crap, man. This thing is fighting the crap out of me.” Eventually Mitchell exclaimed, “Holy Crap. Finally,” apparently in reference to capturing the Togetic, and he remarked, “The guys are going to be so jealous.” Petitioners then agreed to return to the 7-Eleven (where Sergeant Gomez later met them) to end their watch. On the way, Mitchell remarked, “I got you a new Pokémon today, dude.”
Clearly not your everyday disciplinary hearing subject matter, as can be ascertained by this perhaps unintentionally comical footnote:
According to evidence admitted at the board of rights hearing, “Snorlax” is a Pokémon creature known as “the Sleeping Pokémon.”
Truly a shame Niantic wasn't called in to testify about the relative rarity of Snorlax and/or the tactics necessary to subdue this infinite good made artificially rare by outside time and location constraints. On the other hand, we have the officers' testimony about why the pursuit of an infinite good was more important than the pursuit of a much rarer, far more finite (public) good: a robbery suspect. While it's presumably far less entertaining than an app developer attempting to explain why people with badges might be compelled to hunt large Pokemon rather than criminals, it's still instructive as to the testimony default mode when cops are caught fucking up:
Petitioners… denied playing Pokémon Go while on duty. They claimed they were monitoring a “Pokémon tracker” application on their phone, but not playing the game itself. As for “catching” Pokémon, Officer Lozano insisted this referred to “capturing [an] image” of the Pokémon on the tracking application to share with friends, while Officer Mitchell said his statements about “fighting” the Togetic referred to “relaying that information to the groups on my app,” adding that, “in order to take the picture, occasionally, the creature will fight.” Lozano said they were not engaged in a game; rather, it was a “social media event.” Mitchell said he did not consider the application a game because it was not “advertised as a game.” Petitioners admitted leaving their foot beat area in search of Snorlax, but they insisted they did so “both” as part of an “extra patrol” and to “chase this mythical creature.”
As if that somehow makes things better. It's such a terrible lie it can't even elevate the officers' actions about "wasting tax dollars" or "possibly endangering a fellow officer." The officers apparently hoped that capturing screenshots of Pokemon was somehow a better use of their time than "hunting" Pokemon.The courts -- including the trial court, the police internal hearings, and the California appeals court -- agree: this is some bullshit. You may not have your jobs back, former officers Lozano and Mitchell.
The judgment is affirmed. The City and the Chief of Police are entitled to costs, if any.
Great news, ex-cops! You are free to waste all the time you want from now on. The public, however, will not be paying for your non-police-related activities. You truly have caught them all, by which I mean "yourselves" with the unexpected superball powers of your in-car cameras. Perhaps the private sector will be more willing to put up with your desire to get paid for doing stuff completely unrelated to your employment, but I doubt it. The public sector is the most forgiving employer, what with its institutional resistance to accountability and transparency, and you somehow managed to reach the end of its patience. If the world seems particularly anti-cop at the moment, just wait until you see how it treats ex-cops.
Cops are still claiming they can detect the odor of marijuana in moving vehicles. Not only that, they claim they can pinpoint the source, even when in traffic.Not every court has been supportive of this speculative fiction. A federal court in Indiana found an officer's testimony literally "incredible" when he claimed he could smell the odor of marijuana emanating from two sealed plastic bags located inside a car traveling in heavy traffic with its windows up. The court said this testimony was not only "implausible" but "contrary to the laws of nature."The same can't be said for this decision from the Eighth Circuit Appeals Court, which originated in Iowa. The same claims were made here by two officers, who used their apparently superhuman olfactory senses to locate weed in a passing car -- one that similarly travelled through heavy traffic. In this case, both the cop car and the targeted car had some windows down. But even so, it's difficult to believe officers were capable of pinpointing the odor in traffic while dealing with "swirling winds."The cops lucked out on this stop. They discovered some marijuana ash and an unsmoked blunt during the stop. They also recovered a handgun, which led to the federal charges Vernon Shumaker was hoping to have dismissed due to the apparent unreasonableness of this search.Here's how the stop was effected, according to the Eighth Circuit's decision [PDF]:
On October 5, 2019, the officers were on patrol in a marked squad car. Officer Steinkamp drove the car, Officer Garrett sat in the front seat, and Officer Minnehan sat in the back seat. The squad car’s front windows were up, but its back windows were down. At 5:49 p.m., the officers were driving westbound on a city street behind a black sedan that had its windows up. According to weather records, the wind was traveling between 13 and 17 miles per hour. The officers did not smell marijuana while driving behind the black sedan.As the officers approached a four-way intersection, they saw a red Chevrolet Impala traveling eastbound abruptly turn left in front of the oncoming black sedan. The Impala’s “passenger side window was down.” At the intersection, the officers turned right and started driving northbound on the same street as the Impala. Shortly after making the right turn, the officers “started smelling the odor of marijuana, and that’s what drew [their] attention” to the Impala.The squad car was approximately 100 meters behind the Impala when the officers first smelled the odor. The Impala was in the left lane, while the squad car was directly behind the black sedan in the right lane. The officers did not believe that the black sedan was the odor’s source because its windows were up and they never smelled marijuana while following the black sedan before turning right.
Both officers claimed to have smelled burning/burnt marijuana. They also made other ridiculous claims -- ones ignored by the court.
The officers changed lanes and sped up to position the squad car close behind the Impala in the left lane. A black truck was immediately in front of the Impala. An SUV was farther ahead in the right lane. The road was busy at that time. The officers drove directly behind the Impala “for several blocks”—approximately 30 seconds—to “make sure that [they] kn[e]w for certain without a shadow of a doubt that [it was the] vehicle that has the odor of marijuana emitting from it.”
You can't travel "several blocks" in thirty seconds, not even if you're on a freeway. The cops either followed the car for several blocks or thirty seconds. They could not have done both. And they still insisted this method of wandering around in traffic allowed them to pinpoint the location of the odor.The officers claimed the driver had been smoking and driving, thus justifying the search. The search uncovered no evidence of this claim.
In addition to the marijuana cigarettes, the officers also recovered a digital scale with trace amounts of marijuana residue on it and a loaded nine-millimeter pistol in the center console. They did not find embers or smoke in the ashtray or a lighter.
Expert witnesses on both sides offered their findings, which were contradictory. The court decided to side with the officers' expert, who claimed it was possible to pinpoint marijuana odors while driving in heavy traffic. But he also said this, which applies directly to this case:
He admitted that marijuana cigarettes are hard to smell if they are in a closed container and that none of the marijuana cigarettes found in Shumaker’s ashtray appeared to be burning.
The Appeals Court sides with the cops and lower court's findings. Why? Because the officers were consistent in their claims they smelled marijuana.
Videos of the stop show the officers making statements both before and during the stop indicating they smelled burnt marijuana coming from Shumaker’s car while driving behind him.
So what? This is like saying no excessive force was applied because officers kept chanting "stop resisting" while they attacked an unresisting suspect. A conclusion like this simply encourages officers to maintain steady chatter about suspected illegal activity whether or not they've actually observed any. As long as officers talk a good game on camera, courts can be expected to grant deference to their cover stories.The court also says the ends can be used to justify the means.
“Officers Steinkamp, Minnehan, and Garrett testified consistently that they smelled burnt marijuana while driving behind Shumaker” and their testimony was “corroborated by their on-video statements, Shumaker’s behavior, Frye’s expert testimony, and the evidence recovered from Shumaker’s car.”
Well, I guess that's it. If an officer claims to smell marijuana -- even in situations in which it would seem almost impossible to do so -- and then finds marijuana, the stop and the search are justified. In the cases where the officer's nose has failed him and no contraband is found, the officer loses almost nothing by rolling the dice on this unsupported claim. People stopped but never cited or charged rarely sue. Lawsuits like these are mainly filed by people facing criminal charges. The court says the discovery of contraband excuses flimsy pretenses for stops and searches. And that's binding in this circuit.
One of the more annoying trends in intellectual property is when regional consortiums try to lock up terms or language around a specific style of product with arguments that only that region can produce a certain thing. If you're familiar with this concept, the first thing to leap to your mind will likely be one French wine group's control over the term "champagne" in certain regions. Another example would be a consortium of Belgian chocolate makers trying to assert that nobody can advertise "Belgian-style chocolate" unless it comes from one of them. It's all very silly, as it attempts to take a term that everyone recognizes as describing the style of a product and transform it into locked up language to be controlled by some specific originators. Like I said, silly, though, far too often, these consortiums get their way.Not the case in the United States for a group of French and Swiss cheese-makers in the area surrounding Gruyeres, who attempted to get the term "gruyere" trademarked. After the the U.S. Dairy Export Council opposed the mark, and the USPTO somehow got this right for once and rejected the application over the term being generic, the Interprofession Du Gruyere and Syndicat Interprofessionel du Gruyere took the matter to the Eastern District of Virginia courts only to find the judge there has ruled against it too.
After a lengthy legal fight, a U.S. District Court judge has ruled that Gruyere cheese does not have to come from the area in or around Gruyeres, Switzerland in order to be labeled Gruyere, writing in his decision that Americans don't associate that cheese with that town. The Interprofession du Gruyère and Syndicat Interprofessionel du Gruyère — the associations that represent Swiss and French Gruyere, respectively — filed the lawsuit after they were denied trademark protection for the word "Gruyere" last year."It is clear from the record that the term GRUYERE may have in the past referred exclusively to cheese from Switzerland and France," the judge wrote, according to the AP. "However, decades of importation, production, and sale of cheese labeled GRUYERE produced outside the Gruyère region of Switzerland and France have eroded the meaning of that term and rendered it generic."
All of this legal actions follows months of the two foreign groups sending all kinds of threat letters to a variety of American dairy companies that produce gruyere cheese. Non-helpfully, those threat letters also often came with suggestions about what these companies should call their cheeses instead: alpine cheese and mountain cheese are both among the dumbest of the suggestions.Now, while both parties have said they plan to appeal this ruling, it would be quite nice if that only resulted in a continued litigation smackdown. There is no un-ringing this bell; Americans have been consuming gruyere cheeses forever at this point and I'd wager the vast majority of them, like me until writing this post, weren't even aware that a city called Gruyeres in Switzerland existed.What's next? Belgium style ales can't be called that unless they come from that country? IPAs that can only originate in, ironically, England? Or maybe we can just stop being so absurd about all of this instead.
One of the hottest gifts in Wisconsin over the holiday season was Packers “common stock,” allowing fans who buy in to hold a small percentage of ownership in the NFL franchise. The Packers are selling 300,000 shares of the stock priced at $300 to raise money for stadium improvements at Lambeau Field and sold more than 100,000 in the first week alone. Many are skeptical of why fans are spending hundreds or thousands of dollars on shares that, by rule, cannot provide them with any financial benefit. You can find an explanation by looking at a seemingly unrelated technology: non-fungible tokens. An examination of the market for NFTs not only provides insight into the “common stock” phenomenon, but may also provide a glimpse at a different future for how we support and even participate in the decision-making process of our favorite sports teams.Packers Stock as an NFTThe Packers ownership structure is unique in the National Football League. The NFL has rules requiring that franchises be owned by an individual or a small group of owners. The Packers have an exemption to this rule, as the team has been owned by stockholders since 1923 when it sold shares of the organization to keep the team financially solvent and located in Green Bay. Stockholders were prevented from selling their shares to anyone but the team for a fraction of the purchase price in order to prevent the team from being sold to an individual and then moved to a larger market. The Packers held similar stock sales in 1935 and 1950.After financially stabilizing the team, further stock sales were held in 1997 and 2011 to fund additions and redevelopment to their stadium. Previous stockholders were given large splits, essentially guaranteeing that they had an outsized role in leadership decisions of the franchise.Shares sold in 1997, 2011, and 2021 provide minimal benefits to those who purchase them. They provide a uniquely numbered ownership certificate, the ability to purchase owners-only merchandise, an invite to the annual owners meeting, and votes to decide Green Bay's board of directors and a seven-member executive committee that represents the team at league meetings. The maximum number of shares an individual can purchase is 200, and stock cannot be resold and may only be transferred to immediate family members.Still, despite minimal benefits and the heavy restrictions, these sales have been enormously popular, with the offerings raising $24 million in 1997, $64 million in 2011, and a projected $90 million this time around. Today there are approximately 361,300 stockholders, including myself, who hold roughly 5 million shares.So what does Packers stock have to do with NFTs?NFTs face much of the same criticism as Packers stock. Created to provide scarcity to digital art and other online goods, the NFT market has increased rapidly in scope with many NFTs selling for millions of dollars in cryptocurrency. Many see NFTs as nothing but a scam on unsuspecting customers as NFTs provide little to no tangible benefit to those who purchase them — just like Packers stock.But people who buy Packers stock or NFTs seem to value these commodities for the same reason. Packers fans are proud of their team's ownership structure and want to display the part they play in keeping the Packers a fan-owned team. And as Techdirt's own Mike Masnick recently noted in a podcast, owning NFTs is also a way to prove fandom. While NFTs do not grant a copyright on an image, the blockchain does provide a proof of ownership of the NFT for all to see.Both provide a kind of status symbol of fandom for those interested in the industry to view.While Packers stock shares traits with NFTs, it lags behind as the process of sending the stocks and verifying who owns them remains offline. Likewise NFTs have yet to contemplate what role they might play in sports beyond providing ownership of sports moments such as NBA Top Shot. The following will provide some ways in which these models might converge to bring both different experiences to fans and even provide for a decentralized governance model for sports team ownership.Stock and NFTs as FandomWithout a doubt, the most popular use of Packers stock isn't attending the owners meeting or voting on the future of the team; it's displaying the certificate of your share in your home or office. Many fans own stock from each of the major sales to display together and prove their extreme Packers fandom. In this way, Packers stock is most similar to NFTs, though the digital nature of NFTs lets them be displayed to the whole world rather than just those who can physically see the stock (photos posted on the internet notwithstanding).There is no reason a marriage of the physical and digital couldn't take place with Packers stock, or other forms of fan involvement.Some of the most obvious venues are social media platforms like Twitter, which is working on integrating NFTs into the user experience. Fans of teams are often incredibly vocal on Twitter, and sometimes that gives them the chance to interact with players and other professionals on their favorite teams. If stock ownership could be converted into an NFT to be displayed on a Twitter profile, similar to the much desired blue checkmark, an owner's praise or criticism of their team might carry extra weight. At any rate, making the stock verifiable and compatible for digital display would certainly make ownership more valuable.Still, stock ownership of a professional sports team only applies to one major American sports team. There is no reason, however, the same principle couldn't be applied to other ways of proving fandom. Many fans have season tickets which could easily come with an NFT recognizing the fan as a season ticket holder. For that matter, there is no reason a team couldn't simply sell “fandom” NFTs serving a similar purpose.Proof of fandom and displaying of NFTs certainly provides some promise, but there is far more that can be done to enhance the fan experience.As previously noted, one of the benefits of owning Packers common stock is a yearly invite to attend the owners meeting in Green Bay. While the event is well attended, nowhere close to the more than 3 million shareholders attend the event. The fact that I live more than 1,000 miles away prevents me from attending the meeting in any meaningful fashion.But virtual reality spaces could provide an opportunity for that “in-person experience” at the owners meeting without the need for travel. I could interact with fellow owners in specific rooms, attend panels or keynotes about the future of the franchise, and even take virtual tours of the new facilities or additions.Once again, this concept need not be limited to NFTs denoting stock ownership. As a season ticket holder to the New Orleans Pelicans, I was invited to a private event with the team’s head coach, but I was unable to attend in person. If my season ticket purchase had come with an NFT that granted me access to such events in virtual reality, not only would I be a happier fan, but I’d also be willing to pay more for the season tickets rather than just purchasing them on a game to game basis. (Interestingly enough, due to the recent surge in COVID-19 cases, this event was held via video call)There are any number of similar benefits that could be available to team shareholders, season ticket holders, or fandom NFT owners on social media or virtual reality. Events on Twitter Spaces could be available exclusively to those with the correct NFT. Virtual reality could host any number of events, such as an owners-only viewing party of a game, or access to exclusive opportunities to meet and talk to players and coaches. Like the physical merchandise only available to Packers shareholders, digital goods could be made exclusively available to certain fans.There is little doubt that NFTs will continue to be intertwined with sports fandom for some time to come, but the potential for better fan benefits has only just started to be tapped.NFTs as a Decentralized Ownership Model NFTs’ capacity to showcase fandom is one thing, but what if they also offered fans the opportunity to have a real say in the future of the sports franchise they love?As previously noted, one of the benefits of Packers common stock ownership is voting rights on the future of the team. With the cap of 200 stocks per person and the generous split offered to owners of the first three stock sales, the average fan is unlikely to cast the deciding vote in any decision, nor are they allowed to vote on big decisions such as firing and hiring of the general manager.Nonetheless, marginal voting rights are still more powerful than the average sports fan has in making decisions about the team. They also prevent a single owner from having an outsized role in the future of the franchise. This is why so many fans of teams that have had little success often complain about bad ownership more than the players on the field. The Packers have been able to avoid this fate, and the lack of centralized ownership likely plays an important role in the team’s success throughout its history.There are even some ancillary benefits to this model. For example, the Packers are the only NFL team to publicly report their financial status, giving fans of every team a glimpse into the rest of the league’s finances. This provides substantial benefit to fans and politicians when NFL owners come crying to politicians about needing taxpayers to pay for a new stadium.But there is no reason the basic Packers structure couldn’t be updated for the digital age to allow fans to have a greater say in their favorite team. While the NFL has banned any other franchise from operating in this capacity (after all, what are professional sport leagues but cartels to enrich existing team owners), start-up leagues could borrow from this model. Furthermore, they already have a decentralized system for which to test this model of decision-making.Decentralized Autonomous Organization (DAOs) could provide a vehicle for future ownership or decision-making for sports teams. DAOs are built with smart contracts, which are self-enforcing digital arrangements. A good way to visualize a smart contract is a vending machine. The contract is fulfilled when a user inserts the right amount of money and the correct item is automatically dispensed to the purchaser. In the DAO space, it would be inserting the correct NFT or other digital token in order to vote.A recent example of democratic governance within a DAO was the Constitution DAO, where a group of people wanted to bid on purchasing one of the 13 remaining original copies of the U.S. Constitution. The donors of the project, who donated in Ethereum, were granted the ability to vote on what to do with the Constitution if they won it. Over $40 million worth of Ethereum was donated, though the bid ultimately proved to be unsuccessful. While deciding what to do with a document isn’t as complicated as running a professional sports franchise, it certainly provides some proof that large amounts of funds can be raised in a DAO.While it might be impractical to put every decision of the team up to a disbursed number of owners, large decisions like a vote of confidence in the general manager or head coach could very well be possible.The NFL or another major sports league would prove a poor test case for this structure of sports ownership, at least initially due to the size and scope of the organization as well as the rules governing operation. But there are any number of other smaller sports leagues where this could be tested.The United States Football League, a league which previously competed against the NFL in the 1980s and even won an antitrust court case against the league, is planning a relaunch in 2022. Unlike the NFL, it is expected that the new USFL will operate as a single entity with all teams owned by the league. But instead of simply expecting fans to attend and watch games, what if the league offered them a real chance of ownership of the team by selling stock in teams as a form of NFT?This ownership of the team could be used in any number of ways. Fan ownership of the team might be a way to give people a stake in their team and create loyalty with a new franchise. The league could even decide where to put teams by letting “owners” vote on where teams should be located. If the residents of New Orleans purchased stock NFTs of the New Orleans Breakers team and voted to move the team to New Orleans, the league might feel better about their location decision. What better way to prove a particular city has interest in supporting another sports franchise than by having citizens literally be invested in the team?Additionally, without previous governing arrangements, these franchises could put far more decision-making power into owners. Everything from the large decisions like hiring or firing of general manager and head coach to choosing a starting quarterback, or smaller ideas like selecting a mascot, could be run through a vote of the DAO.Decentralized ownership provides a few benefits beyond greater fan involvement. The dispersed ownership structure of the Packers can help prevent a bad owner from making bad decisions causing the franchise to suffer. A DAO could rather easily prevent an individual or group of individuals from amassing too much power. Just ask Washington Football Team fans how they feel about Dan Snyder. Additionally, it would prevent the problem of general fan polling, where teams end up with mascots like Dogey McDogeface—presumably, fans invested in the team would like to see it succeed.This model of sports ownership could even be tried with independent baseball teams in America or as a way to support historic franchises, such as the second oldest soccer club Wrexham A.F.C, rather than relying on millionaires to pick up the tab.Whether or not the Packers model can be replicated is a serious question, but that doesn’t mean that advances in technology aren’t well positioned to impact and potentially disrupt the professional sports world. Fan interest and involvement in the sporting world remains high, and the potential for crowdfunding and decentralized decision-making are improving all the time. Sports franchises are ultimately dependent on fan support to exist. Why not give fans a bigger say in how they root for, or even run, their team?Eric Peterson is a contributor to Young Voices and lives in New Orleans.
Did you all just hear that? That tiny, nearly silent series of screams you hear all around you? Well, that was the entire craft beer industry crying out in fear and pain. Why? Well, because Monster Beverage Corp announced that it is going to be a brewery.
Energy drinks maker Monster Beverage Corp (MNST.O) said on Thursday it had agreed to buy craft beer and hard seltzer maker CANarchy Craft Brewery Collective Llc for $330 million in cash, marking its entry into the alcoholic drinks market.Monster said the deal would add alcoholic brands Cigar City, Oskar Blues, Deep Ellum, Perrin Brewing, Squatters and Wasatch brands to its beverage portfolio and not include CANarchy's restaurants.
If you're in the craft brewing industry and you're not dismayed at this news, then you don't know Monster Energy. This is the company that has taken trademark policing to caricature levels. If you need examples of this, they are legion. Monster Energy went after an autobody shop for using the letter M and the color green in its branding. Monster Energy opposed a teen's trademark application despite the branding being totally dissimilar. Monster Energy opposed the trademark for a pizza chain because it named itself Monsta Pizza. And on and on and on.So why should this concern the brewing industries? Well, for starters, Monster Energy has attempted in the past to oppose and threaten liquor companies for the crime of having an "M" in their branding. Here is one brief snippet I wrote at the time in that post about Monster opposing a trademark application for Murlarkey Distillery:
To start, the two companies operate in different markets. Yes, both serve liquid for consumption, but one makes an energy drink, while the other is selling liquor, such as vodka. Those are distinct markets and not easily confused during the purchasing process.
With this acquisition, the above statement goes away in many respects. Suddenly, Monster is in the alcohol business. This lends weight to its ability to argue even more than it did before that there might be brand confusion in its attacks, even if those attacks remain frivolous. But even putting the Monster brand aside, take the brands in the acquisition itself. What does it mean, given that Monster now owns Oskar Blues Brewery, for Oscar's Brewing Company? Or any of the several different brews that are branded with the word "Oscar"?And that's just taking one of the brands and taking the most obvious guesses as to where Monster Energy could get aggressive. As readers here will know, Monster goes well beyond the obvious targets and gets really, absurdly creative for who it thinks is infringing on its trademarks.It's not a sure thing that this acquisition is going to be a nightmare for the craft brewing industry, but all of Monster's history of aggression sure points us in that direction.
In the video game space, it has become commonplace to see creators freak out over "rip-offs" and "clones" of their games when the targets of their ire are actually not rip-offs or clones at all. This typically comes down to the all to common confusion over whether you can own or protect ideas versus specific expression. Typically in these stories, it turns out someone is complaining that they're seeing a similar idea in other games, whether it's first person shooters that share common features, the explosion of battle royale games, or even just artwork.Which brings us to Wordle, a browser-based game that I gleefully enjoy telling my fellow Techdirt readers I have not played. However you feel about the game, it's notable in that its creator has been adamant about not monetizing the game, nor has he bothered registering any copyright or trademark for it. Between that and the game's popularity, there is a ton of goodwill there, which may explain why the world smacked down another person's attempt to actually clone (basically) the game into a mobile app that then required paid subscriptions for all of the features.
“I love Wordle so much I decided to make my own Wordle app but with a twist!” tech entrepreneur Zack Shakked wrote on Twitter yesterday. “There’s not just 5-letter words, but also 4, 6, and 7 letter words too! You can also play unlimited times if you’re on the Pro version.”The new version of Wordle on the App Store didn’t just have bigger puzzles, it also required you to pay a subscription to unlock all of its features. It was a greedy innovation that, in the words of Any Baio, compounded the plagiarism into a “naked cash grab.” The downloads, reviews, and active paid trials instantly started rolling in.
Yes, they rolled in. And Shakked took to Twitter to brag about the adoption rate in the most irritating way possible.
"We're going to the fucking moon." That prediction turned out to be true, by which I mean the creator ended up in a place where all the oxygen had been sucked into a vacuum. See, that goodwill I mentioned before for the original Wordle creator led to the internet losing its damned fool mind over this cloning of the Wordle game into a money-grabbing app. In addition to Andy Baio dunking on Shakked, so did many, many others.
Cabel Sasser of indie studio Panic, the publisher behind Untitled Goose Game currently working on the Playdate handheld, responded to Shakked that he couldn’t wait to show Wordle’s true creator how to navigate the App Store takedown process. Others were more explicit. “Absolutely fuck you,” wrote Vlambeer cofounder Rami Ismail.
And eventually, Apple took the Shakked's app down. The reasons why are trivially easy to understand: the app called itself "Wordle", had nearly the exact same gameplay and look as the original game, and was clearly attempting to profit off of the work of others.But notably absent in all of this was anything related to actual intellectual property registrations and the like. The world managed to take the right and corrective action on a bad actor without talking about copyright, trademarks, lawyers, cease and desist notices, DMCA takedowns, or any of that. You can chalk some of this up to our general ownership culture I suppose, but the truth is this all feels like the public doing its thing via a backlash on someone doing something shitty and Apple responding to that.Which leads to the obvious question: why can't this be the norm?
Summary:In the lead-up to the 2018 midterm elections in the United States, progressive voters in seven competitive races in the Midwest were targeted with a series of Facebook ads urging them to vote for Green Party candidates. The ads, which came from a group called America Progress Now, included images of and quotes from prominent progressive Democrats including Bernie Sanders and Alexandria Ocasio-Cortez with the implication that these politicians supported voting for third parties. The campaign raised eyebrows for a variety of reasons: two of the featured candidates stated that they did not approve the ads, nor did they say or write the supposed quotes that were run alongside their photos, and six of the candidates stated that they had no connection with the group. The office of Senator Sanders asked Facebook to remove the campaign, calling it “clearly a malicious attempt to deceive voters.” Most notably, an investigation by ProPublica and VICE News revealed that America Progress Now was not registered with the Federal Election Commission nor was any such organization present at the address listed on its Facebook page.
In response to Senator Sanders’ office, and in a further statement to ProPublica and VICE, Facebook stated that it had investigated the group and found no violation of its advertising policies or community standards.Two years later, during the lead-up to the 2020 presidential election, an investigation by the Washington Post revealed a “troll farm”-type operation directed by Rally Forge, a digital marketing firm with connections to Turning Point Action (an affiliate of the conservative youth group Turning Point USA), in which multiple teenagers were recruited and directed to post pro-Trump comments using false identities on both Facebook and Twitter. This revelation resulted in multiple accounts being removed by both companies, and Rally Forge was permanently banned from Facebook.As it turned out, these two apparently separate incidents were in fact closely connected: an investigation by The Guardian in June of 2021, aided in part by Facebook whistleblower Sophie Zhang, discovered that Rally Forge had been behind the America Progress Now ads in 2018. Moreover, Facebook had been aware of the source of the ads and their deceptive nature, and of Rally Forge’s connection to Turning Point, when it determined that the ads did not violate its policies. The company did not disclose these findings at the time. Internal Facebook documents, seen by The Guardian, recorded concerns raised by a member of Facebook’s civic integrity team, noting that the ads were “very inauthentic” and “very sketchy.” In the Guardian article, Zhang asserted that “the fact that Rally Forge later went on to conduct coordinated inauthentic behavior with troll farms reminiscent of Russia should be taken as an indication that Facebook’s leniency led to more risk-taking behavior.”Company considerations:
What is the best way to address political ads that are known to be intentionally deceptive but do not violate specific advertising policies?
What disclosure policies should be in place for internal investigations that reveal the questionable provenance of apparently deceptive political ad campaigns?
When a group is known to have engaged in deceptive practices that do not violate policy, what additional measures should be taken to monitor the group in case future actions involve escalations of deceptive and manipulative tactics?
How important should the source and intent of political ads be when determining whether or not they should be allowed to remain on a platform, as compared to the content of the ads themselves?
At what point should apparent connections between a group that violates platform policies and a group that did not directly engage in the prohibited activity result in enforcement actions against the latter group?
Resolution:A Facebook spokesperson told The Guardian that the company had “strengthened our policies related to election interference and political ad transparency” in the time since the 2018 investigation, which revealed no violations by America Progress Now. The company also introduced a new policy aiming to increase transparency regarding the operators of networks of Facebook Pages.Rally Forge and one of its page administrators remain permanently banned from Facebook following the 2020 troll farm investigation, while Turning Point USA and Turning Point Action deny any involvement in the specifics of either campaign, and Facebook has taken no direct enforcement action against those groups.Originally posted to the Trust and Safety Foundation website.
Back in October, I noted the huge amounts of money pouring into music copyrights, largely driven by the global rise of online streaming. Since then, that trend has continued, most notably with Bruce Springsteen's sale of his recordings and songwriting catalogue to Sony, for a rumored $550 million. As I pointed out in the post, one of the problems with this "financialization" of the sector is that music copyrights become completely divorced from the original creativity that lies behind them. They become just another asset, like gold, petroleum or property. On the Open Future blog, Paul Keller has pointed out a plausible – and terrifying – consequence of this shift.As Keller notes, the more the owners of copyrights become detached from the creative production process, the less they will care about the nominal balances within the system. In particular, the central quid pro quo of copyright – that a government monopoly is granted to creators for a limited period, after which the work enters the public domain – will be perceived simply as an obstacle to greater profits. The financialization of the music world means that an artist's ability to use the public domain as a foundation for future creativity, or to take advantage of copyright exceptions, will be of no interest to the corporations and private equity firms that are only concerned about the value of their own assets. For Keller, the end-game is clear:
From the perspective of financial investors, copyright is not much more than a bundle of rights created out of thin air that structure financial flows and it follows that there is absolutely no reason why they should not push for governments to make these rights last longer. Once the slate of recording artists that entered into these deals have passed away and will not be able to speak up anymore – or complain that they have been shafted – it will only be a question of time until financial investors start pushing for longer term durations or – more likely – perpetual copyright. Compared to this new class of cultural predators, the good old Walt Disney company will quickly start looking like an innocent schoolboy.
It has been hard enough in the past to make copyright a little fairer for members of the public. If Keller is right – and I fear he is – it will become close to impossible to continue that process in the future unless people start defending vociferously what few rights that they currently have in the world of copyright.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.Republished from the Walled Culture blog.
The New York Police Department is complaining about having to do work again. The New York Post reports officers are unhappy that they're required to do a little bit more paperwork for every stop, regardless of whether the stop results in a citation or arrest.
NYPD cops will soon have to start recording the race, gender and age of every person they pull over during a vehicle stop — even cyclists, The Post has learned.From Jan. 1, officers will be required to fill out a new form that notes the demographics of the person driving the vehicle or bike, and whether any police action was taken against them, according to an internal order obtained by The Post.The forms have to be filled out even if no law enforcement action is taken.
This is nothing more than the logical next step for a department that has repeatedly shown it engages in biased policing. Years of lawsuits over its stop-and-frisk program resulted in a court-ordered mandate to collect demographic information on stop-and-frisk encounters. The NYPD complained about the extra work when this was ordered in 2013. Then it spent the next half-decade refusing to comply with it.Another mandate followed, demanding the collection of information on all stops, which would seemingly include any stop, even those not conducted on foot. The NYPD wasn't any happier with the new mandate and one of its unions claimed that recording demographic information would result in fewer stops and less policing.That attitude remains unchanged three years later. The NYPD has been given another mandate and officers are once again claiming they're just not going to do it. Their rationale for failing to comply with direct orders? People might find out NYPD officers are engaged in biased policing.
But an NYPD officer with more than two decades on the job said it is just a “recipe for disaster.”“As an officer, I’m definitely going to think twice about pulling anyone over. That’s the first thing they’re going to look at how many black and Hispanic people you pulled over,” the cop said.The officer added that some cops were already hesitant to stop people — and the additional paperwork would just deter them even more.
The PR spin by the NYPD implies something different than the opinions offered by the rank-and-file:
“We are complying with the requirements of Local Law 45 of 2021,” an NYPD spokesman said.
But it's not a complete rebuttal. It is possible to comply with the requirements while also engaging in fewer stops of drivers and bicyclists. It sets the stage for the NYPD to blame any rise in crime rates on demographic tracking requirements, rather than step up and discipline officers for refusing to comply with the order or do their jobs. Chances are good no officers will be punished for refusing to do either of these things.And, once again, a police union is there to blame everything on everyone else, rather than suggest officers do their best to comply with the mandate. Here's Police Benevolent Association President Pat Lynch, railing against everyone else who isn't a cop refusing to their job.
“They passed bill after bill to further the anti-police narrative, but did absolutely nothing to help us curb the bloodshed in our neighborhoods,” he said. “The incoming Council needs to refocus their priorities. Instead of new paperwork, we need meaningful support to get violent criminals off the street.”
I'm not sure what the NYPD is incapable of accomplishing with a $10 billion annual budget, but city officials have agreed to a $465 million increase for 2022. That suggests there's at least a half-billion in "meaningful support" headed its way and that the city council isn't just engaging in an anti-cop narrative. This just sounds like cops who don't want the public to be better informed about how this $10 billion/year is being spent.If cops are afraid of engaging in any policing because of a fear of it being interpreted as biased policing, perhaps they should direct their anger at the decades of biased policing that led to these mandates. The culture of the department could have been changed at any time. Instead it took court orders and new laws to force the NYPD to confront its own racism. Now that it has to, officers are deciding they'd rather not be forced to look in the mirror.
You all know about Olive Garden. It's the chain of... oh, let's just play along and call them Italian restaurants that have unlimited breadsticks and names of supposedly Italian offerings that appear to have gotten their names by inputting a bunch of Italian food words into a dilapidated AI program that combines them into a series of unholy dish-names. Sure, there's "Shrimp Scampi", but there is also "Five Cheese Ziti Al Forno" and "Lasagna Fritta". I kid of course, but the chain and its parent company, Darden, have also found their way onto Techdirt in the past by being overly aggressive when it comes to trademark enforcement. For instance, Darden attempted to shut down the site allofgarden.com, which was dedicated to tongue in cheek reviews of the chain's dishes. Darden later apologized for that, blaming some kind of legal bot that crawls for potential trademark infringements on the brand.We'll have to see if something similar happens here, as Darden is now going after a site that jokingly sells NFTs to "own" individual Olive Garden locations and/or simply get NFT tokens for free unlimited breadsticks. The site, nonfungibleolivegardens.com has actually sold out of individual locations, but points to a secondary market. The breadstick tokens are, as are their real life counterparts, free and unlimited. Olive Garden's imagery and name appear all over the site, naturally, and the site's Twitter account confirmed that the site's host, OpenSea, had received a takedown demand (the recipients incorrectly call it a "DMCA" takedown, even though it's about trademarks).
Now, again, Darden IP appears all over those pages. That being said, the site has general language and a specific Q&A on its home page that makes it abundantly clear that it is not affiliated with the real life Olive Garden in any way. This is all one giant joke, in other words, albeit one where some measure of real money is changing hands. It's also built to be a place for Olive Garden enthusiasts to express that enthusiasm. From the homepage:
For too long, ownership of Olive Garden franchises has been dominated by the capricious whims of the fiat system. That’s why we’re enabling anyone to trustlessly mint a nonfungible token representing 1 of 880 real Olive Garden franchises in the United States.Our goal is to bootstrap a community of Olive Garden enthusiasts, which is why the franchise mint price is tethered to the reasonable cost of a Tour Of Italy entree ($19.99, as of Dec 20, 2021).
And later, in the Q&A:
Is this affiliated with Olive Garden?No. We are simply a community of Olive Garden fans invested in both trustless future economies and delicious, reasonably-priced Italian fare.
Hell, the entire "business plan roadmap" the site lays out involves plans for celebrity influencers, "Layer 2 on-chain curbside pickup", and the eventual buyout of Olive Garden from Darden. The whole thing is done for funsies. Which means that the Darden folks could figure out a way to get involved with the fun, instead of trying to stamp it out. Whether they will or not remains to be seen.But NFGO certainly isn't backing down. In addition to the response letter the site sent, which you can see in the embedded/linked tweet above, they've also come out with two new NFT tokens. Those would be for -- you guessed it -- the takedown notice they received and that response letter.Because when you're here, you're hilarious.
In 2014, law enforcement in America was changed forever after an officer-involved shooting in Ferguson, Missouri. The violence and negativity aimed at law enforcement following that incident sparked C.O.P.S. to implement the first L.E.A.D. January 9 was chosen as a day to encourage citizens to do something special for their community’s peacekeepers and take the time to show their appreciation.
So... pretty fucking problematic. And this wording recasts the killing of an unarmed black man by a white cop as a watershed moment where the general public -- for apparently no reason! -- began hating on cops. Nothing says genuine appreciation like a fake-ass celebration of cops created by cops and their lobbyists. Nothing is more sincere than an industry congratulating itself, as someone once said about the Oscars. And I think that sentiment applies here.But, hey, ThinBlueLiners and BlueBackers: do you really want to commemorate the year in law enforcement? Well, let's take a look at the highlight reel for fiscal 2021:January 5, 2021: City of Philadelphia pays out $9.8 million for wrongfully imprisoning a man for 28 years.
Chester Hollman III was 21, with no criminal record and a job as an armored-car driver, when he was pulled over in Center City one night in 1991 and charged with the fatal shooting of a University of Pennsylvania student in a botched street robbery. A judge ordered him released last year at age 49, citing evidence that police and prosecutors built their case on fabricated statements from people they coerced as witnesses and later withheld evidence pointing to the likely true perpetrators of the crime.
January 8, 2021:Eighth Circuit Appeals Court says cop who pulled over a driver for flipping him off isn't entitled to qualified immunity.
Garcia’s raising his middle finger at Officer Baker is a rude and offensive gesture but nonetheless, under current precedent, is a constitutionally protected speech activity.
February 1 ,2021: Six more Houston cops involved in a botched, deadly drug raid predicated on a drug squad cop's lies are now facing criminal charges.
That's 12 officers, all under indictment, and all involved in the drug raid.
February 8, 2021: Appeals Court to cop: no reasonable officer would think it's ok to tear gas journalists for performing journalism.February 10, 2021: Accountability activists discover cops are now playing music on their own phones in hopes of triggering DMCA takedowns of activists' recordings.
By the time Devermont is close enough to speak to him, the officer’s phone is already blasting “In My Life” by the Beatles — a group whose rightsholders have notoriously sued Apple numerous times.
February 26, 2021: Cop-friendly Fifth Circuit Appeals Court (following the Supreme Court's lead) says it's completely reasonable for cops to tase a man soaked in gasoline, which resulted in the person's death and the destruction of his house.
March 8, 2021: Police whistleblower alleges Vallejo (CA) police officers celebrated killing people with bent badges and backyard BBQs.
At the time of [Captain John] Whitney’s firing, nearly 40% of officers on the force had been in at least one shooting, Open Vallejo research shows. More than a third of those had participated in two or more. The department employs about 100 sworn personnel.
March 22, 2021: Cop lies about a traffic stop, has his lies undone by home security camera footage.
Officer [Colt] Black’s report said, “Cordero immediately exited the driver door and began to charge towards my patrol vehicle.”It also indicated Cordero approached the officer with closed fists.[...]After Cordero shared the footage with police, Officer Black wrote in another report, "I believe my perception was altered due to the high stress of the incident.”
March 25, 2021: Recording show California cops and prosecutors lied about protesters to in order to bring bogus gang charges against them.April 5, 2021: Appeals Court says it wasn't clearly established Denver cops couldn't stop a citizen from recording them even though they had received specific training instructing them that recording cops was protected First Amendment activity years earlier.April 14, 2021: Windsor, Virginia cops brutalize a black soldier for daring to seek a well-lit area to pull over in.
They told him to exit the vehicle. They also told him to keep his hands outside of his vehicle. Lt. Nazario's seatbelt was still fastened. His door was locked. Complying with one order (exit the vehicle) would result in a violation of other orders (keep your hands outside of the vehicle).You can't win, as Lt. Nazario suspected. He pointed this out.One officer said non-compliance of the conflicting orders would result in Nazario "riding the lightning," presumably referring to the officer's Taser.
April 14, 2021: Lying NYPD drug cops cost prosecutors over 100 drug convictions.
[Detective] Franco was charged in 2019 with 26 criminal counts, including perjury and official misconduct, after investigators in the Manhattan district attorney’s office said that he had testified to witnessing several drug buys that video footage showed did not happen or that he could not have seen.
April 16, 2021: Released body camera footage shows a Chicago cop shooting and killing an unarmed 13-year-old.April 20, 2021: Appeals Court strips immunity from cops who punched a man hanging from a second story window and tased his injured body after he fell to the ground.April 21, 2021: Minneapolis police officer Derek Chauvin is sentenced to 22 years in prison for murdering unarmed black man George Floyd by kneeling on his neck for nearly 10 minutes… and for three minutes after another officer failed to detect a pulse. The killing was caught on camera by several Minneapolis residents, immediately contradicting the PD's first official statement.This is how the Minneapolis PD originally described a white cop pressing his knee into the neck of an unarmed black man until he was dead:
Man Dies After Medical Incident During Police InteractionMay 25, 2020 (MINNEAPOLIS) On Monday evening, shortly after 8:00 pm, officers from the Minneapolis Police Department responded to the 3700 block of Chicago Avenue South on a report of a forgery in progress. Officers were advised that the suspect was sitting on top of a blue car and appeared to be under the influence.Two officers arrived and located the suspect, a male believed to be in his 40s, in his car. He was ordered to step from his car. After he got out, he physically resisted officers. Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress. Officers called for an ambulance. He was transported to Hennepin County Medical Center by ambulance where he died a short time later.At no time were weapons of any type used by anyone involved in this incident.No officers were injured in the incident.
April 26, 2021: Louisiana drug cops are so shitty at their job their target catches them placing a tracking device on her car.May 3, 2021: Fifth Circuit gets one right, strips immunity from officers who "helped" a mentally ill man by restraining him to death.May 13, 2021: South Dakota court says government not responsible for house destroyed by cops searching for a fugitive who wasn't even in the home.May 17, 2021: In what must be some sort of record, Chicago PD officers manage to rack up over 100 misconduct allegations while performing a single drug raid at the wrong address. But there's always a chance the Chicago PD will top itself due to its inability to raid the correct residences…
Chicago police incorrectly raided the same family's home three times over the course of four months this year, according to a federal civil rights complaint filed Friday.The complaint was filed against the city and Chicago Police Department on behalf of Krystal Archie and her three children: 14-year-old Savannah, 11-year-old Telia and 7-year-old Jhaimarion, according to a statement from Archie's attorney Al Holfeld.
May 20, 2021: Violent, bigoted police officer (but I repeat myself...) shocked to learn his violent, bigoted texts will be used as evidence in his criminal trial for [wait for it…] beating another police officer during protests against police violence.June 3, 2021: Chicago PD's predictive policing program manages to get an innocent Chicago resident shot twice.
June 3, 2021: Man sues after cop's field drug test says his daughter's ashes are meth and ecstasy.June 4, 2021: Small town police chief threatens critic with bogus criminal charges, ends up facing real criminal charges.
The United States Attorney’s Office for the Middle District of Pennsylvania announced today that Brian Buglio, age 45, of Lattimer Mines, Pennsylvania, was charged in a criminal information on May 27, 2021, with a civil rights violation.According to Acting United States Bruce D. Brandler, the information alleges that Buglio, the Chief of Police for the West Hazleton Police Department, threatened a private citizen with criminal charges, in retaliation for social media posts created by the private citizen that were critical of Buglio and of the West Hazleton Police Department.
June 4, 2021: Louisiana State Police finally release body cam footage that shows troopers beating a man to death following a high-speed pursuit. Troopers had originally told police officials and coroners the injuries were the result of a car crash.June 8, 2021: Reports, released footage undercut officer's statements about his killing of a suicidal teen in 2018.
To make room for the disparagement of the dead teen, the investigators excluded crucial information from the report, like the initial supervisor's notes from the shooting scene and any attempts made by the crime lab to reconstruct the shootings and track bullet trajectories. The latter would have shown Jenison fired from the side of the vehicle, rather than from the rear, calling into question his assertions that the reversing van was coming towards him.Officer Jenison also did not know who was in the van at the point he started firing. All he knew was he was checking on a suicidal teen who might have been carrying a knife. Instead of verifying any of this, he opened fire on the driver of the van simply because he chose to reverse down the driveway like anyone would when pulling out of a garage.
June 21, 2021: Owner of a New York City Shake Shack sues NYPD officers and police union for falsely claiming his restaurant tried to poison a police officer.July 6, 2021: Cops are still playing copyrighted music on their cellphones in hopes of blocking recordings and livestreams by citizens. And, in this case, the deputy openly admits to doing this just to fuck with uploads.July 12, 2021: Utah cop arrests a person for "destroying" a "Back the Blue" sign posted near a local gas station. Adds "hate crime" enhancement because the person allegedly "smirked" while taking down the sign.
July 12, 2021: Five Palo Alto cops sue the city, claiming to have been "harassed" by a Black Lives Matter mural. They make this claim despite having to go more than a block away from the PD entrance to experience said "harassment."
July 19, 2021: Officer who couldn't handle being sworn at by a person ordered to pay $15,000 in legal fees.July 21, 2021: Cop claims he can smell weed sealed in plastic bags under the seat of a moving car in traffic with its windows up. Court: something stinks here and we doubt it's the mobile mary jane.July 26, 2021: Sometimes doing less is doing more: Police union awards "Officer of the Year" to cop who spent the entire year suspended.July 30, 2021: Florida sheriff's department sends out letters welcoming residents to its (likely unconstitutional) pre-crime harassment program.August 3, 2021: Oklahoma deputies perform shittiest magic trick* ever, making more than $10,000 disappear after seizing cash from guys just trying to buy some real estate.*Illusion [ed.]
They keep asking like do I have cash, do we have cash, many times, many times. I say, ‘Of course we have cash,'” Nang told News 4.He said that’s when the deputy started searching their car and found the $141,500 in cash that they were going to use for the land purchase.[...]According to the court documents, only $131,502 was seized, which is $10,000 short.
August 10, 2021: Not-so-pseudonymous cop M.R. (Ryan Olthaus) continues to argue he should be allowed to sue his critics anonymously despite everyone and their activist brother already knowing who he is: Officer Ryan Olthaus of the Cincinnati Police Department.September 1, 2021: Appeals Court apologizes for being unable to exercise jurisdiction over cross-border bullets fired by US officers. Try to die on our side of the border, court advises.September 9, 2021: THIS MACHINE KILLS PETS: body cam footage shows an officer killing a couple's dog within 15 seconds of arriving at the scene of a non-crime.
September 10, 2021: Cop who killed a suicidal man less than 11 seconds after entering his home is convicted of murder. A good cop testified against the murder and, realizing her days were probably numbered at this department, moved on to work for the FBI. Her honesty secured a conviction but might have cost her her career.
[Officer Genisha] Pegues, testifying for the prosecution, told the jury that she never felt threatened by Parker and that she didn’t need Darby to save her life. She testified that Parker told her he didn’t want to hurt her.Robert Tuten, Darby’s lead defense attorney, went after Pegues.Tuten asked whether Pegues put herself and other officers in danger by standing in front of an armed man with her gun pointed down, rather than at Parker.“Dangerous is the job,” Pegues, who was a police officer for six years, replied. She said tensions rose during the encounter when Darby arrived.
September 17, 2021: Hey, Minnesota State Troopers, some of your officers are being sued! [OPACITY MACHINE GO BRRRRRR]
Minnesota State Troopers engaged in a massive "purge" of emails and text messages shortly after the agency was accused of using excessive force during the protests and riots over the death of George Floyd last summer, according to court testimony filed late Friday.
September 27, 2021: Minneapolis cops claim it's impossible to do proactive -- or indeed, almost any -- police work now that one of their own has gone down on murder charges. They will, however, continue to collect paychecks for the work they're no longer doing.September 29, 2021: Court informs Sheriff that it's quite obviously a Constitutional violation to send a deputy out to tell her to delete an Instagram post about her COVID status.October 7, 2021: Court grants Florida deputy qualified immunity for his inability to drive by an "I EAT ASS" window decal without feeling obliged to get personally involved.
October 18, 2021: LAPD gets defunded so hard it only has an extra $20 million to blow on bullets, snacks, and surveillance tech.October 22, 2021: Idaho's top court smacks state's drug dogs on the nose with a rolled-up Constitution, says uncontrolled sniffs of car interiors are rights violations.November 1, 2021: Hawaii cops arrest a 10-year-old over an unflattering drawing of another student.
November 5, 2021: A homeowner's association complains about lawn care to law enforcement. End result: a person killed by cops over unacceptable grass length.November 18, 2021: LA Sheriff's Department harasses tons of Latino bicyclists, claims it's all about stopping crime. The Department, however, is unable to explain why its officers are unable to find any evidence of criminal activity.November 23, 2021: Baltimore PD sued for lifting clothes, cash, and phones off the recovering bodies of shooting victims, apparently plans to mount "at least it's not grave-robbing" defense at trial.
Plaintiff Amber Spencer is a 27-year-old Black woman who resides in the County of Baltimore, Maryland. Just before midnight on March 20, 2020, a stranger shot Ms. Spencer in the head and chest while she was attending a cookout near 1800 North Chapel Street in Baltimore, Maryland. After the shooting, Ms. Spencer was transported by ambulance to Johns Hopkins Hospital, where BPD officers seized her personal property without her consent, including her cell phone, jeans, shirt, shoes, car key, and approximately $400 in U.S. currency. These items remain in BPD custody.
November 29, 2021: Rack 'em up: another NYPD cop caught lying. Another 60 convictions go in the trash.December 7, 2021: In a scene Martin Scorsese would have loved to have written, Newark police officer Luis Santiago struck and killed a 29-year-old nurse while driving in his personal vehicle. That alone would have been news. But what happened next is the sort of thing that stops presses:
After striking Dymka, who was a nurse, neither Santiago or his passenger, Albert Guzman, 25, of Newark, called 911 or tried to render aid.“(The suspects) returned to the scene multiple times before Santiago loaded the victim into the Honda and removed him from the scene,” [Essex County Prosecutor Theodore] Stephens said. “Santiago then took the body to his home in Bloomfield where he, his mother and Guzman allegedly discussed what to do with the body.”Eventually, Santiago drove Dymka’s body back to the scene of the crash, Stephens said.
December 13, 2021: For some reason, it takes a federal court ruling to make it clear to cops that framing someone for a crime they didn't commit is a Constitutional violation.December 27, 2021: Dallas PD brags about stealing money from someone at the airport. Bad move. Now its oversight board has questions and wants answers.Another year in the books for the Blue Team. I'm sorry if this "appreciation" rings as hollow as your endless assurances you'll do better this year. I'd meet you halfway, but I'm pretty sure that means I'd be making 100% of the effort. Cop culture can be changed. Unfortunately, there are few cops who want to change it. See you next year!
Windsor, Virigina was the recipient of unflattering nationwide news coverage due to two police officers deciding a black driver -- and Army medic -- needed to be brutalized for seeking a well-lit area to pull over. The whole thing was caught on the officers' body cameras, including their threats to make Lieutenant Caron Nazario "ride the lightning" (a reference to the officer's Taser) as well as the officer's affirmation that Nazario was right to be scared to exit his vehicle.A low-speed, non-lengthy, non-chase of one hundred seconds led to several minutes of violence, threats of further violence, and violated rights. The officers shouted conflicting orders -- to both keep hands where they could be seen as well as to exit the vehicle, something impossible for Nazario to comply with considering he still had his seatbelt on. The officers pointed their guns at him the entire time, pausing only to pepper spray him in the eyes. Nazario sued. That lawsuit is still ongoing. One of the officers -- Daniel Crocker -- is also facing criminal charges.But there's a postscript to this case that involves another lawsuit involving the Windsor Police Department. The state's Attorney General, Mark Herring, is suing the Town of Windsor over biased policing engaged in by PD officers.
After a months-long investigation revealed disturbing evidence of discriminatory, unconstitutional policing, Attorney General Mark R. Herring today filed suit against the Town of Windsor alleging that its police department has operated in a way that led to discrimination against African Americans and violated their constitutional rights. This is the first enforcement action against a law enforcement agency under the new state law empowering the attorney general to file suit to stop systemic violations of Virginians’ civil rights.
The lawsuit [PDF] alleges plenty of questionable behavior by the town's law enforcement officers -- something that explains the actions taken by the two officers involved in this controversial traffic stop. Here's what the Attorney General uncovered during the investigation of the Windsor PD:
Black drivers accounted for approximately 42% of the department’s traffic stops from July 1, 2020 through September 30, 2021 (810 of 1,907 stops.) During that time period, the Town stopped Black drivers between 200% and 500% more often than would be expected based on the number of Black residents in the town or county.From July 1, 2020 through September 30, 2021, the Department searched more vehicles driven by Black drivers than White drivers, even though Black residents do not constitute the majority of the population of the Town or the Commonwealth.
Not only is there evidence of biased policing, there's evidence the Windsor PD misled its most direct oversight, the Windsor Town Council.
For many of the examined months, there was a significant discrepancy between the number of traffic stops and citations reported to town council and reported to the Virginia State Police for tracking and reporting purposes. In all instances the numbers reported to the Commonwealth were lower than those shared with town council, and the discrepancy has not yet been explained.
The lawsuit seeks an injunction barring the PD from engaging in discriminatory policing. It demands policy changes to ensure traffic stops are bias-free, mandates accurate reporting of use of force incidents, and order the PD to submit to third-party monitoring of its compliance with state and local laws, as well as the specifics of any order issued by the court handling this lawsuit.The Town of Windsor has already responded. And it claims [PDF] AG Mark Herring is doing this for the clicks:
The decision by Attorney General Mark Herring to file a lawsuit against the Town of Windsor on the eve of the new year and just 17 days before he leaves office is clearly political.[...]Despite the Town’s cooperation and progress, the Attorney General’s office, just days later, issued an ultimatum demanding immediate action or the threat of litigation, knowing the Town Council would not meet again to address this until January 11 – a mere four days prior to Mr. Herring leaving office. Given that the Complaint cites questionable data on the quantity and nature of traffic stops and searches, as well as its reporting, the suit lacks any context as to what the Town has done over the past year to address any concerns. The Town is stunned that this suit was filed on December 30, just hours before Courts closed for the year.[...]Therefore, there was no need for Mr. Herring to file this lawsuit, except perhaps for the sake of headlines, which he will surely receive.
A government complaining about how another government entity engages in government business is pretty rich. Government officials wait until holiday weekends to dump bad news. Litigation almost always commences at the last minute, often just before the statute of limitations takes effect. Everything is political, even when everyone in political agencies claims it isn't.But it's extremely disingenuous to claim this was done solely for the headlines. An actual investigation occurred and the results led the AG to the conclusion a lawsuit was needed to change the Windsor PD's evidently-biased policing. The results of this investigation will also aid Lt. Nazario's lawsuit against these officers, as he will now be able to point to a pattern and practice of targeting minorities.The town says it "looks forward to a reasonable conversation" with AG Herring's successor. But its first response is anything but reasonable and suggests the town feels its police department doesn't need to be changed, much less subjected to more scrutiny. And that suggests any future conversations will be short on reasonableness and heavy on defensiveness.
We've talked a great deal about Major League Baseball here at Techdirt. Notably, for a long time those discussions have positive in nature, whether it was MLB's interestingpivots once COVID-19 went global or the expansion of its excellent streaming services. Now, while the league has also had issues playing IP enforcer in the past, or the more recent self-own the league conducted in response to its players lockout, the fact is that commissioner Rob Manfred has generally been a fresh voice of modernity and technological progress for the league.That makes it all the more perplexing that Manfred is currently being introduced to the concept of the Streisand Effect. At issue is the ousting of famed MLB reporter Ken Rosenthal. Rosenthal is, perhaps, one of the most respected baseball reporters in the industry, and was apparently fired from the MLB Network as a result of a scathing piece he did on Manfred's handling of baseball's 2020 season as it relates to working something out with the Players' Union for handling COVID protocols. Rosenthal was quietly suspended from MLBN airtime for three months over that article. Now, he's out entirely.
MLB Network has cut ties with insider Ken Rosenthal in what is believed to be the end result of acrimony that peaked in the summer of 2020 after Rosenthal criticized commissioner Rob Manfred, The Post has learned. Rosenthal, 59, remains at Fox Sports, where he is a fixture on its weekly coverage and is a dugout reporter for its top games, including the World Series. He also will continue at The Athletic.
What is interesting is that at least one of Rosenthal's colleagues at The Athletic has been making the rounds on local sports talk radio pointing out that the piece critical of Manfred had barely any legs at all. It survived something like a day or two in a busy news cycle and very few people paid it much attention. Aside from Manfred, of course, who, those same colleagues at The Athletic are also insisting, did all of this to Rosenthal personally due to skin so thin it's nearly translucent.
In June 2020, Rosenthal’s analysis of Manfred for The Athletic featured some light criticism, but it didn’t appear to delve into anything personal. In one piece, Rosenthal wrote, “As if the perception that Manfred is beholden to owners and out of touch with players was not bad enough, he was trending on Twitter on Monday after performing a massive flip-flop.” Since then, Rosenthal’s role was slightly diminished at the network. Now, he’s out entirely.
And now that story is getting far more burn than it did initially. Streisand Effect. Also, Rosenthal has plenty of outlets to continue to criticize Manfred and MLB, whether it's at The Athletic or on Fox Sports.And the MLB Network has lost at least some of its credibility. For years, it has worked to build itself up as a credible news venture -- even as it was owned by the league -- and seemed to try to bend over backwards to demonstrate the independence of its reporting from the league's own direct interests. But now all of that is shot. This is playing the short game rather than the long game, opting to punish someone critical without understanding that having critics on staff gave MLB Network far more credibility than it has now.
Excited delirium isn't a medical condition. It's just post-death rationalization that shifts the culpability for deaths at the hands of law enforcement to the corpses the cops created. This supposed medical diagnosis didn't reach critical mass until the introduction of one of the most infamous "less-lethal" weapons ever created: the Taser.Taser is a cattle prod for humans. But it has never been extensively tested on humans for obvious reasons: it has the capacity to be lethal. Taser has since rebranded as Axon, but its legacy lives on. And some of that legacy is the mainstream law enforcement adoption of "excited delirium" as the x factor in officer-involved killings that involve multiple or prolonged deployments of Taser's modified stun gun.Taser may have distanced itself from its only-slightly-less-lethal weapon, but there's no escaping the death toll. And there's no escaping Taser's culpability in these deaths -- a company that has lawyered itself up to the teeth and hired a shitload of medical experts to find any other reason than the most obvious for deaths in custody. Let's not forget what inspired Taser and (kind of) gave it its product name: Tom Swift and His Electric Rifle, a young adult novel that featured a main character who carried a weapon that was anything but "less lethal."
Of foremost notice is Swift's invention of the electric rifle, a gun which fires bolts of electricity. The electric rifle can be calibrated to different levels of range, intensity and lethality; it can shoot through solid walls without leaving a hole, and is powerful enough to kill a rampaging whale, as in their steamer trek to Africa. With the electric rifle, Tom and friends bring down elephants, rhinoceroses, and buffalo, and save their lives several times in pitched battle with the red pygmies. It also can discharge a globe of light that was described as being able to maintain itself, like ball lightning, making hunting at night much safer in the dark of Africa.
"Pitched battles with red pygmies." "Making hunting ... safer in the dark of Africa." Hmm. Problematic, to say the least. From those beginnings flows a marketing wing that got this weapon in the hands of law enforcement all over the world -- one that had the capacity to kill but was sold as "less than lethal." This marketing led cops to believe it could be deployed as often or as long as possible without killing people. But it did kill people, and when it did, Taser sent lawyers, NDAs, and its own medical experts to combat lawsuits against law enforcement officers.Its lawyers and medical experts arrived in court with the novel theory that "excited delirium" had actually caused these deaths. The experts pointed to problems officers encountered subduing people and made the most of any illegal substances found in the systems of victims of police violence.Years after the damage has been done, things may be changing. There's enough criticism of the "excited delirium" medical theory -- one not accepted by most medical regulation and oversight boards -- that police oversight entities are starting to push back. In Minneapolis, Minnesota -- ground zero for the latest nationwide protests against police brutality -- a police oversight board has stated its unwillingness to allow officers to continue blaming police violence victims for their own deaths.This is notable because Tasers weren't involved in the murder of unarmed black man George Floyd (suspected of nothing more than passing a counterfeit $20 bill) by police officer Derek Chauvin. The killing here was committed by Officer Chauvin, who placed his knee on the neck of the black man in perhaps the most unsubtle depiction of systemic police racism engaged in by a cop. He did this for more than nine minutes -- and for more than three minutes after another officer failed to detect a pulse.The excited delirium theory was in play as Chauvin defended himself in court. His lawyer suggested this unrecognized "medical condition" contributed more to Floyd's death than the asphyxiation caused by the officer's knee to his neck. This faux medical condition has also been used by Minneapolis cops to suggest the use of ketamine by EMS responders -- a tactic that has led to even morein-custody deaths.The Minneapolis Police Conduct Oversight Commission -- with input from the medical community -- is strongly suggesting the PD walk away from this oft-abused excuse for in-custody deaths, citing both its questionable history as a medical condition as well as its tendency to be deployed to excuse the killing of minorities.
A Minneapolis police oversight board has recommended the police department replace what the board calls “outdated training” about excited delirium, a controversial medical diagnosis that police say can give people “superhuman” strength.The diagnosis has not been recognized by the American Medical Association, the American Psychiatric Association or World Health Organization, but has been widely used by police to justify force and explain deaths of people in custody.[...]Abigail Cerra, chair of the PCOC, wrote to Mayor Jacob Frey and Police Chief Medaria Arradondo recommending that MPD re-educate officers on the issue, especially given the city will be hiring more than 100 police officers in 2022.
Good. And this request should receive no pushback from the Minneapolis Police Department. I mean, it probably will but the PD and the medical professionals contributing to the PD's training have already disavowed use of this "diagnosis."
Dr. Nicholas Simpson, chief medical director at Hennepin EMS, told the Minneapolis Police Conduct Oversight Commission earlier this month that Hennepin EMS and the Minnesota Department of Human Services are no longer using “excited delirium” in their practice and education. Hennepin EMS physicians have been revising medical training materials for law enforcement officers, including the Minneapolis Police Department.
According to the mayor, the PD has removed "excited delirium" training from officer education courses. If true, then the PCOC's request will be adopted without argument. If untrue, the PD will start pushing back. Documents posted by the PCOC include "excited delirium" training presentations -- documents the Minneapolis PD has yet to confirm have been removed from its training programs.Let's hope they have. The presentations argue that "excited delirium" sufferers -- ones most often diagnosed after being declared dead following interactions with police officers -- have both "superhuman strength" and the tendency to die at the drop of a Taser/knee. The sooner cops stop pretending "excited delirium" is nothing more than a convenient post-facto justification for unjustified deadly force, the sooner more people with start surviving their "interactions" with law enforcement.
We have long chronicled the aggressive IP enforcement tactics and behavior of video game giant Nintendo. There have been so many stories specifically about Nintendo's animosity towards its fans when those fans express their fandom by creating fan-games that any regular reader here will be familiar with at leastsome of them. While gaming company responses towards fan-games are certainly more of a spectrum than something black and white, Nintendo probably takes the crown for the least permissive gaming company for this sort of thing. So much so, in fact, that we highlighted its former chief rival, Sega, when it took the opposite tact with folks making Sonic the Hedgehog fan-games.Well, someone out there took the time to create a parody news article about Sega doing a heel-turn on this in a way that seems mostly dedicated to skewering Nintendo for its aggressive, anti-fan behavior. The headline for the comedy post is, appropriately, "Sega Announces They Will Be Using Fan-Game Creators To Develop New Sonic Lawsuit."Let's dive in.
Sega announced today that, after a down-period of creativity in its staple Sonic franchise, the company will be reaching out to fan game developers to create new and exciting lawsuits.“For years, people have said that Sega’s Sonic games lack that magic from the original games, while fan games have become impressive standalone titles,” said Sonic team leader Takashi Iizuka. “We worked with fans to make Sonic Mania and then everybody was all like ‘oh I guess the fans are better than Sega at making their own game,’ so now we’re switching up the strategy, because fuck you guys. From now on, we have to go full Nintendo and sue these fuckers for every single penny they’ve got. These people have spent their own time and money creating beautiful, loving tributes to Sonic games, and they thought they could just get away with it. Sonic Team is honored to take these longtime fans, some of them even just kids, and drag them kicking and screaming behind bars where they belong.”
"Go full Nintendo." Sega and Nintendo have taken starkly different paths interacting with their most dedicated fans and this fictional post is essentially poking fun at the latter by satirizing what it would look like if Sega got aggressive. More to the point, it does a useful job of pointing out, given that all of this is not true and done for comedic purposes, that Nintendo could exert less control and allow its fans to express themselves if it wanted to. If Sega can do it, so can Nintendo.But Nintendo doesn't want to do this. It values strict IP control over everything else, even as many argue doing so is against its own monetary interests.Go to the link for one fun fictional comment from a Sega fan being put into the back of a squad car, but I couldn't let this post be written without including the final paragraph from the post, because it's just so, so good.
Despite the lawsuit, Sega admitted they were incredibly thankful for the fan designer's unique, exciting ideas for Sonic games that they could completely ignore for the next decade. They then announced their new game Werewolf Sonic 2: Sorry, Fuckers will be arriving in 2023.
While this is all quite funny, it's also frustrating trying to understand why in the world Nintendo is willing to endure being the butt of these particular jokes, not to mention the negative aspects of its reputation, just because it wants to squash its own fanbase. In nearly all cases, the company gains nothing and loses at least some measure of goodwill and respect. Put another way, if you took this parody article and replaced every reference to Sega with Nintendo, it wouldn't be that far off from reality.Why a beloved gaming company wants that for itself is an open question.
What happens when you add a bored cop to a cold case? Bad things. Very bad things. That's the moral of the story conveyed by this Seventh Circuit Appeals Court decision [PDF].Actually, calling it a decision is overstating the conclusions. Apparently, the plaintiff, the defendants, and the lower court all made matters far more confusing than they needed to be, leaving the Appeals Court with a muddied record, unclear assertions from all parties, and open questions as to whether qualified immunity on Fourth Amendment claims had actually been denied.But the path to the procedural shitshow is a full-blown horror show. An unfortunate death, a full autopsy, no sign of foul play, and yet some officer put out to pasture by his department decided he was the second coming of Columbo and mounted a concerted attempt to ruin a person's life.Curt Lovelace's wife, Cory, died in her bed one morning while Curt was getting their children ready for school. Almost any death in a person's home will trigger an investigation. This tragedy was no exception.
Because Cory was relatively young when she died, the City of Quincy police, along with several Adams County officials, conducted a thorough investigation of her demise. All the physical evidence pointed toward a natural cause of death. It turned out that Cory was severely alcoholic, bulimic, and had been sick with flu-like symptoms for several days before she died. An autopsy revealed that Cory had been suffering from “marked steatosis of the liver.” Severe steatosis—significant fat throughout the liver—can cause the liver to become inflamed and riddled with scar tissue; at that point the person has cirrhosis of the liver, which can lead to liver failure and death. This evidence could not establish a single, indisputable cause of death, but it was more than enough to suggest an array of plausible natural explanations—chronic alcoholism, when combined with other medical conditions, can itself be fatal. Moreover, Cory’s body bore no signs of violent trauma. She had a small patch of redness under her nose, but it was more consistent with a cold or acne than with violence. And she had a small cut inside her mouth, but because it was already healing when Cory died, it was determined to have predated her death.
Curt's accounting of the events was corroborated by his children.
Investigators also verified Curt’s account of the morning in question by comparing his story to the physical evidence indicating time of death. Curt recounted that Cory was supposed to take their three school-aged children to school that day, as Curt was scheduled to teach a class at a local university. But Cory was still unwell when she woke up. They decided that Curt would cancel his class and take their children to school instead. At one point Cory came downstairs to help get the children ready, but she was feeling very weak, and so Curt helped her back upstairs and into bed. Curt then took the children to school at around 8:15 am. He was back at the house by 8:35 am, but he did not go upstairs until around 9 am, when he discovered that Cory had died. The police interviewed Curt’s three oldest children; all three corroborated this timeline. In particular, all three confirmed that they had seen their mother alive and moving about on the morning in question.
The autopsy, as noted above, saw no evidence of foul play. There was a question raised about the level of rigor mortis observed by the doctor performing the autopsy, but responders to the scene saw nothing out of the ordinary, noting the body was still warm, pliable, and displaying a minimum amount of lividity. An EMS attendant was able to raise Cory's arms to a position above her heart so he could attempt to revive her. Her arms remained in the position the EMS tech had moved them to as rigor mortis set in. The investigation was closed shortly thereafter with law enforcement concluding this was a tragic death, not a homicide.For most of a decade, the case remained closed. But then a cop with too much time on his hands turned his idle hands into the devil's cold case unit.
There the story should have ended. But seven years later, Detective Gibson set in motion a second act. Formerly one of the Quincy police department’s canine officers, Gibson had been reassigned to elder services after his dog retired. But the new role did not keep him busy, it seems, and so to pass the time he made a habit of reviewing files from old cases. One photo of Cory’s body in the Lovelace file caught Gibson’s attention in November 2013. In it, her arms were raised in what appeared to Gibson to be an unnatural position. He concluded that Curt had suffocated Cory with a pillow the evening before her death was reported, that rigor had set in overnight, and that her arms had stayed put when the pillow was removed sometime the next morning. This was, as we already have noted, wild speculation; Gibson was simply looking at photos that were taken after [the EMS tech had] repositioned Cory’s arms.
Unfortunately, the Quincy PD did not tell the detective to get back to his real work and stop trying to turn closed investigations into ongoing investigations. Detective Gibson managed to rope in a coroner who had spent a few minutes at the home moving Cory's body. Coroner Keller -- years after the fact and prompted by Detective Gibson's enthusiasm for refusing to leave the past unmolested -- made a number of claims supportive of the detective's murder theory.
[Keller] claimed, apparently without notes or other corroboration, to recall that Cory’s body had been in full, not partial, rigor, and that the room had smelled bad, as if her body had already begun to decompose. Those claims, if true, would have supported Gibson’s alternate timeline and contradicted Curt’s account. But no other eyewitness, including several who had spent far more time on the scene than Keller, had reported a similar degree of rigor or mentioned any strong odor. Moreover, Keller made no effort to explain how someone could have moved Cory’s arms if Keller was correct.
Detective Gibson and his coroner co-conspiracist discarded everything that didn't agree with the "Curt killed Cory" theory. They began shopping this narrative around to other medical examiners, hoping to obtain an autopsy report that turned the grieving husband into his wife's murderer.
They started in early January 2014 with Dr. Derrick Pounder. But after hearing Gibson’s theory, Dr. Pounder explained in an email that “rigor is not a reliable method of estimating time of death.” And he advised Gibson that Cory could have spoken to her children that morning, just as Curt claimed, and then been dead with her arms at some stage of rigor 90 minutes later. Gibson did not write up a report memorializing Dr. Pounder’s conclusions.In late January, Gibson and Keller consulted Dr. Scott Denton. Like the original investigators, Dr. Denton quickly dismissed the redness above the lip and small cut in the mouth as irrelevant. And he, too, homed in on the liver as the most likely cause of death. In February, Gibson met with Dr. Denton in person, but again he made no record of Dr. Denton’s opinions. Nor did Dr. Denton himself submit any report at the time.
They also went back to the person who had performed the original autopsy and tried to get her to change her mind about the cause of death. This effort failed. So did their fourth attempt to secure a medical report in their favor from Dr. Shaku Teas. Teas not only agreed with the other medical experts the pair had approached, but was so troubled by Detective Gibson's actions, she testified on behalf of Curt Lovelace during his trial.Fifth time was the charm.
Gibson and Keller’s fifth and final attempt to secure a favorable expert opinion took place in April and May, when they presented the case to Dr. Jane Turner. That time, they took a more aggressive approach. Rather than providing Dr. Turner with an accurate and complete picture of the evidence and allowing her to draw her own conclusions, they provided her with selected background “facts.” They told Dr. Turner that Cory was in full rigor before the paramedics arrived (not mentioning that this was at least disputed), told her about the minor injuries to Cory’s lip and mouth but omitted any mention of the benign explanations for those injuries, and falsely suggested that another expert—Dr. Denton—had already all but confirmed the suffocation theory. Most damningly, they told Dr. Turner about the position of Cory’s arms, but not that the arms had been repositioned by the paramedics. Dr. Turner, making it clear that her conclusions rested solely on the information that had been presented to her, prepared a report supporting the suffocation hypothesis.
Using this, Detective Gibson had Curt Lovelace arrested. Lovelace was incarcerated for 21 months because he was unable to make bail. His first trial ended with a mistrial because of a hung jury. Prosecutors went after Lovelace again, but he was more prepared for the second trial. Documents obtained through FOIA requests uncovered a lot of Detective Gibson's attempts to build a murder case out of a previously undisputed natural death. This time around, a jury acquitted Lovelace after two hours of deliberation.The lawsuit followed. Unfortunately for Curt Lovelace, he might not be able to hold Detective Gibson and his coroner buddy liable for wrecking his life. There are questions about whether or not Fourth Amendment claims were preserved for appeal. There are also questions as to whether the lower court has even made a decision on the qualified immunity the defendants are seeking. A lot of this mess will return to the lower court to get sorted out, which means there's still a chance the detective and the coroner will be able to utilize qualified immunity to have the case tossed.There's a credible Fourteenth Amendment claim that survives completely intact, though. This appears to have been argued somewhat poorly at the lower level, but the Appeals Court says there are enough facts in dispute that the lower court should not have awarded qualified immunity on that count. That's reversed, which means both claims will hopefully be handed over to a jury to sort out just how badly these government employees fucked over Curt Lovelace and how much it should cost them. But that also means any closure -- much less compensation -- is still probably years away for the man one cop decided might be a murderer.
Roblox also gives players access to a robust set of creation tools, allowing users to create and craft their own experiences, as well as enjoy those created by others. A surge in users during the COVID-19 pandemic created problems Roblox’s automated moderation systems — as well as its human moderators — are still attempting to solve. Roblox employs 1,600 human moderators who not only handle content flowing through in-game chat features but content created and shared with other users utilizing Roblox’s creation tools. Users embraced the creation tools, some in healthier ways than others. If it happened in the real world, someone will try to approximate it online. Users have used a kid-focused game to create virtual red light districts where players can gather to engage in simulated sex with other players — an activity that tends to avoid moderation by utilizing out-of-game chat platforms like Discord to provide direct links to this content. Perhaps more disturbingly, players are recreating mass shootings — many of them containing a racial element — inside the game, and inviting players to step into the shoes of mass murderers. Anti-Defamation League researcher Daniel Kelley was easily able to find recreations of the Christchurch Mosque shooting that occurred in New Zealand in 2019. While Roblox proactively polices the platform for “terrorist content,” the continual resurfacing of content like this remains a problem without an immediate solution. As Russell Brandom of The Verge points out, 40 million daily users generate more content than can be manually-reviewed by human moderators. And the use of a keyword blocklist would result in users being unable to discuss (or recreate) the New Zealand town.
How does catering to a younger user base affect moderation efforts?
What steps can be taken to limit access to or creation of content when users utilize communication channels the company cannot directly monitor?
What measures can be put in place to limit unintentional interaction with potentially harmful content by younger users? What tools can be used to curate content to provide “safer” areas for younger users to explore and interact with?
How should companies respond to users who wish to discuss or otherwise interact with each other with content that involves newsworthy, but violent, events?
How much can a more robust reporting process ease the load on human and AI moderation?
Can direct monitoring of users and their interactions create additional legal risks when most users are minors? How can companies whose user bases are mostly children address potential legal risks while still giving users freedom to create and communicate on the platform?
What's unreasonable for law enforcement to do when searching for a criminal suspect? Not much, apparently. The Eighth Circuit Appeals Court has handed down a ruling that says detaining minors at gunpoint is just good policework when they're in the general vicinity of a suspected criminal act. (via FourthAmendment.com)Here's what prompted this apparently excusable violation of rights, taken from the Appeals Court decision [PDF]:
At 3:21 p.m. on April 24, 2016, a Cedar Rapids police dispatcher issued an alert for “a disturbance with a weapon” at “Higley Avenue and Wellington Street” based on a 911 call from a complainant named Elaine. It is undisputed that the dispatch transmitted to officers reported, “Complainant stated that there are three black males they live at the corner house by the alley. They are outside arguing, one displayed a 10-32 [gun] that subject is a black male white t-shirt heavier set. Another black male is in all blue.” There was no description of the third individual, nor did the dispatcher provide the complainant’s name or address.
This information was obtained by the officers being sued twice. While driving to the scene of the reported crime, Officer Tyler Richardson ran into the 911 caller (although he did not know this at the time). The woman again described the suspected individuals, describing one of the suspects as wearing a white shirt and blue pants.So, Officer Richardson had two suspects: one with a white t-shirt and another described alternately as being in "all blue" or with a white shirt and blue pants. Here's who the officer decided were the most likely suspects:
He saw two people -- later identified as Bates and Irvin -- walking away from him along the left side of the street. The dashcam video shows Bates wearing a red shirt and black pants and Irvin wearing a blue shirt and blue pants.
This is what happened next:
Officer Richardson got out of his car and yelled, “Stop. Stop.” Irvin and Bates turned their heads, then stopped. Richardson said, “Yeah, you guys.” Bates replied, “No, we didn’t do nothing.” Richardson yelled, “Stop right now! Stop!” and drew his gun, pointed it at Irvin and Bates, and ordered them to get on the ground. Officer Jupin, whose squad car had arrived from the opposite direction, drew his gun and did the same. Irvin and Bates slowly got down on their knees. Richardson yelled, “Face down!” Richardson handcuffed Irvin. Jupin handcuffed Bates. A pat-down determined that neither was armed.Handcuffed and seated on the ground, 16-year-old Irvin remained quiet. Bates, 33 years old, became agitated, speaking loudly and expressing anger that the officers had pulled their guns on him. Jupin stayed with Irvin and Bates while Richardson went a block away and talked to a heavyset black man in a white t-shirt the officers spotted while detaining Irvin and Bates. Richardson ordered the man to stop and put his hands on a stone wall next to the sidewalk. The man complied. Richardson patted him down for weapons, found none, and soon released him.
The pair remained handcuffed for twelve minutes as officers spoke to the witness. The witness confirmed they were not the ones she had seen involved in an altercation earlier. They were released.The Eighth Circuit says there's nothing wrong with this. As far as the court sees it, cops should be able to stop nearly anybody when a crime has been reported nearby.
It is well established that, “if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.” United States v. Hensley, 469 U.S. 221, 229 (1985). Thus, Irvin and Bates could be stopped if there was reasonable suspicion that either or both were any of the three men involved in the reported disturbance.Second, even limiting our focus to more serious gun offenses, Officer Richardson had descriptions of two of the three men. Irvin arguably fit one of the descriptions; Bates did not but the third participant had not been described.
That's the rule in the Eighth Circuit: if you're in the area a crime has been committed, you can be treated like a suspect and detained for as long as it takes to clear you of suspicion. In this case, it only took twelve minutes. But it could have taken longer. And, as this court sees it, time isn't a factor when it comes to turning being detained into being arrested. If it had taken six hours, the court may have still considered this to be an investigative stop.
Here, Officers Richardson and Jupin actively investigated the disturbance after detaining Irvin and Bates, delayed by their refusal to cooperate. When backup arrived, Richardson interviewed a cooperative third individual and searched the area for a weapon. Jupin contacted a witness, who said that Irvin and Bates were not involved in the reported disturbance. Jupin promptly removed the handcuffs and told Irvin and Bates they were free to go, ending their detention. The entire encounter lasted approximately 13 minutes. We agree with the district court that Irvin and Bates “were detained no longer than was necessary for the officers to pursue their investigation” and therefore the lawful Terry stop “did not evolve into an arrest.”
So, what's the endpoint? The court says this:
The circumstances here are readily distinguishable from the handcuffing and extended -9- detention in our recent, divided panel opinion in Haynes v. Minnehan…
But that decision held that a five minute detention was unlawful due to a lack of reasonable suspicion and the fact that officers didn't appear too interested in investigating the alleged crime. That doesn't clear much up. Instead, it creates a gray area where officers can detain someone indefinitely, so long as they have a little suspicion and some interest in pursuing an investigation.The decision also cites another case where the Eighth Circuit found it acceptable to point guns at unarmed minors just because a criminal act was suspected to have occurred somewhere in the vicinity. That case is currently sitting before the Supreme Court. Whether or not the nation's top court will do anything with it remains to be seen. But that case, summarized here by Jacob Sullum for Reason, is used as justification for the conclusion reached in this case.
On a rainy January evening in 2018, 14-year-old Weston Young and his 12-year-old brother, Haden, were walking home from their grandparents' house in Springdale, Arkansas, after a family dinner. A police officer ordered them to stop, pointed a gun at them, forced them to lie on the ground, handcuffed them, and, together with a colleague, searched them. Their mother and stepfather tried to intervene, explaining who the boys were, where they had been, and where they were going. But the officer, Lamont Marzolf, rebuffed both of them, seemingly uninterested in information suggesting that he was treating two innocent boys like criminals."Neither [Weston] nor [Haden] did anything wrong" that night, the U.S. Court of Appeals for the 8th Circuit later observed. "The boys simply happened onto the stage of a dangerous live drama being played out in their neighborhood because of criminals fleeing police nearby. [Weston] and [Haden] acted bravely, respectfully, and responsibly throughout the encounter, and their family would rightly be proud of them. Likewise, their family acted responsibly and respectfully during what would have undoubtedly been a frightening experience. In this situation, though, Officer Marzolf was doing his job protecting the people of Springdale from fleeing criminal suspects under challenging conditions."
That's the standard as far as the Eighth Circuit is concerned. If a cop is doing their job, then pointing guns at minors and violating rights is just acceptable collateral damage. The decision here rests on the court's conclusion there was plenty of reasonable suspicion underlying this chain of events. The dissent is not so sure.
Viewing the record in the light most favorable to Irvin and Bates, Officers Richardson and Jupin lacked reasonable suspicion to stop and detain them. The dispatcher relayed an anonymous 911 call, but did not provide any information indicating the basis of the caller’s knowledge. The only corroboration identified is the information Officer Richardson received from the woman on the street. But at the time of the stop, Officer Richardson did not know the woman’s name or even that she was the 911 caller. Moreover, the woman did not corroborate the dispatcher’s report or report any criminal activity; she simply gave Officer Richardson a description of what a person who had just walked around the corner was wearing—wavering in her description and never mentioning a person in a red shirt—and said nothing more. In short, nothing the woman said to Officer Richardson linked the person she had just described to the conduct reported in the 911 call.Even setting aside the reliability of the tip, neither Bates nor Irvin matched the description of the person who displayed the firearm—a heavyset man in a white t-shirt.
The dissent points out it's not enough for race and gender to match the description. And without any further corroboration, Officer Richardson had, at best, conflicting descriptions of the suspects. On top of that, Richardson had no reason to believe they were involved in the reported criminal act. The caller had reported only one person with a weapon and that description matched neither of the two people Richardson detained at gunpoint.
The only suspicious activity the 911 caller described was that a heavyset man in a white t-shirt displayed a gun. There was no reason to believe any other person had a weapon, concealed or not, and a suspicion otherwise was nothing more than a hunch. While the 911 caller reported an argument where one man displayed a gun, she reported no threats, assaults, or shots fired. And when Officer Richardson turned the corner, the reported crime had ended, and neither Irvin nor Bates was behaving in a manner as to indicate they were armed or were engaged in––or about to engage in—criminal activity.
Making someone a suspect because someone else brandished a weapon isn't how reasonable suspicion works. Citing another case where qualified immunity was awarded despite the "suspects" not matching the description and being accused of "fleeing" despite walking towards the police officer's car doesn't exactly shore up the shaky reasoning underpinning this decision.This decision will also likely be appealed to the Supreme Court. The earlier case might be a better fit for reversal, given the disparity between the detainees and the description, but both are questionable. And both serve as cover for bad judgment calls by police officers -- ones that culminate with weapons being pointed at minors.
It isn't news that China has begun a campaign against video games within its borders. The battles in this war are being waged on a couple different fronts. In 2021, Beijing set new rules for what youths can play when it comes to games, as well as a strict schedule for when they can play them. This birthed an underground economy for account sharing to get around those rules, but the rules still had some effect. Chinese regulators also have exerted strict control over what foreign games are available in online stores, while those same regulators strictly control what games gain approval for release from within. This all seems to be some sort of legislative stream of consciousness from President Xi Jinping's belief that video games are somehow massively harmful and addictive to children.So what has the impact of all of this regulatory warfare produced? Well, according the South China Morning Post, no less than 14,000 shuttered gaming businesses within China itself.
China’s freeze on video game licenses continues. South China Morning Post notes that the National Press and Publication Administration (NPPA) has not released a list of newly approved titles since July 2021. Because of this, state-run newspaper Securities Daily reports, approximately 14,000 small game studios and video game connection companies, including those involved in merchandising or publishing, have gone under.Typically, the NPPA approves around 80 to 100 games a month, so the lack of an approved list has ground part of the industry to a halt. China is such a massive market, and the hiatus has caused uncertainty that has led to layoffs at game companies, and conglomerates with game divisions. However, it sounds like the smaller outfits have been hit the hardest.
This is almost always the story when it comes to heavy-handed government regulations over an industry. The big players have the war chest and know-how to work within the regulatory system, while the small or up-and-coming companies simply fold under pressure. In this case, many of the larger gaming companies have diversified into off-shore presence in order to weather the storms from Beijing. Smaller companies don't have the ability to do likewise.And, in typical Beijing form, this freeze on approving new licenses to release games is being conducted with zero transparency.
No reason has been given for the hiatus, and the NPPA hasn’t stated when approvals will restart. Prior to this latest freeze, the longest period that new game licenses were not released was a nine-month window in 2018.
All of this coincides with China's larger culture war, which has seen the government engage in control tactics as silly as regulating karaoke playlists to the far more serious destruction of democracy in Hong Kong. This means that the Chinese government is coming off less like a socialist nation and more akin to something like the Taliban, where strict control over culture is seen as some kind of spiritual requirement.Regardless, it must be a very bad time to be a game creator in China.
A year ago, Techdirt wrote about an important lawsuit in India, brought by the academic publishers Elsevier, Wiley, and the American Chemical Society against Sci-Hub and the similar Libgen. A couple of factors make this particular legal action different from previous attempts to shut down these sites. First, an Indian court ruled in 2016 that photocopying textbooks for educational purposes is fair use; the parallels with SciHub, which provides free access to copies of academic papers for students and researchers who might not otherwise be able to afford the high subscription fees, are clear. Secondly, the person behind Sci-Hub, Alexandra Elbakyan, is fighting, rather than ignoring, the case, as she has done on previous occasions.One manifestation of her new pro-active approach is a tweet she posted recently. It included a screenshot of an email she wrote to Nature magazine, which had contacted her about a forthcoming article on the Indian court case. Following standard practice, the journalist writing the article, Holly Else, asked Elbakyan to comment on some of the accusations the academic publishers had made against Sci-Hub. Her responses are fascinating, not least because they provide Elbakyan's perspective on several important issues.For example, according to the publishers' comments as transmitted by Else, "Pirate sites like Sci-Hub threaten the integrity of the scientific record, and the safety of university and personal data". In reply, Elbakyan points out Sci-Hub is unique, and the use of the phrase "Pirate sites like Sci-Hub" is a clever attempt to lump Sci-Hub in with quite different sites, thus prejudging the legality of its activities. Elbakyan says that it's academic publishers -- not Sci-Hub -- which threaten the progress of science:
open communication is [a] fundamental property of science and it makes scientific progress possible. Paywalled access prevents this and is a great threat to science. Also the great threat is also when the whole scientific knowledge became the private property of some corporation such as Elsevier, that has full control of it. That is the threat, not Sci-Hub.
Elbakyan points out that Sci-Hub doesn't threaten the "integrity of the scientific record", since she simply disseminates copies of the academic papers without changing them in any way. But perhaps the most interesting part of her reply concerns the accusation that Sci-Hub threatens the safety of university and personal data. Techdirt has written previously about claims that Elbakyan allegedly has links to Russian intelligence, and that Sci-Hub is some kind of security risk. According to Else, the publishers assert:
Pirate sites like Sci-Hub compromise the security of libraries and higher education institutions to gain unauthorized access to scientific databases and other proprietary intellectual property, and illegally harvest journal articles and e-books.Sci-Hub uses stolen user credentials and phishing attack to extract copyrighted articles illegally
These are serious allegations, and ones that have been made several times in the past. Elbakyan's response is probably the first time that she has addressed them directly:
Do they have any actual case when Sci-Hub somehow compromised the security of any library or a person? Any person that complained about credentials that were 'stolen' from them? Or is it again, nothing more than empty accusations. Nobody is complaining about 'compromised security' except academic publishers.
In other words, it is time for Elbakyan's accusers to put up or shut up. She concludes by stating that "Any law against knowledge is fundamentally unjust", and hopes that "Nature will have enough honesty to publish my comments in full.It didn't, of course.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.
For the second time in about as many weeks, an appeals court has handed down a decision denying qualified immunity to a government employee. That's good! We don't see a lot of these. Getting more than one in a month almost feels excessive, as if we're being set up by the courts for a few months of anger and disappointment to offset this judicial largesse.Offsetting this unexpected goodwill towards the appellate courts in general is this fact: both cases also involve what should unquestionably be obvious violations of rights. Both cases involve fabricated evidence.The one recently handled by the Third Circuit alleged officers hid evidence that would have cleared a man falsely accused of murder… and they, along with the prosecutor, kept this information from the imprisoned man for 25 years. Truly obscene and truly a blindingly obvious violation of rights, as the court noted:
We conclude that the constitutional rule that framing criminal defendants through use of fabricated evidence, including false or perjured testimony, violates their constitutional rights applies with such obvious clarity that it is unreasonable for us to conclude anything other than that the detectives were on sufficient notice that their fabrication of evidence violated clearly established law.
When you're that awful, courts don't need a case directly on point to deny you immunity.The same goes for Marcia Tuggle, a caseworker for the Alamosa (CO) Department of Human Services. While investigating suspected child abuse after a doctor diagnosed a two year old child with serious brain injuries, she accompanied police officers to interviews with suspects. The child was in the care of Patrick Ramirez at the time the injury was discovered, left there by his mother. The child died two months later and police opened an investigation.They first interviewed Ramirez who told police he was carrying the child when he fell. The officer and the social worker also interviewed the boy's biological mother, Krystal O'Connell. Here's how that went down, according to the Tenth Circuit Appeals Court decision [PDF]. (h/t Volokh Conspiracy)
Sergeant Alejo first interviewed Ms. O’Connell without anyone else in the room. Later the same day, Sergeant Alejo and Ms. Tuggle conducted a joint interview of Ms. O’Connell. According to Ms. O’Connell, Sergeant Alejo hurled accusations while Ms. Tuggle watched. Ms. Tuggle noted the responses, stating that Ms. O’Connell had admitted shaking Kyran and slamming him on the bed. Ms. O’Connell denied saying this and presented evidence that Ms. Tuggle had fabricated the confession
O'Connell was convicted of child abuse. Her conviction was overturned in 2017. This lawsuit followed.Unbelievably, the social worker argued she should be granted qualified immunity because there was no prior case law that would have made her aware that fabricating a confession and handing it over to be used during the investigation and prosecution of O'Connell was a violation of her rights.Alternately, she argued she wasn't actually at fault at all because her notes were for her own social services investigation, not the criminal investigation that ended in O'Connell's conviction. Wrong on both counts, says the Tenth Circuit.
From Ms. Tuggle’s own testimony, the existence of an ongoing criminal investigation would have been obvious. And Ms. Tuggle’s own notes reflect Ms. O’Connell’s confession to the crime of child abuse. From the existence of the criminal investigation and the confession of child abuse, Ms. Tuggle recognized that her office would need to share her notes with the sheriff’s office.So under Ms. O’Connell’s version of events, Ms. Tuggle obviously knew—when she fabricated the confession—that her fabricated report would go to the sheriff’s office to advance the criminal investigation. Given that knowledge, any reasonable social worker in Ms. Tuggle’s position would have known that lying about a confession would contribute to the prosecution of Ms. O’Connell for child abuse.
The rights violation is so obvious there's no need to find exact precedent.
Given that knowledge, Ms. O’Connell’s version of events would create an obvious denial of due process. We thus affirm the denial of summary judgment to Ms. Tuggle.
Equally unbelievably, there's a dissent -- written by Judge Mary Beck Briscoe -- that argues the social worker should be granted immunity because she had no way of knowing fabricating a confession would violate someone's rights.
When considered in the factual context of this case, I find no clearly applicable Tenth Circuit or Supreme Court case law that would have alerted Defendant that her actions would violate the constitutional rights Plaintiff now asserts.
As to the cases cited by the plaintiffs, the dissenting judge says this:
None of those cases would have provided a reasonable social worker in Defendant’s position with fair notice that fabricating a social services report violates constitutional rights related to a criminal investigation. Franks and Pierce do not describe similarly situated officials. Those cases described law enforcement officers or those working for law enforcement for the purpose of investigating crimes. Here, Defendant was a social worker responsible for drafting a social services report. To be sure, Sergeant Alejo was present during Defendant’s interview with Plaintiff, and Defendant was likely aware of a potential criminal prosecution. The mere presence of a law enforcement officer, however, is clearly dissimilar from a forensic scientist investigating crime scene evidence while employed by the police department and knowing full well the evidentiary purpose and importance of her report. Thus, Defendant lacked fair notice that the holdings of Franks or Pierce would apply to a social worker in her position.
But why should someone need "fair notice" they can't -- as government employees with the power to deprive people of their liberties -- falsify confessions? Who knows, but Judge Briscoe believes this social worker shouldn't be held accountable for her inexcusable actions simply because no other social worker in a similar situation had done anything equivalently awful prior to the Tenth Circuit taking up this appeal.Do you need another reason to hate the doctrine of qualified immunity? Judge Briscoe supplies one. [Emphasis in the original.]
As the district court observed, “common sense” should have informed Defendant that “a social worker, like any other public official, cannot knowingly create false information in furtherance of an investigation.” Yet, neither common sense nor our prior case law would have informed Defendant that she could not do so for constitutional reasons, as opposed to some general, moral reason. And in determining whether Defendant is entitled to qualified immunity, we must look to the constitutionality of Defendant’s actions.
Thanks to qualified immunity, government employees can engage in actions that are morally or even criminally wrong and expect to get away with it simply because no court previously declared similar immoral or criminal acts constitutional violations. So, it's basically the honor system but for people who don't have any.People who aren't government employees can't escape lawsuits when they fuck up someone's life enough that they get sued for it by telling the court there's no precedent directly correlating to their fuckery. But government employees can do this, which means those we expect to see held to a higher standard frequently aren't -- not by their supervisors, not by the agencies they work for, and in far too many cases, not by this nation's courts.
Happy new year, everyone! You know what time it is — time for our round-up of the top comments from all of 2021, based on user votes for Insightful and Funny. Plus, unlike past years where we featured a few outliers from the leaderboard of combined votes in both categories, this year there was absolutely no overlap for the second time — so we'll be including all three of the comments from overall votes as well. Meanwhile, if you want to see this week's winners, here's first and second place for insightful, and first and second place for funny.The Most Insightful Comments Of 2021For our first place winner, we head back a few months to September, when GoDaddy reignited the debate over infrastructure-level content moderation by banning the snitch website brought into existence by Texas's anti-abortion law. Naturally some more general points about the issue came up in the comments, including the perennial observation that pro-life movements often seem unconcerned about what happens to children once they're actually born. That One Guy wins first place with a response to someone making this point, but in a way the real credit goes to the person being quoted:
A quote I ran across in a youtube comment section of all places sums it up nicely I'd say.The unborn are a convenient group of people to advocate for. They never make demands of you; they are morally uncomplicated, unlike the incarcerated, addicted, or the chronically poor; chy; unlike orphans, they don't need money, education, or childcare; unlike aliens, they don't bring all that racial, cultural, and religious baggage that you dislike; they allow you to feel good about yourself without any work at creating or maintaining relationships; and when they are born, you can forget about them, because they cease to be unbornYou can love the unborn and advocate for them without substantially challenging your own wealth, power, or privilege, without re-imagining social structures, apologizing, or making reparations to anyone. They are, in short, the perfect people to love if you want to claim you love Jesus but actually dislike people who breathe.Prisoners? Immigrants? The sick? The poor? Widows? Orphans? All the groups that are specifically mentioned in the Bible? They all get thrown under the bus for the unborn.— Dr. Dave Barnhart, Christian Minister
Through this framework, "Online Communications Services" (the government lists Facebook, YouTube, TikTok, Instagram, and Twitter as examples)
But it sure as hell isn't limited to those examples. Quoting item 1(A).2:
The Act should define the term Online Communication Service (OCS) as a service that is accessible to persons in Canada, the primary purpose of which is to enable users of the service to communicate with other users of the service, over the internet.
That's every forum, bulletin board, fediverse instance and comment section. Once again, lawmakers act as though Facebook is the Internet ... and propose a regulatory regime under which it will be.
Apple, Google, Facebook and their ilk are clearly not the ones at fault here. It is time we face the fact who our true enemies are: The Children. Techdirt, since time immemorial, have hinted at their ungodly powers to sway the will of the most powerful corporations and governments. We need to stop them.Personally, I have never seen one of these little fuckers so I have no idea how we can defeat them but we have to try.Because if we don't, then... The Children have already won.
In third place, it's a different anonymous commenter on that post, this time with a quick reply to someone else's comment. I'll leave you to deduce, or click through and find out, what they were responding to:
And that's it for the funnies! But we're not done yet...The Top Comments Of 2021 For Insightful & Funny Votes CombinedAs noted, there was no overlap between the two individual category winners and the winners on the leaderboard for the combination of Insightful and Funny votes. This happened once before in 2019, but this time we're going to go ahead and feature all three of the combined winners in full. In first place, it's Bloof on our January post about social media trails making it easy to identify people who stormed the Capitol, with a comment about the incident in general:
Voter fraud that only happened in the parts of the ballots and the states that went against Trump, not the house and senate races where an unassailable democratic majority would be incredibly useful, only the top ticket featuring a massively unpopular republican candidate. Voter fraud so cunning that it only happened in cities filled with minorities among whom Trump is about as beloved as porcupine skin toilet paper. Voter fraud so cunning it somehow managed to happen in places where republicans controlled the elections. Voter fraud so cunning the Trump team have been unable to present any evidence of it whatsoever and had their legal teams back down the moment any judged asked them for actual proof because they don't fancy parroting the same lies they vomit on TV in a place where there'll be consequences for lying. Voter fraud so cunning that republican donors are suing the groups they funded that claimed they're able to prove it happened, for not being, in fact, able to prove anything. Voter fraud so cunning even the most hyper partisan right wing 'news' outlets like Fox and Newsmax issued on multiple on air retractions the moment the election machine companies got the lawyers involved because their stories were based on 4chan posts and the say so of the son of the guy who runs notorious pedophile and Qanon hangout, 8kun.They have no evidence, there is no evidence, it did not happen and screaming and committing acts of terrorism will not make your far right fever dreams of fraud and persecution into a reality. They had ample opportunity to present evidence in front of friendly TV hosts like Tucker Carlson, as well as judge after judge after judge, some of which were appointed by Trump himself and they showed nothing and their cases were rejected every single time.It is clear to everyone with even a lick of common sense that the people parroting these lies are so full of sh*t even the Trump gutted EPA would consider them for a potential superfund site.
"The flag represents freedom...No, not that freedom...No, not that one either...Okay, okay. The flag represents our freedom to tell you what to do when you participate in our most holy religion: college sportsball."
Gaming Like It's 1926: The Public Domain Game JamHappy new year everyone — and happy public domain day! That's right: as of today, works from 1926 are now officially in the public domain in the US, and that means it's time for the latest public domain game jam: Gaming Like It's 1926, presented by Techdirt and Randy Lubin of Diegetic Games. Just like in past years, we're calling on game designers of all stripes and levels of experience to create games that make use of, or are based on, material from newly-public-domain works. The jam starts today and runs until the end of the month: just sign up for the jam on itch.io and submit your game by January 31st.
As always, the jam is open to both digital and analog games (be sure to read over the full requirements on the jam page). There are lots of interesting works entering the public domain this year, including:
If you're new to the jam, you might want to check out the winners of past jams focusing on works from 1923, 1924 and 1925 for inspiration. Whether you're an experienced game designer or just someone who wants to try their hand at the craft, we encourage you to join the jam and start working on your game! The submissions in past years have been truly amazing, and we can't wait to see what you come up with this time around.
As long term readers of Techdirt know, each year since 2008 my final post of the year has been a kind of reflection on optimism. This tradition started after I had a few people ask how come it seemed that I was so optimistic when I seemed to spend all my time writing about scary threats to innovation, the internet, and civil liberties. And there is an odd contradiction in there, but it's one that shows up among many innovation optimists. I'm reminded of Cory Doctorow's eloquent response to those who called internet dreamers like John Perry Barlow "techno utopians."
You don't found an organization like the Electronic Frontier Foundation because you are sanguine about the future of the internet: you do so because your hope for an amazing, open future is haunted by terror of a network suborned for the purposes of spying and control.
And to some extent, my own thinking follows along those lines. I can see amazing, astounding opportunities to continue to make the world a better place through the power of the internet and innovation. I also think we have a bit of amnesia about just how much good the internet and innovation have already created for the world. But, that doesn't mean we get to stop thinking about ways in which it might go wrong.If you'd like to read the past years' New Year's Messages, here's the full list:
Just a few months ago in a conversation with some friends in the tech policy world, I had to admit I was kind of surprised at how defeated they sounded. With dozens of laws being proposed (and a few getting passed) around the globe, at the federal level, and at the state level, there was a sense of despair among many internet supporters, that the good parts of the internet were on their last legs. I can understand where this thinking is coming from, and yet... even with all that, I remain optimistic. That's not to say I don't expect any of the bad laws to go into practice and destroy some of the value of the internet. I'm pretty sure a few such laws are likely to happen, and the consequences of them will be bad.But, perhaps I've reached the age where I recognize that there is no "end of history" and no final state of things. These very bad ideas may come into play, but the internet is amazingly resilient in routing around such nonsense, one way or another, over time. Martin Luther King Jr.'s famous quote is that "the arc of the moral universe is long, but it bends toward justice." A similar kind of thing can be said about innovation. How it plays out may take quite a while, but it tends towards improving the world.That's not to say that there aren't setbacks and problems and disasters -- because obviously there are. But a key part of innovation is not just the act of creating something new and useful and getting it adopted by the world, but rather having society learn to adapt to it. I'm reminded of Clay Shirky discussing the innovation of the printing press, and how there was about a century of upheaval over that bit of innovation, until society really began to grapple with its power. Obviously, the internet has taken that to an entirely new level, and society is still very much adjusting.Indeed, as we've noted repeatedly, many of the "problems" that are now blamed on the internet are actually problems that have existed in society for centuries that we just see more now because of the internet. I am still waiting for people to do a better job breaking down which of the problems commonly associated with the internet today are actually just the internet shining a light on existing problems v. exacerbating or creating them (and also weighing those against which societal problems have actually diminished thanks to the internet -- because that's a long list as well).But, in the end, I have faith that society itself adapts. Not always neatly, and certainly not without many (potentially extremely problematic) mistakes. But society adapts. And the innovation drives it forward: not in a straight line, not without trips and falls, but eventually.Indeed, despite the mess of the last few years -- and especially "the narrative" that "everyone hates the internet" -- I've been seeing more and more recognition that there are opportunities to return to an optimism about tech. Over the summer, I wrote about the concept of the Eternal October, bringing back an optimistic view of how tech and innovation can be good, but with the humility and wisdom gleaned from the mistakes of the past couple of decades.History doesn't end. It just teaches us more lessons. The question is what do we do with those lessons.I've spent the past few months exploring these concepts more and more, and in the New Year expect to see a lot more writing on this. I've been talking to lots of people who are legitimately exploring ways to turn today's innovation into something a lot more promising than it is, and it has me more excited than I've been in a while. And that's even with all of the nonsense happening among policy makers and regulators around the world. Even as they do whatever it is that they do, actual innovators are heads down working on creating a better world.More specific to what's been happening here at Techdirt and the Copia Institute, we've been engaged in a number of different policy discussions to try to prevent governments from making things worse. The Copia Institute officially launched our Copia Gaming initiative (and we've been really busy on that front so stay tuned for a bunch of exciting announcements). We've also got some fun changes for Techdirt itself in store -- including a big one that has been over two years in the making, but where we finally see some light at the end of a tunnel.This year, we also took all third-party ads off the site as well as all Google tracking (at some point next week, we'll do our annual stats review -- but for the first time without using Google Analytics, since that's gone). Of course, that also means that we're more reliant than ever on having our community support us, so please consider supporting the work we do if you can. A few months back, we finally moved on from our own homemade "Insider Chat" and launched the Techdirt Insider Discord, which has been tremendous fun -- and we've got more planned for that too.On that note, my final paragraph of these final posts of the year is always about thanking all of you, the community here at Techdirt, for making this all worthwhile. I started Techdirt over twenty years ago as a fun project that allowed me to work out some of my own thoughts on the intersection of technology, innovation, business, and civil liberties, and over the years it's grown, and I still am amazed each day that anyone pays any attention at all, let alone contributes to the discussions we have here. The community -- of which you reading this are a key part -- is integral to what makes Techdirt so much fun for me. You challenge me, make me think, introduce me to new ideas, help me explore impossibly challenging subjects, and just generally push me and the rest of Techdirt to be better. So thank you, once again, for making Techdirt such a special and wonderful place where we can share and discuss all of these ideas. I look forward to whatever happens as we enter 2022.