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February 2022
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PayPal Enables Scam Artists

Word to the wise, make sure to diligently check out the reputation of whomever you're ordering from whenever you decide to use Paypal as the payment method. I didn't, and what I received wasn't even close to what I ordered. And I've since learned that this is a growing scam category... entice orders of things that appear to be bargains, but still cost between $50-$100, deliver a toothpick in an envelope, then because there's a delivery notification that can be cited by Paypal, they deny a request for a refund, and there's nothing the scammed customer can do about it, because you're shielded from any contact information beyond the Paypal email address of the scammer.

I suggest never using the scam artist enabling Paypal shysters again.


posted at: 1:42pm on 26-Feb-2022
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Important Announcement: Techdirt Is Migrating To A New Platform

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Almost since its inception, Techdirt has been run on a custom content management system that we've built, expanded, and maintained ourselves. Once upon a time this had its advantages, but lately it's been an obstacle to developing the new features and improvements we'd like to add for our readers. So for the past two years we've been working on a huge project: migrating the entire site, and its history of over 75,000 posts and millions of comments, to WordPress — and now we're ready to make the switch. We've worked hard to ensure the transition is as seamless as possible, but there will be a few changes, and those of you with accounts will need to reset your passwords. This post outlines what's going to happen during the transition this weekend, and what you can expect to see when the site changes some time this Sunday evening.First of all, a note about what this is not: it's not a Techdirt redesign. For the time being, the changes are primarily on the back-end and the site will look and work just the way it does now with only a few exceptions, the biggest of which is a significant overhaul and upgrade to the comments section. That's the one part of the site that will look quite different, and work much better: it can now handle deeply-nested threads without becoming unreadable, and there's a handy new tool for navigating lengthy comment sections. All the features you're used to, like Funny/Insightful voting, reporting, and First Word/Last Word will continue to work just as they do now.Another important note is that all posts and comments are being retained, and all old post URLs will continue to work. It was extremely important to us that we not lose any content, or break any links — even though the URL structure for posts is changing, old links will continue to work just fine and be redirected to the appropriate page.And, of course, all user accounts and membership subscriptions are being retained as well. However, as noted, all users will have to reset their passwords before logging in to the new system. It's also possible that you might have to reset your display name, profile picture, and account preferences, though we've tried to ensure that these things are all properly copied as well. We'll make sure there's a prominent notice on Techdirt reminding you once the switch is complete.Amidst all this, there will likely be some unforeseen hiccups. We'll have prominent links to our contact form, and a special feedback category for issues with the website migration, for you to report any problems with your own account or the site in general. This is a massive migration and we're hopeful that problems will be minimal, but please bear with us as we work to fix anything that does go wrong!As for the migration itself, shortly after this post we'll be locking down Techdirt for a few days — you'll still be able to read and navigate the site, but you won't be able to submit comments or create new accounts, and any comment votes or changes to user preferences will not be saved. We also won't be publishing the normal weekend posts. New membership subscription purchases will still be accepted and recorded, but won't be activated until Monday when the new site is live.We're extremely excited to be finally making this change — it makes Techdirt much more manageable and maintainable for our small team, and lays the foundation for the site to improve and grow in the future. Stay tuned for another announcement when the new site is live, and thanks in advance to all our readers for your patience and support as we complete this migration.

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posted at: 12:01am on 26-Feb-2022
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Phoenix City Council Says PD Can Have Surveillance Drones Without Any Policy In Place Because Some Officers Recently Got Shot

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The Phoenix Police Department wants drones and it wants them now. And, according to this report by the Phoenix New Times, it's going to get them.

After several hours of debate and spirited public response during the Phoenix City Council meeting this week, local officials agreed to authorize the police department to purchase public safety drones right away.Late Wednesday night the Phoenix City Council voted 6-3 after a lengthy, and at times heated, discussion.The request was submitted to the city council at the last minute, fast-tracking the agency’s plans to implement the technology.
Why the rush? Well, according to a letter [PDF] signed by Mayor Kate Gallego and two council members, having a drone in the air would have… not changed anything at all about a recent incident where officers were shot.
In the early morning hours of February 11, our officers were ambushed when responding to a call for service at a two-story home in Southwest Phoenix near 54th Avenue and Broadway. Nine of our police officers were injured but thankfully all of them are recovering.During this incident was determined for the safety of our officers drone would need to be utilized to neutralize the situation. Currently, Phoenix does not own any drones for use by our Police Department, therefore we had to rely on the grace of our neighbor, the City of Glendale, to provide our department with a drone.
News reports about the ambush shooting make no mention of a deployed drone or describe what difference it made in resolving the deadly situation. But that shooting that happened to have a late-arriving drone is being used to justify the sudden acquisition of drones by the PD, which will presumably be deployed as soon as they're obtained.Since it's apparently a matter of life and death, the request made by the council for the police to develop a drone policy and deployment plan before seeking funding and permission to acquire them has been abandoned. It's apparently now far too urgent a problem to be slowed down by accountability and transparency.
The committee agreed to allow Phoenix Fire to go ahead with its drone purchases — so it could roll the tech out by the summer — but asked Phoenix police to come back for approval separately, with a more fleshed-out plan.This new proposal will circumvent that, instead allowing Phoenix police to go ahead with the drone purchase “as soon as possible,” according to a memo, without presenting a policy first to the council.
That gives the Phoenix PD permission to send eyes into the skies without meaningful restrictions or oversight. Far too much slack is being cut for a police department that is currently being investigated by the Department of Justice following years of abusive behavior by its officers. Here's what the DOJ -- which announced this investigation last August -- will be digging into:
This investigation will assess all types of use of force by PhxPD officers, including deadly force. The investigation will also seek to determine whether PhxPD engages in retaliatory activity against people for conduct protected by the First Amendment; whether PhxPD engages in discriminatory policing; and whether PhxPD unlawfully seizes or disposes of the belongings of individuals experiencing homelessness. In addition, the investigation will assess the City and PhxPD’s systems and practices for responding to people with disabilities. The investigation will include a comprehensive review of PhxPD policies, training, supervision, and force investigations, as well as PhxPD’s systems of accountability, including misconduct complaint intake, investigation, review, disposition, and discipline.
Not exactly the sort of thing that inspires trust. And certainly not the sort of thing that warrants a free pass on surveillance policies until long after new surveillance tech has been deployed. The Phoenix PD may have recently been involved in an unexpected burst of violence (I mean, committed by someone else against police officers), but that hardly justifies a careless rush into an expansion of the department's surveillance capabilities.

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posted at: 12:01am on 26-Feb-2022
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'Peaky Blinders' Production Company Working With Bushmills On A Themed Whiskey

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Nearly a year ago, we talked about a trademark battle between Caryn Mandabach Productions, the company that produces Netflix's Peaky Blinders hit show, and Sadler's Brewhouse, a combined distillery that applied for a "Peaky Blinders" trademark for several spirits brands. Important to keep in mind is that "Peaky Blinders" isn't some made up gang in a fictional story. That name was taken from very real history in England, as evidenced by the folks that own Sadler's being descendants from one of the gang's members. It's also important to remember that television shows and alcohol are not the same marketplace when it comes to trademark law. Despite that, there has been a years-long dispute raging between Mandabach and Sadler's.And now we have some indication as to why, since Bushmills has announced a partnership with Mandabach Productions to release its own "Peaky Blinders" themed whiskey.

Irish whiskey producer Bushmills could be launching a Peaky Blinders-inspired whiskey after applying to approve a label for the product. Proximo Spirits, which owns Bushmills, made the application to the US Alcohol and Tobacco Tax and Trade Bureau in January 2022.Caryn Mandabach Productions, which produces the hit Neflix series about the flatcap-wearing gang, is thought to be mentioned on the proposed Bushmills label, which also allegedly says the whiskey is licensed by series distributor Banijay Group.
And this is where things get really interesting. Why? Well, the argument I made in the original post on this topic was that Mandabach really didn't have a good argument for opposition or infringement since the production company wasn't actually using the historical name of a real gang to make alcohol. Given the disparate markets, there didn't seem to be any real reason for concern about public confusion.But now that is happening in reverse. A company behind the Netflix show is now partnering with another distillery to enter the spirits market with a "Peaky Blinders" brand and theme. If anything, I would think that Sadler's Brewhouse now has an argument for opposition, given the pending trademark application. Especially since it seems the production company, late to the party, has "plans" to get into the liquor business.
Earlier this month, The Sun revealed that the production company has its own plans to open a line of Peaky Blinders-themed bars and restaurants.
In which case I believe this would come down mostly to a "first to file" race. And if the production company had already filed trademark applications for the liquor business, you really would have thought that fact would be on display in its opposition and suit against Sadler's. But there was no hint of that in any of the documents that informed our previous post.So, on Mandabach's side of things, this all appears to be backwards. Why it should win on any of this is not something I'm able to argue.

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posted at: 12:00am on 25-Feb-2022
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ACLU & EFF Step Up To Tell Court You Don't Get To Expose An Anonymous Tweeter With A Sketchy Copyright Claim

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In November, we wrote about a very bizarre case in which someone was using a highly questionable copyright claim to try to identify an anonymous Twitter user with the username @CallMeMoneyBags. The account had made fun of various rich people, including a hedge fund billionaire named Brian Sheth. In some of those tweets, Money Bags posted images that appeared to be standard social media type images of a woman, and the account claimed that she was Sheth's mistress. Some time later, an operation called Bayside Advisory LLC, that has very little other presence in the world, registered the copyright on those images, and sent a DMCA 512(h) subpoena to Twitter, seeking to identify the user.The obvious suspicion was that Sheth was somehow involved and was seeking to identify his critic, though Bayside's lawyer has fairly strenuously denied Sheth having any involvement.Either way, Twitter stood up for the user, noting that this seemed to be an abuse of copyright law to identify someone for non-copyright reasons, that the use of the images was almost certainly fair use, and that the 1st Amendment should protect Money Bag's identify from being shared. The judge -- somewhat oddly -- said that the fair use determination couldn't be made with out Money Bags weighing in and ordered Twitter to alert the user. Twitter claims it did its best to do so, but the Money Bags account (which has not tweeted since last October...) did not file anything with the court, leading to a bizarre ruling in which Twitter was ordered to reveal the identify of Money Bags.We were troubled by all of this, and it appears that so was the ACLU and the EFF, who have teamed up to tell the court it got this very, very wrong. The two organizations have filed a pretty compelling amicus brief saying that you can't use copyright as an end-run around the 1st Amendment's anonymity protections.

The First Amendment protects anonymous speakers from retaliation and other harms by allowing them to separate their identity from the content of their speech to avoid retaliation andother harms. Anonymity is a distinct constitutional right: an author's decision to remainanonymous, like other decisions concerning omissions or additions to the content of a publication,is an aspect of the freedom of speech protected by the First Amendment. McIntyre v. OhioElections Comm'n, 514 U.S. 334, 342 (1995). It is well-settled that the First Amendment protectsanonymity online, as it facilitates the rich, diverse, and far-ranging exchange of ideas, Doe v.2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001), and ensures that a speakercan use one of the vehicles for expressing his views that is most likely to result in those viewsreaching the intended audience. Highfields, 385 F. Supp. 2d at 981. It is also well-settled thatlitigants who do not like the content of Internet speech by anonymous speakers will often misusediscovery procedures to ascertain the identities of unknown defendants in order to harass,intimidate or silence critics in the public forum opportunities presented by the Internet. DendriteInt'l v. Doe No. 3, 775 A.2d 756, 771 (N.J. App. Div. 2001).Thus, although the right to anonymity is not absolute, courts subject discovery requestslike the subpoena here to robust First Amendment scrutiny. And in the Ninth Circuit, as theMagistrate implicitly acknowledged, that scrutiny generally follows the Highfields standard whenthe individual targeted is engaging in free expression. Under Highfields, courts must firstdetermine whether the party seeking the subpoena can demonstrate that its legal claims have merit.Highfields, 385 F. Supp. 2d at 975-76. If so, the court must look beyond the content of the speechat issue to ensure that identifying the speaker is necessary and, on balance, outweighs the harmunmasking may cause.
The filing notes that the magistrate judge who ordered the unmasking apparently seemed to skip a few steps:
The Magistrate further confused matters by suggesting that a fair use analysis could be aproxy for the robust two-step First Amendment analysis Highfields requires. Order at 7. Thissuggestion follows a decision, in In re DMCA Subpoena, 441 F. Supp. 3d at 882, to resolve asimilar case purely on fair use grounds, on the theory that Highfields is not well-suited for acopyright dispute and the First Amendment does not protect anonymous speech that infringedcopyright....That theory was legally incorrect. While fair use is a free-speech safety valve that helpsreconcile the First Amendment and the Copyright Act with respect to restrictions on expression,anonymity is a distinct First Amendment right.1 Signature Mgmt., 876 F.3d at 839. Moreover,DMCA subpoenas like those at issue here and in In re DMCA Subpoena, concern attempts tounmask internet users who are engaged in commentary. In such cases, as with the blogger inSignature Mgmt., unmasking is likely to chill lawful as well as allegedly infringing speech. Theythus raise precisely the same speech concerns identified in Highfields: the use of the discoveryprocess to impose a considerable price on a speaker's anonymity....ndeed, where a use is likely or even colorably a lawful fair use, allowing a fair use analysisalone to substitute for a full Highfields review gets the question precisely backwards, given thedoctrine's constitutional significance as a guarantor to access and use for First Amendmentpurposes. Suntrust Bank v. Houghton Mifflin, 268 F.3d 1257, 1260 n.3 (11th Cir. 2001). Fair useprevents copyright holders from thwarting well-established speech protections by improperlypunishing lawful expression, from critical reviews, to protest videos that happen to capturebackground music, to documentaries incorporating found footage, and so on. But the existence ofone form of speech protection (the right to engage in fair use) should not be used as an excuse togive shorter shrift to another (the right to speak anonymously).
It also calls out the oddity of demanding that Money Bags weigh in, when its Bayside and whoever is behind it that bears the burden of proving that this use was actually infringing:
Bayside incorrectly claims that Twitter (and by implication, its user) bears the burden ofdemonstrating that the use in question was a lawful fair use. Opposition to Motion to Quash (Dkt.No. 9) at 15. The party seeking discovery normally bears the burden of showing its legal claimshave merit. Highfields, 385 F. Supp. 2d at 975-76. In this pre-litigation stage, that burden shouldnot shift to the anonymous speaker, for at least three reasons.First, constitutional rights, such as the right to anonymity, trump statutory rights such ascopyright. Silvers v. Sony Pictures Entm't, Inc., 402 F.3d 881, 883-84 (9th Cir. 2005). Moreover,fair use has an additional constitutional dimension because it serves as a First Amendment safetyvalve that helps reconcile the right to speak freely and the right to restrict speech. William F.Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 CardozoArts & Ent. L.J. 667, 668 (1993). Shifting the Highfields burden to the speaker would create acruel irony: an anonymous speaker would be less able to take advantage of one First Amendmentsafeguardthe right to anonymitysolely because their speech relies on anotherthe right tofair use. Notably, the Ninth Circuit has stressed that fair use is not an affirmative defense thatmerely excuses unlawful conduct; rather, it is an affirmative right that is raised as a defense simplyas a matter of procedural posture. Lenz v. Universal, 815 F.3d 1145, 1152 (9th Cir. 2016).Second, Bayside itself was required to assess whether the use in question was fair before itsent its DMCA takedown notices to Twitter; it cannot now complain if the Court asks it to explainthat assessment before ordering unmasking. In re DMCA Subpoena, 441 F. Supp. 3d at 886 (citingLenz., 815 F.3d at 1153: a copyright holder must consider the existence of fair use before sendinga takedown notification under 512(c))Third, placing the burden on the party seeking to unmask a Doe makes practical sense atthis early stage, when many relevant facts lie with the rightsholder. Here, for example, Bayside presumably knowsthough it has declined to addressthe original purpose of the works. And asthe copyright holder, it is best positioned to explain how the use at issue might affect a licensingmarket. While the copyright holder cannot see into the mind of the user, the user's purpose is easyto surmise here, and the same is likely to be true in any 512(h) case involving expressive uses.With respect to the nature of the work, any party can adequately address that factor. Indeed, bothBayside and Twitter have done so.
The filing also notes that this is an obvious fair use situation, and the judge can recognize that:
While courts often reserve fair use determinations for summary judgment or trial, inappropriate circumstances it is possible to make the determination based on the use itself. See Inre DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), No. 7:18-MC-00268 (NSR), 2022WL 160270 (S.D.N.Y. Jan. 18, 2022) (rejecting the argument that fair use cannot be determinedduring a motion to quash proceeding). In Burnett v. Twentieth Century Fox, for example, a federaldistrict court dismissed a copyright claimwithout leave to amendat the pleading stage basedon a finding of fair use. 491 F. Supp. 2d 962, 967, 975 (C.D. Cal. 2007); see also Leadsinger v.BMG Music Pub., 512 F.3d 522, 532-33 (9th. Cir. 2008) (affirming motion to dismiss, withoutleave to amend, fair use allegations where three factors unequivocally militated against fair use).See also, e.g., Sedgwick Claims Mgmt. Servs., Inc. v. Delsman, 2009 WL 2157573 at *4 (N.D. Cal.July 17, 2009), aff'd, 422 F. App'x 651 (9th Cir. 2011); Savage v. Council on Am.-Islamic Rels., Inc., 2008 WL 2951281 at *4 (N.D. Cal. July 25, 2008); City of Inglewood v. Teixeira, 2015WL 5025839 at *12 (C.D. Cal. Aug. 20, 2015); Marano v. Metro. Museum of Art, 472 F. Supp. 3d76, 82-83, 88 (S.D.N.Y. 2020), aff'd, 844 F. App'x 436 (2d Cir. 2021); Lombardo v. Dr. SeussEnters., L.P., 279 F. Supp. 3d 497, 504-05 (S.D.N.Y. 2017), aff'd, 729 F. App'x 131 (2d Cir.2018); Hughes v. Benjamin, 437 F. Supp. 3d 382, 389, 394 (S.D.N.Y. 2020); Denison v. Larkin,64 F. Supp. 3d 1127, 1135 (N.D. Ill. 2014).These ruling are possible because many fair uses are obvious. A court does not need toconsult a user to determine that the use of an excerpt in a book review, the use of a thumbnailphotograph in an academic article commenting on the photographer's work, or the inclusion of animage in a protest sign are lawful uses. There is no need to seek a declaration from a journalistwhen they quote a series of social media posts while reporting on real-time events.
And the uses by Money Bags were pretty obviously fair use:
First, the tweets appear to be noncommercial, transformative, critical commentaryclassicfair uses. The tweets present photographs of a woman, identified as the new Mrs. Brian Shethas part of commentary on Mr. Sheth, the clear implication being that Mr. Sheth has used his wealthto invest in a new, young, wife. As the holder of rights in the photographs, Bayside could haveexplained the original purpose of the photographs; it has chosen not to do so. In any event, itseems unlikely that Bayside's original purpose was to illustrate criticism and commentaryregarding a billionaire investor. Hence, the user used the [works] to express 'something new, witha further purpose or different character, altering the first with new expression, meaning, ormessage.' In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d at 883 (quoting Campbell v.Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). While undoubtedly crass, the user's purposeis transformative and, Bayside's speculation notwithstanding, there is nothing to suggest it wascommercial.
The filing also calls out the magistrate judge's unwillingness to consider Twitter's own arguments:
Of course, there was a party in court able and willing to offer evidence and argument onfair use: Twitter. The Magistrate's refusal to credit Twitter's own evidence, Order at 7-8, sends adangerous message to online speakers: either show up and fully litigate their anonymityriskingtheir right to remain anonymous in the processor face summary loss of their anonymity whenthey do not appear. Order at 7. That outcome inevitably impose[s] a considerable price oninternet users' ability to exercise their rights to speak anonymously. Highfields, 385 F. Supp. 2dat 980-81. And when word gets out that the price tag of effective sardonic speech is this high, thatspeech will likely disappear.
Hopefully the court reconsiders the original ruling...

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posted at: 12:00am on 25-Feb-2022
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Clearview Pitch Deck Says It's Aiming For A 100 Billion Image Database, Restarting Sales To The Private Sector

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Clearview AI -- the facial recognition tech company so sketchy other facial recognition tech companies don't want to be associated with it -- is about to get a whole lot sketchier. Its database, which supposedly contains 10 billion images scraped from the internet, continues to expand. And, despite being sued multiple times in the US and declared actually illegal abroad, the company has expansion plans that go far beyond the government agencies it once promised to limit its sales to.A Clearview pitch deck obtained by the Washington Post contains information about the company's future plans, all of which are extremely concerning. First, there's the suggestion nothing is slowing Clearview's automated collection of facial images from the web.

The facial recognition company Clearview AI is telling investors it is on track to have 100 billion facial photos in its database within a year, enough to ensure “almost everyone in the world will be identifiable,” according to a financial presentation from December obtained by The Washington Post.
As the Washington Post's Drew Harwell points out, 100 billion images is 14 images for every person on earth. That's far more than any competitor can promise. (And for good reason. Clearview's web scraping has been declared illegal in other countries. It may also be illegal in a handful of US states. On top of that, it's a terms of service violation pretty much everywhere, which means its access to images may eventually be limited by platforms who identify and block Clearview's bots.)As if it wasn't enough to brag about an completely involuntary, intermittently illegal amassing of facial images, Clearview wants to expand aggressively into the private sector -- something it promised not to do after being hit with multiple lawsuits and government investigations.
The company wants to expand beyond scanning faces for the police, saying in the presentation that it could monitor “gig economy” workers and is researching a number of new technologies that could identify someone based on how they walk, detect their location from a photo or scan their fingerprints from afar.
Clearview is looking for $50 million in funding to supercharge its collection process and expand its offerings beyond facial recognition. That one thing it suggests is more surveillance of freelancers, work-from-home employees, and already oft-abused "gig workers" is extremely troubling, since it would do little more than give abusive employers one more way to mistreat people they don't consider to be "real" employees.Clearview also says its surveillance system compares favorably to ones run by the Chinese government… and not the right kind of "favorably."
[Clearview says] that its product is even more comprehensive than systems in use in China, because its “facial database” is connected to “public source metadata” and “social linkage” information.
Being more intrusive and evil than the Chinese government should not be a selling point. And yet, here we are, watching the company wooing investors with a "worse than China" sales pitch. Once again, Clearview has made it clear it has no conscience and no shame, further distancing it from competitors in the highly-controversial field who are unwilling to sink to its level of corporate depravity.Clearview may be able to talk investors into parting with $50 million, but -- despite its grandiose, super-villainesque plans for the future -- it may not be able to show return on that investment. A sizable part of that may be spent just trying to keep Clearview from sinking under the weight of its voluminous legal bills.
Clearview is battling a wave of legal action in state and federal courts, including lawsuits in California, Illinois, New York, Vermont and Virginia. New Jersey’s attorney general has ordered police not to use it. In Sweden, authorities fined a local police agency for using it last year. The company is also facing a class-action suit in a Canadian federal court, government investigations in Canada, Sweden and the United Kingdom and complaints from privacy groups alleging data protection violations in France, Greece, Italy and the U.K.
As for its plan to violate its promise to not sell to commercial entities, CEO Hoan Ton-That offers two explanations for this reversal, one of which says it's not really a reversal.
Clearview, he told The Post, does not intend to “launch a consumer-grade version” of the facial-search engine now used by police, adding that company officials “have not decided” whether to sell the service to commercial buyers.
Considering the pitch being made, it's pretty clear company officials will decide to start selling to commercial buyers. That's exactly what's being pitched by Clearview -- something investors will expect to happen to ensure their investment pays off.Here's the other… well, I don't know what to call this exactly. An admission Clearview will do whatever it can to make millions? That "principles" is definitely the wrong word to use?
In his statement to The Post, Ton-That said: “Our principles reflect the current uses of our technology. If those uses change, the principles will be updated, as needed.”
Good to know. Ton-That will adjust his company's morality parameters as needed. Anything Clearview has curtailed over the past two years has been the result of incessant negative press, pressure from legislators, and multiple adverse legal actions. Clearview has done none of this willingly. So, it's not surprising in the least it would renege on earlier promises as soon as it became fiscally possible to do so.

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posted at: 12:00am on 24-Feb-2022
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Apple Finally Defeats Dumb Diverse Emoji Lawsuit One Year Later

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Roughly a year ago, we discussed a wildly silly lawsuit brought against Apple by a company called Cub Club and an individual, Katrina Parrott. At issue were "diverse emojis", which by now are so ubiquitous as to be commonplace. Parrott had created some emojis featuring more diverse and expansive color/skin tones. And, hey, that's pretty cool. The problem is that, after she had a meeting with Apple about her business, Apple decided to simply incorporate diverse skin tones into its existing emojis. The traditional yellow thumbs up hand suddenly came with different coloration options. Cub Club and Parrott sued, claiming both copyright and trademark infringements.We said at the time we covered Apple's motion to dismiss that there was very, very little chance of this lawsuit going anywhere. The trademark portion was completely silly, given that Apple wasn't accused of any direct copying, but merely of copying the idea of diverse emojis. Since ideas aren't afforded copyright protection, well, that didn't seem like much of a winner. The trade dress claims made even less sense, since they were levied over the same content: Apple's diverse emojis. The argument from Parrott was that Apple having diverse emojis would confuse the public into thinking it had contracted with Cub Club. But that isn't how the law works. The thing you're suing over can't be a functional part of the actual product. In this case, that's literally all it was.And so it is not particularly surprising that I'm able to up date you all that the court has dismissed the case a year later.

Apple Inc convinced a California federal judge on Wednesday to throw out a lawsuit accusing the tech giant of ripping off another company's multiracial emoji and violating its intellectual property rights.Cub Club Investment LLC didn't show that Apple copied anything that was eligible for copyright protection, U.S. District Judge Vince Chhabria said.Chhabria gave Cub Club a chance to amend its lawsuit but said he was "skeptical" it could succeed based on several differences between its emoji design and Apple's.
The analysis you'll see in the order embedded below basically follows our previous analysis. On the copyright claim, the judge points out that the idea of diverse emojis cannot be copyrighted and, since the accusation about similarity between the emojis themselves is made in an area where very little differences could exist, this doesn't amount to copyright infringement.
Chhabria said in a Wednesday order that even if the complaint was true, Apple at most copied Cub Club's unprotectable "idea" of diverse emoji."There aren't many ways that someone could implement this idea," Chhabria said. "After all, there are only so many ways to draw a thumbs up."
Exactly. As to the trade dress portion of this, well, there again the court found that the trade dress accusation concerned non-protectable elements.
To state a claim for trade dress infringement, a plaintiff must allege that “the trade dress is nonfunctional, the trade dress has acquired secondary meaning, and there is substantial likelihood of confusion between the plaintiff’s and defendant’s products.” Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1145 (9th Cir. 2009). The trade dress alleged in the complaint is functional. The asserted trade dress consists of “the overall look and feel” of Cub Club’s “products,” including “the insertion of an emoji into messages . . . on mobile devices by selecting from a palette of diverse, five skin tone emoji.” This is functional in the utilitarian sense...
Again, right on point.At the end of the day, while it's true that's it's easy to point at any civil lawsuit and call it a money grab, it's hard to see how this one isn't. There's simply nothing in any of this that's particularly unique or novel, even though I grant that it's a good thing there is more representation options in emojis.

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posted at: 12:00am on 24-Feb-2022
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Video Game History Foundation: Nintendo Actions 'Actively Destructive To Video Game History'

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I've been banging on a bit lately about the importance of video game preservation as a matter of art preservation. It's not entirely clear to me how much buy in there is out there in general on this concept, but it's a challenge in this specific industry because much of the control over what can be preserved or not sits in the hands of game publishers and platforms compared with other forms of art. Books have libraries, films have the academies and museums, and music is decently preserved all over the place. But for gaming, even organizations like the Video Game History Foundation have to rely on publishers and platforms to let them do their work, or risk art being lost entirely to the digital ether or lawsuits over copyright. We've talked in the past about how copyright law is far too often used in a way that results in a loss of our own cultural history, and digital-only video games are particularly vulnerable to that.We just discussed Nintendo's forthcoming shutdown of the 3DS and Wii U stores, and what that meant for digital games that Nintendo indicates it is not planning on selling anywhere else. Well, the Video Game History Foundation released a statement on that action and, well, hoo-boy...

While it is unfortunate that people won’t be able to purchase digital 3DS or Wii U games anymore, we understand the business reality that went into this decision. What we don’t understand is what path Nintendo expects its fans to take, should they wish to play these games in the future. As a paying member of the Entertainment Software Association, Nintendo actively funds lobbying that prevents even libraries from being able to provide legal access to these games. Not providing commercial access is understandable, but preventing institutional work to preserve these titles on top of that is actively destructive to video game history. We encourage ESA members like Nintendo to rethink their position on this issue and work with existing institutions to find a solution.
Accusing Nintendo of being "actively destructive to video game history" is a hell of a charge, but point out where it's wrong. I'll wait.The problem here is that video games are still seen, both by the public and producers, as something less than the kind of artistic output of literature, paintings, sculptures, or movies. Imagine a world where someone took the collective works of Monet or Bach, shutdown the venue in which you could pay to see them, and then also indicated that nobody else was allowed to display them for commercial benefit or not. Nobody would accept such a situation. That is culture and it belongs, in at least some small ways, to all of us.Either because the history of video games is much more recent, or due to stodgy hand-waiving about how these games are not "real art", far less fur is raised over Nintendo taking these actions without any guarantee, or in some cases hostility, to preservation efforts. Yes, Nintendo has directly produced many of these games and it has rights for them due to that. But those games are also part of our shared cultural history, and no individual or company is, or should be, afforded the right to determine how we document that cultural history.If nothing else, that certainly isn't the purpose of copyright law.

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posted at: 12:00am on 23-Feb-2022
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Massachusetts Court Says No Expectation Of Privacy In Social Media Posts Unwittingly Shared With An Undercover Cop

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Can cops pretend to be real people on social media to catfish people into criminal charges? Social media services say no. Facebook in particular has stressed -- on more than one occasion -- that it's "real name" policy applies just as much to cops as it does to regular people.Law enforcement believes terms of service don't apply to investigators and actively encourages officers to create fake accounts to go sniffing around for crime. That's where the Fourth Amendment comes into play. It's one thing to passively access public posts from public accounts. It's quite another when investigators decide the only way to obtain evidence to support search or arrest warrants involves "friending" someone whose posts aren't visible to the general public.What's public is public and the third party doctrine definitely applies: users are aware their public posts are visible to anyone using the service. But those who use some privacy settings are asking courts whether it's ok for cops to engage in warrantless surveillance of their posts just because they made the mistake of allowing a fake account into their inner circle.Accepting a friend request is an affirmative act. And that plays a big part in court decisions finding in favor of law enforcement agencies. Getting duped isn't necessarily a constitutional violation. And it's difficult to claim you've been unlawfully surveilled by fake accounts run by cops. You know, due diligence and all that. It apparently makes no difference to courts that cops violated platforms' terms of service or engaged in subterfuge to engage in fishing expeditions for culpatory evidence.Massachusetts' top court has been asked to settle this. And the state justices seem somewhat skeptical that current law (including the state's constitution) allows for extended surveillance via fake social media accounts. No decision has been reached yet, but lower courts in the state are adding to case law, providing additional precedent that may influence the final decision from the state's Supreme Court.This recent decision [PDF] by a Massachusetts Superior Court indicates the courts are willing to give cops leeway considering the ostensibly-public nature of social media use. But it doesn't give the Commonwealth quite as much leeway as it would like.Here's how it started:

After accepting a "friend" request from the officer, the defendant published a video recording to his social media account that featured an individual seen from the chest down holding what appeared to be a firearm. The undercover officer made his own recording of the posting, which later was used in criminal proceedings against the defendant. A Superior Court judge denied the defendant's motion to suppress the recording as the fruit of an unconstitutional search, and the defendant appealed. We transferred the matter to this court on our own motion.
Here's how it's going:
Among other arguments, the defendant suggests that because his account on this particular social media platform was designated as "private," he had an objectively reasonable expectation of privacy in its contents. The Commonwealth contends that the act of posting any content to a social media account de facto eliminates any reasonable expectation of privacy in that content.
The competing arguments about expectation are (from the defendant) "some" and (from the Commonwealth) "none." It's not that simple, says the court.
Given the rapidly evolving role of social media in society, and the relative novelty of the technology at issue, we decline both the defendant's and the Commonwealth's requests that we adopt their proffered brightline rules.
In this case, Boston police officer Joseph Connolly created a fake Snapchat account and sent a friend request to a private account run by "Frio Fresh." Fresh accepted the friend request, allowing the officer access to all content posted. In May 2017, Officer Connolly saw a "story" posted by "Frio Fresh" that showed him carrying a silver revolver. Connolly recorded this and passed the information on to a BPD strike force after having observed (but not recorded) a second "story" showing "Frio Fresh" in a gym. The strike force began surveilling the gym and soon saw "Frio Fresh" wearing the same clothes observed in the first story (the one the officer was able to record with a second device). Strike force members pursued "Frio Fresh" and searched him, recovering the revolver seen in the Snapchat story.The court recognizes the damage free-roaming surveillance of social media can do to constitutional rights, as well as people's generally accepted right to converse freely among friends.
Government surveillance of social media, for instance, implicates conversational and associational privacy because of the increasingly important role that social media plays in human connection and interaction in the Commonwealth and around the world. For many, social media is an indispensable feature of social life through which they develop and nourish deeply personal and meaningful relationships. For better or worse, the momentous joys, profound sorrows, and minutiae of everyday life that previously would have been discussed with friends in the privacy of each others' homes now generally are shared electronically using social media connections. Government surveillance of this activity therefore risks chilling the conversational and associational privacy rights that the Fourth Amendment and art. 14 seek to protect.
Despite this acknowledgment, the court rules against the defendant, in essence saying it was his own fault for not vetting his "friends" more thoroughly. The defendant seemed unclear as to Snapchat privacy settings and, in this case, willingly accepted a friend request from someone he didn't know who used a Snapchat-supplied image in his profile. In essence, the court is saying either you care about your privacy or you don't. And, in this case, the objective expectation of privacy is undercut by the subjective expectation of privacy this user created by being less than thorough in his vetting of friend requests.
Nonetheless, the defendant's privacy interest in this case was substantially diminished because, despite his asserted policy of restricting such access, he did not adequately "control[] access" to his Snapchat account. Rather, he appears to have permitted unknown individuals to gain access to his content. See id. For instance, Connolly was granted access to the defendant's content using a nondescript username that the defendant did not recognize and a default image that evidently was not Connolly's photograph. By accepting Connolly's friend request in those circumstances, the defendant demonstrated that he did not make "reasonable efforts to corroborate the claims of" those seeking access to his account.[...]Indeed, Connolly was able to view the defendant's stories precisely because the defendant gave him the necessary permissions to do so. That the defendant not only did not exercise control to exclude a user whose name he did not recognize, but also affirmatively gave Connolly the required permissions to view posted content, weighs against a conclusion that the defendant retained a reasonable expectation of privacy in his Snapchat stories.
The final conclusion is that this form of surveillance -- apparently without a warrant -- is acceptable because the surveilled user didn't take more steps to protect his posts from government surveillance. There's no discussion about the "reasonableness" of officers creating fake accounts to gain access to private posts without reasonable suspicion of criminal activity. Instead, the court merely states that "undercover police work" is "legitimate," and therefore not subjected to the same judicial rigor as the claims of someone who was duped into revealing the details of their life to an undercover cop.The defendant may get another chance to appeal this decision if the state's Supreme Court decides creating fake accounts to trawl for criminal activity falls outside the boundaries of the Constitution. Until then, the only bright line is don't accept friend requests from people you don't know. But that's still problematic, considering there's no corresponding restriction on government activities, which may lead to officers impersonating people from targets' social circles to gain access to private posts. And when that happens, what recourse will defendants have? The court says it's on defendants to protect their privacy no matter how many lies law enforcement officers tell. That shifts too much power to the government and places the evidentiary burden solely on people who expect their online conversations to be free of government surveillance.

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posted at: 12:00am on 23-Feb-2022
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This Week In Techdirt History: February 13th - 19th

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Five Years AgoThis week in 2017, Oracle filed its opening brief in its renewed attempt to overturn Google's fair use win on Java APIs. The UK rolled out a "piracy alert system" that was mostly but not entirely benign, while politicians there were looking to follow up on the Snooper's Charter with an even worse anti-whistleblowing law. In the US, things weren't looking good for net neutrality between the opinions of FCC commissioners and the shifty activities of telco. Meanwhile, prosecutors and anti-sex-trafficking advocates were speaking out about the government's treatment of Backpage, while a new report on encryption showed that its proliferation was not much of a problem for law enforcement.Ten Years AgoThis week in 2012, there were mass protests against ACTA all across Europe. The European Parliament President criticized the agreement, and the EU official who resigned over it was detailing its many problems — but the EU Commission was trying to claim the widespread concerns were all based on 'myths', and lobby groups like the IFPI were claiming that the protests were anti-democratic. Meanwhile, US Senators were ramping up the fearmongering to push for a cybersecurity bill that they insisted was nothing like SOPA — but which also didn't seem necessary.Fifteen Years AgoThis week in 2007, we examined Universal Music's ridiculous 'settlement' with small video sharing site Bolt, while Hollywood was expressing its ongoing displeasure with Google (as were some very confused Belgian newspapers). Broadcasters were making yet another attempt at anti-satellite radio legislation, sample troll Bridgeport Music won an unfortunate victory, and the RIAA was trying to get ISPs to help it hound customers into settling its lawsuits.

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posted at: 12:00am on 20-Feb-2022
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Letter From High-Ranking FBI Lawyer Tells Prosecutors How To Avoid Court Scrutiny Of Firearms Analysis Junk Science

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Law enforcement -- including the FBI -- like to claim they're heavily invested in science. The use of forensic "science" has been with us for years, but nowhere is it more sketchy than in law enforcement labs, where zero accountability rubs elbows with zero outside review of methods.For years now, evidence historically claimed to be almost certain indications of guilt has been shown to be, in many cases, no better than a coin flip. Even DNA has its problems, especially when "expert" witnesses overstate their ability to exclude "innocent" DNA from cluttered crime scenes. The unwillingness of police to police themselves has been aggravated by the unwillingness of courts to question statements made by forensic techs -- ones that include things like claiming a person can be positively identified by the wrinkles and creases in their mass-produced clothing.One judge -- Jed S. Rakoff -- did speak up. He excused himself from the DOJ's examination of law enforcement forensics once it became clear the Justice Department was more interested in finding supporting claims than dissenting voices. The DOJ's Deputy Attorney General informed Judge Rakoff that examination of pre-trial evidence procedures was beyond the "scope" of the Commission, resulting in Rakoff's resignation.Blood pattern analysis, bite mark patterns, hair matching, etc. Nearly every supposedly inarguable form of forensic evidence has been determined to be junk science under closer examination. Even the FBI has admitted its forensic experts have routinely overstated the certainty of their findings during sworn testimony.You would think all of this would add up to a major overhaul of forensic procedures and requirements that testing methods be subjected to peer review or blind testing or literally anything other than the zero scrutiny it has enjoyed for years. You'd be wrong. Instead, law enforcement officers and officials have been putting their energy into finding ways to keep their junk science from being rejected by courts.A letter obtained by The Daily Beast shows the FBI would rather lie to courts than give up the use of yet another questionable forensic technique: bullet matching. Investigators claim bullet fragments contain unique markings from the barrel of the gun they're fired from and these can be used to uniquely identify the weapon used to fire the bullet. This, of course, assumes there are no similarities between mass-produced weapons and mass-produced bullets that might result in "matches" that say nothing more than a certain kind of gun fired a bullet designed to be fired from that model of gun.This supposed form of evidence was called into question by the Obama Administration:

The most damning criticism of the field came in a 2016 report by the Presidents Council of Advisers on Science and Technology, or PCAST, which found that firearms analysis currently falls short of the criteria for foundational validity, and that the studies the fields practitioners often cite to support their work are poorly designed and seriously underestimate the false positive rate.
Following this report, some judges began to push back against this questionable evidence. Law enforcement is pushing back, led by none other than a high-ranking lawyer representing the FBI's forensic team.
Late last year, a forensic firearms analyst in Wisconsin emailed a remarkable document to more than 200 of her colleagues across the country. It was a handout from an online lecture given by Jim Agar, the assistant general counsel for the FBI Crime Lab.[...]In the two-page handout, Agar instructs firearms analysts on how to circumvent judges restrictions on unscientific testimony. He even suggests dialogue for prosecutors and analysts to recite if challenged. Most controversially, Agar advises analysts to tell judges that any effort to restrict their testimony to claims backed by scientific research is tantamount to asking them to commit perjury.
The letter [PDF] is quite the read. The FBI lawyer refuses to even consider the idea that bullet-matching forensics might be faulty. Instead, he instructs prosecutors and expert witnesses to work together to undermine any attempt the court (or defense lawyers) might make to depict these findings as questionable. It starts by implying courts are wrong to even question the expertise of forensic techs.
So far, no court has excluded the testimony of a firearms identification expert witness. The greater likelihood is that the court will attempt to compromise and craft some kind of language that weakens or neuters the experts identification opinion, substituting that terminology for the examiners identification opinion. Some courts have put in place so-called limitations to that testimony, which fundamentally alter the examiners opinion. However, these are not true limitations because they make material and substantive changes to the experts testimony. These are wholesale attempts to rewrite the firearm experts testimony by a layman with no experience in forensic science. This practice is not supported by either science or the law.
And it wraps up by suggesting forensic experts opt out of testifying completely rather than have their expertise and statements called into question:
If the court insists on limiting the firearms expert testimony to GRC or class characteristics, I probably would not call the examiner at all. Instead, I would put on a lay witness such as the case agent or an armorer for the police department to testify about the similar class characteristics of the weapon and the bullets and/or cartridge cases.
Does this sound like science to you? Anything backed by actual science would be able to survive evidentiary challenges. Since this isn't, it's not strong enough to even survive cursory examination. Any case relying solely on this junk science should be doomed. But by forcing the court to play by the FBI's terms (or, conversely, preventing the forensic expert from being questioned), the agency can still roll the dice on bypassing scrutiny of its means and methods.The problem for the FBI now is that this letter is out there in the public domain. Judges paying attention to these issues will know exactly why the prosecution is asking leading questions of its forensic expert or why there's no forensic expert being asked to testify. This letter alone should cause most firearms analysis to be tossed immediately. It probably won't, but it should, unless the law enforcement agency can definitively show it uses methods not used by the FBI or has completely disregarded the suggestions of the FBI's counsel.Real evidence should be able to survive scrutiny. It should be able to stand on its own without the prosecution playing "hide the witness." This letter is a tacit admission that firearms analysis is more guesswork than science. As such, it should be considered damning evidence of its own -- something that will force law enforcement experts to thoroughly and scientifically justify their assertions. And it should definitely encourage the DOJ to consider halting the use of firearms forensics until it can find a scientifically sound way of doing so. But, if history is any indicator, the DOJ would rather score cheap wins that use forensic evidence backed by sound science.

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posted at: 8:42am on 19-Feb-2022
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Nintendo Is Beginning To Look Like The Disney Of The Video Game Industry

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Techdirt, and myself specifically, have had an awful lot to say about Nintendo. To be fair to me, not every post I write about the company is negative. But to be fair to anyone with a pair of eyeballs, much of it certainly has been negative. I find that the company prioritizes control of every last ounce of its IP over its own customers and fans, that the company behaves in a manner so aloof as to be almost comical, and that the company seems perfectly willing to break the entire concept of the American copyright system incentives by combatting all forms of "piracy" or use of its IP while also being perfectly willing to silo that IP in places where the public simply cannot legitimately access it.Does that sound like anyone else to you? Because it sounds like Disney to me. And, frankly, Nintendo's latest move sounds like the gaming industry equivalent to precisely what Disney has historically done with its "vaulting" of certain movies for periods of time. In this case, Nintendo has shut down the 3DS and Wii U stores, all while saying that it doesn't currently plan to make those classic games available elsewhere.

- As of May 23, 2022, it will no longer be possible to use a credit card to add funds to an account in Nintendo eShop on Wii U or the Nintendo 3DS family of systems.- As of August 29, 2022, it will no longer be possible to use a Nintendo eShop Card to add funds to an account in Nintendo eShop on Wii U or the Nintendo 3DS family of systems. However, it will still be possible to redeem download codes until late March 2023.
To be fair and clear, owners of a Wii U and 3DS will still be able to redownload purchased games and engage in online play after those dates. For how long? Well, according to Nintendo, for "the foreseeable future." Which... yeah. Part of the problem here, as Kotaku notes, is that the 3DS and Wii U were also places where gamers could actually purchase and own classic Nintendo titles. There really isn't an equivalent to that once those stores are shut down as the newer consoles rely on subscriptions for gamers to play those classic games. No game purchases, just access via the subscription. So with this ownership option going away, will Nintendo replace it somewhere else? Nope!
Across our Nintendo Switch Online membership plans, over 130 classic games are currently available in growing libraries for various legacy systems. The games are often enhanced with new features such as online play.We think this is an effective way to make classic content easily available to a broad range of players. Within these libraries, new and longtime players can not only find games they remember or have heard about, but other fun games they might not have thought to seek out otherwise.We currently have no plans to offer classic content in other ways.
And so, there you have it. This reads much like a Disney message. You can have the content you want only in the way we want you to have it, under the subscription model we prefer, and only at times we make it available to you. Oh, and we can change all that up at any time because, once again, you're not actually buying anything, you're just subscribing to a service.Oh, and one more thing you may be thinking if you've been following along with my posts about video game preservation needing some attention. You may be remembering that Nintendo had a section on its site that specifically talked about game preservation. Well, don't go looking now, because it's gone.
Especially wild, then, is the fact that not long after publishing this, Nintendo wiped that particular section of the Q&A from its site. Go and check it now and the “Doesn’t Nintendo have an obligation to preserve its classic games by continually making them available for purchase?” part is gone.
All the while, of course, the company will continue to punish fans by going after ROM sites, fan-made creations and recreations, YouTube channels featuring classic Nintendo music, and all the rest. If Nintendo isn't the Disney of the gaming industry, it's as close as we're likely to get.

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posted at: 12:00am on 19-Feb-2022
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FOIA Lawsuit Featuring A DC Police Whistleblower Says PD Conspired To Screw Requesters It Didn't Like

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It's no secret government agencies love to screw with FOIA requesters. This is especially true when the responding agency doesn't care for the requester's attitude or thinks the release of information might lead to future negative reporting or embarrassment.Most agencies, however, are careful not to set up any policies -- formal or informal -- that serve to deter certain requesters. And those that do have, so far, been lucky enough to not employ a whistleblower in their FOIA departments.That's what happened to the Washington DC Metro Police Department, according to a recently filed lawsuit. Here's Elizabeth Nolan Brown with the details for Reason:

Did D.C. cops conspire to keep damning information from people and groups critical of them? That's what criminal defense lawyer Amy Phillips alleges in a new federal lawsuit, filed in the U.S. District Court for the District of Columbia.The suit stems from a whistleblower's account of life inside the D.C. police department's Freedom of Information Act (FOIA) office. The whistleblower said she was instructed to flag for higher-ups any records requests coming from certain individuals and groups, as well as requests regarding certain sensitive topics. They would then strategize about ways to discourage, delay, or deny these requests.
Those targeted by this informal policy included reporters, activists, and members of local advisory groups. This is from former DC Metro PD FOIA officer Vendette T. Parker's sworn affidavit, which is attached to the defense lawyer's lawsuit [PDF]:
Some examples are Eric Flack, WUSA9 reporter; Marina Marraco, Fox5 reporter; the ACLU; Denise Krepp ANC [Advisory Neighborhood Commission] Commissioner; Lorenzo Greene, ANC Commissioner; Benjamin Douglass, Anti-Defamation League (ADL); Emily Barth, Public Defender's Office; and Amy Phillips, Public Defender's Office; among others.
This list was compiled by Parker and Metro PD Chief Operating Officer, LeeAnn Turner. As head of the FOIA office, Parker was expected to stonewall requests from requesters on the list as well as shield the department and its Chief of Police from embarrassment.
Although Ms. Turner did not name any specific individual in this meeting, she made it clear that I should bring to her attention any request coming from a person he has previously published a negative media article about Chief Newsham or MPD, if he uses the records for litigation if he is outspoken in City Council or community meetings in a negative way toward Chief Newsham or MPD, if the requester is the subject of a high profile incident, or if he repeatedly requests records that have the potential to be detrimental to Chief Newsham or MPD, regardless is of whether or not what is currently being requested is potentially detrimental.
The list of documents that might trigger this informal policy (no matter who requested them) were requests targeting the PD's controversial Gun Recovery Unit, personnel records, emails involving the police chief, use of force records, stop and frisk records, and anything involving "recent negative high profile events."The list of requests and requesters was forwarded to Turner and the police chief and a weekly meeting was held to discuss how best to thwart requests that satisfied the unwritten criteria established by the PD's Chief Operating Officer.Amy Philips first suspected something might be up after attending an Adverse Action Hearing for Officer Sean Lojocano, who was accused of conducting "unnecessarily invasive genital searches" of people he stopped. Despite this meeting being attended by other members of the public (including an ACLU rep and a local journalist), the Metro PD rejected Philips' request for recordings and transcripts of the hearing. And it did so in record time.
Less than ninety minutes after Phillips submitted her Lojocano request through the District’s online FOIA portal, she received a response denying her request in full. The response came from Latrina Crumlin, who identified herself as a “Staff Assistant, FOIA” for MPD. The response read “A release of such records would constitute as a [sic] clearly unwarranted invasion of personal privacy and is exempt from disclosure pursuant to D.C. Official Code § 2-534(a)(2) and (a)(3)(C).”  This was wrong, and it was strange. Usually, MPD takes weeks or months to provide any substantive response to FOIA requests. And Crumlin’s position appeared to be that the records of a public hearing—one that Phillips and many others attended—were categorically excludable as invasions of someone’s privacy, which does not make any sense.
As Philips' lawsuit points out, a policy like this -- whether official or unofficial -- violates her First Amendment right to access this information. She's seeking an injunction forbidding the PD from engaging in future viewpoint and content based discrimination when handling FOIA requests.While it's almost certain other public agencies are engaging in similar practices to thwart pesky requesters or delay public embarrassment for as long as possible, this is the first time a FOIA litigant has secured a sworn affidavit from someone who participated in FOIA keep away at the behest of their supervisors. That's going to go a long way in litigation like this and with any luck, the Metro PD won't be able to jerk people around in the future just because it doesn't like them or their requests.

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posted at: 12:00am on 18-Feb-2022
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Senator Blumenthal: Dismissing All Critics Of EARN IT As 'Big Tech Lobbyists' Shows Your Unwillingness To Recognize The Massive Problems In Your Bill

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In the past, whenever Senator Richard Blumenthal has been called out for his many terrible legislative ideas regarding regulating technology and the internet, he has a habit of dismissing all of the concerns by claiming the complaints are only coming from "big tech lobbyists." He did this a few years ago with FOSTA, which has since proven to be exactly the disaster many of us warned Senator Blumenthal about at the time. This time around, he's going straight to the same playbook again, and it's good to see that he's getting some pushback. Nathalie Marchal, from Ranking Digital Rights has published a great piece over at Tech Policy Press: No, Senator Blumenthal, I am not a Big Tech Lobbyist.Ranking Digital Rights is about as far from a "big tech lobbyist" as you can find. The organization has been advocating for the FTC to ban targeted advertising, which is basically the key way in which both Google and Facebook make the majority of their money. And yet, it also recognizes the dangers of EARN IT.The article notes that over 60 human rights groups signed a detailed letter highlighting the many problems of the bill. For Blumenthal to simply dismiss all of those concerns -- put together by respected groups who are in no way "big tech lobbyists" -- shows his pure disdain for facts and unwillingness to put in the effort to understand the very real damage his bill will do should it become law.It's shameful behavior for a US senator, even if not surprising.

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posted at: 12:00am on 18-Feb-2022
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Content Moderation Case Study: YouTube Doubles Down On Questionable 'graphic Content' Enforcement Before Reversing Course (2020)

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Summary:YouTube creators have frequently complained about the opaque and frustrating nature of the platform’s appeals process for videos that are restricted or removed for violating its Community Guidelines. Beyond simply removing content, these takedowns can be severely damaging to creators, as they can result in “strikes” against a channel. Strikes incur temporary restrictions on the user’s ability to upload content and use other site features, and enough strikes can ultimately lead to permanent channel suspension.Creators can appeal these strikes, but many complain that the response to appeals is inconsistent, and that rejections are deemed “final” without providing insight into the decision-making process or any further recourse. One such incident in 2020 involving high-profile creators drew widespread attention online and resulted in a rare apology and reversal of course by YouTube.

On August 24, 2020, YouTube creator MoistCr1TiKaL (aka Charlie White, who also uses the handle penguinz0), who at the time had nearly six-million subscribers, posted a video in which he reacted to a viral 2014 clip of a supposed “road rage” incident involving people dressed as popular animated characters. The authenticity of the original video is unverified and many viewers suspect it was staged for comedic purposes, as the supposed “violence” it portrays appears to be fake, and the target of the “attack” appears uninjured. Soon after posting his reaction video, White received a strike for “graphic content with intent to shock” and the video was removed. On September 1, White revealed on Twitter that he had appealed the strike, but the appeal was rejected.
White then posted a video expressing his anger at the situation, and pointed out that another high-profile YouTube creator, Markiplier (aka Mark Fischbach), had posted his own reaction to the same viral video nearly four years earlier but had not received a strike. Fischbach agreed with White and asked YouTube to address the inconsistency. To the surprise of both creators, YouTube responded by issuing a strike to Fischbach’s video as well.
The incident resulted in widespread backlash online, and the proliferation of the #AnswerUsYouTube hashtag on Twitter, with fans of both creators demanding a reversal of the strikes and/or more clarity on how the platform makes these enforcement decisions.Company considerations:
  • If erroneous strikes are inevitable given the volume of content being moderated, what are the necessary elements of an appeals process to ensure creators have adequate recourse and receive satisfactory explanations for final decisions?
  • What are the conditions under which off-platform attention to a content moderation decision should result in further manual review and potential reversals outside the normal appeals process?
  • How can similar consideration be afforded to creators who face erroneous strikes and rejected appeals, but do not have large audiences who will put off-platform pressure on the company?
Issue considerations:
  • How can companies balance the desire to directly respond to controversies involving highly popular creators with the desire to employ consistent, equitable processes for all creators?
  • How should platforms harmonize their enforcement decisions when they are alerted to clear contradictions between the decisions on similar pieces of content?
Resolution:On September 2, a few hours after Fischbach announced his strike and White expressed his shock at that decision, the TeamYouTube Twitter account replied to White and to Fischbach with an apology, stating that it had restored both videos and reversed both strikes and calling the initial decision “an over-enforcement of our policies.” Both creators expressed their appreciation for the reversal, while also noting that they hope the company makes changes to prevent similar incidents from occurring in the future. Since such reversals by YouTube are quite rare, and apologies even rarer, the story sparked widespread coverage in a variety of outlets.
Originally posted to the Trust and Safety Foundation website.

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posted at: 12:00am on 17-Feb-2022
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Auguste Rodin's Sculptures Are In The Public Domain; 3D Scans Of Them Should Be, Too

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Auguste Rodin is without doubt one of the greatest sculptors in history. Equally without doubt, his works are now in the public domain, since he died in 1917. Unfortunately, the situation in France is a little more complicated, for reasons the artist and public domain campaigner Cosmo Wenman explains:

Shortly before his death, Rodin willed his estate to the French government, which created the Musée Rodin and assigned to it droit moral (“moral rights”) in Rodin’s oeuvre. By these rights the museum is permitted under French law to manufacture and sell a limited quantity of modern, posthumous bronze casts and represent them as “original” Rodin works. Musée Rodin earns considerable income from sales of such posthumous casts, as well as unlimited, simple reproductions.Musée Rodin’s moral rights apply only within French jurisdictions, and only in very limited circumstances. They do not impinge on the public domain status of Rodin’s works, nor on the public’s right to freely copy them, even within France.
Wenman believes that museums, art galleries and private collectors around the world should make 3D scans of important public domain works and release them freely, thereby becoming “engines of new cultural creation”. The Musée Rodin disagrees, presumably because it is concerned that its monopoly on “original” posthumous casts might be devalued. As a result, it has been fighting for some years Wenman’s efforts to obtain the museum’s 3D scans of Rodin’s works through the courts.Wenman has tweeted an update on his lawsuit. One piece of good news is that thanks to his legal campaign, the scans carried out for the Musée Rodin’s of two famous works – “The Kiss” and “Sleep” – are now freely available. Even better news is that Wenman has discovered the Musée Rodin has scanned its entire collection at high resolution. As he says: “These documents are of world wide interest and immeasurable artistic, academic, cultural, and commercial value. I am going after all of them, for everyone.”It’s regrettable that some museums and galleries are still resisting these attempts to liberate public domain works. When those who are supposedly the guardians of society’s cultural patrimony are fighting to stop people from having full and free access to it, it’s clear that copyright’s poison, based on ownership and exclusion, has entered deep into their souls.Follow me @glynmoody on TwitterDiaspora, or Mastodon.Originally published to the Walled Culture site.

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posted at: 12:00am on 17-Feb-2022
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Some Senators Are Freaking Out Because The White House Is Pitching Some Extremely Minor Police Reforms

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Some senators are getting all angried up about proposed police reforms President Biden possibly might deliver as an executive order. Reporting earlier this month indicated Biden had something planned, but no one involved in breaking the news appeared to have any details.

President Joe Biden plans to sign executive actions on police reform as early as this month, three people familiar with the plans said, as his administration seeks to unilaterally jump-start an issue that is a top priority for a key constituency.The executive actions would follow Biden’s uphill battle to advance voting rights legislation, and they could coincide with a similar effort by some Democratic lawmakers to revive the George Floyd Justice in Policing Act, which stalled on Capitol Hill after attempts to craft a bipartisan measure failed.
NBC spoke to two people "familiar with the discussions" and got nothing useful at all out of them.
The executive actions on policing are still being finalized, the sources said. They did not know how the actions would differ from steps the Justice Department took last year when it imposed new restrictions on chokeholds and “no-knock” warrants.
Really powerful reporting. Apparently a few senators have seen a draft of the proposed executive order and they've decided to peremptorily respond to something that may never happen or may be altered extensively before its issued. This is from Senator Chuck Grassley's site, which implies something horrible is coming and that he and other "Senate Republicans" aren't having any of it.
A group of Senate Republicans, led by Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa), today are expressing serious concern about a proposed executive order (EO) by the Biden Administration that would limit law enforcement access to nonlethal and lifesaving resources, and impose greater restrictions on federal grant dollars. The planned executive order comes amid a national surge in violent crime while the “defund the police” movement has eroded morale and curbed recruiting in police departments across the country.
Fortunately, the letter [PDF] these senators sent to the White House actually has a few details in it. Once again, we have no idea if, when, or in what state the executive order will arrive, but this is apparently what has been seen in the draft version.
Specifically, according to screenshots of a draft of such EO, the Administration would unilaterally impose the following new policies on law enforcement: restrictions to the 1033 program, expanding pattern and practice authority, planned expansion of 18 U.S.C § 242 prosecutions, and conditioning state and local law enforcement grants.
Leaked screenshots of the alleged EO can (barely) be seen here. But what's contained in these accusations (I guess??) doesn't indicate a wholesale disruption of law enforcement enterprise. In fact, most of this has already been done before, issued by presidents and rescinded by their successors or vice versa.1033 restrictions have been tried before. They've never lasted. And those put in place are usually far from effective in preventing local law enforcement agencies from acquiring military gear. President Obama tried it about a human lifetime ago and that effort didn't even survive his term as Commander in Chief."Expanding pattern and practice authority" most likely means removing the handcuffs placed on federal investigations of local law enforcement agencies by President Trump. It's not an expansion. It's just a return to form for the DOJ, which has engaged in "pattern and practice" investigations for decades.The same can be said for "expansion" of 18 USC 242 prosecutions. These "deprivation of rights under color of law" prosecutions have long been part of the DOJ's daily business. It's only in recent years -- under a very pro-law enforcement president -- that they've been dialed back. If anything, this will just be a regression to the mean, rather than the creation of some souped-up prosecutorial machine that goes after bad cops.This all dovetails into some cherry-picked stats stripped of context and served up as a justification for allowing cops to do whatever they want and acquire whatever they want.
Such potential restrictions on the 1033 program would come at a time when law enforcement needs our support more than ever. We have spoken about the unprecedented 30-percent spike in murders that began in the summer of 2020. It continues to this day. In 2021, police officers recorded the highest number of on-duty deaths on record. According to the Fraternal Order of Police, 63 officers were murdered and 346 officers were shot. They also reported ambush-style attacks on law enforcement officers spiked 115 percent in 2021. Police officers will face a grim reality if this EO is enacted and their lifesaving equipment is restricted from them. Violent crime will continue to skyrocket when police officers are unable to stop these crimes and save innocent lives. We cannot understand why any elected official would want to stop law enforcement from safely doing their jobs other than to be able to tell their base of voters they are defunding the police.
There is no effort to defund local law enforcement agencies contained in this executive order. First of all, the federal government simply cannot do that. Funding is a completely local function. It can deny access to federal grants, but this is something that almost never happens. Grants earmarked for law enforcement agencies receive almost zero oversight, much like the 1033 program the Biden Administration may or may not alter. Grassley also appears to have forgotten the previous president threatened to withhold federal grants all the time if cities or their law enforcement agencies angered him.A spike is not a trend and the reason more officers are dying than ever is because of COVID. And it will continue to get worse for officers since so many of them are involved in fighting vaccine mandates and other COVID-related safety measures. And if agencies are having trouble re-staffing, they might want to take long looks in the mirror to understand why that might be. Spending decades destroying trust and community relationships tends to cause recruitment problems. Playing the eternal victim while simultaneously rejecting common sense safety measures during a pandemic isn't going to win the hearts and minds of anyone worth hiring.The letter wraps up with this incredible paragraph:
These hard-left policies are extremely ill-advised, dangerous to Americans, and would only further demoralize law enforcement. Along with the alarming rise in violence against officers, police departments continue to report low morale among officers that is directly related to the dangerous “defund the police” rhetoric. This is careless rhetoric that has lasting consequences to the men and women who risk their lives every day to keep our communities safe, and the EO’s policies are simply an extension of that rhetoric.
These are far from "hard-left" policies. The DOJ has engaged in plenty of what's being proposed while working for right-wing administrations. There's nothing about this that's dangerous to Americans. The only threat it possibly poses is to bad cops. Those are the people these senators are defending by calling any small change to current policies (or reversions to old policies) permanently damaging to law enforcement. To be sure, law enforcement is in mid-crisis. But it's not going to emerge from that crisis using a blend of hands-off oversight and zero accountability. These senators are just shilling for the worst of the worst while pretending it's nothing more than a left-wing power grab designed to grab the attention of Biden's voter base.

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posted at: 12:00am on 16-Feb-2022
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DC Comics Goes To UK High Court Over Trademark Granted To Unilever For 'Wonder Mum'

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Regular Techdirt readers will not be shocked when I say that DC Comics has a long and often ridiculous history when it comes to "protecting" its intellectual property. From trademark bullying over a barbeque joint, to trying to bully a Spanish soccer club for having a bat in its logo, up to waging a brief battle with the family of a dead child because they included the Superman logo on the headstone of the deceased: DC Comics will fight anything remotely like the use of its imagery or naming conventions.And this isn't just check the box stuff, with lawyers playing pretend about having to defend certain IP or risk losing it. For instance, in the UK, DC Comics has taken a failed opposition over a Unilever trademark for "Wonder Mum" to the High Court, claiming the IPO got it wrong. By way of background, Unilever sought approval for a trademark for "Wonder Mum" with the UKIPO in 2021. DC Comics filed an opposition, noting that its trademark for Wonder Woman covered many of the same product types as in the application and then arguing that the marks were too similar. You can see the full decision by the IPO embedded below, but it sides with Unilever. With an incredibly over-tortured analysis as to how similar the marks are, the IPO concludes:

A mother or mum has had one or more children, either because she gave birth to them or has brought up children, performing the role of their mother or mum. I consider that to characterise the word ‘mum’ as a subset of the word ‘woman’ and, on this basis, to conclude that they are highly similar is syllogistic reasoning. A woman is a human adult who was born female or who identifies as female. The word ‘woman’ does not tell one anything about relationships with others. In contrast and by definition, the word ‘mum’ means that that person has a particular relationship with another, or others. Its conceptual impact is one of a particular relationship with children, whereas the conceptual impact of ‘woman’ is that it informs others as to the gender identity of an adult human. Whilst both nouns denote a female, many women have had no children, but all mums have had or brought up children.
It went on from there, with the IPO ultimately deciding that there was no likelihood of confusion. The opposition therefore failed. Again, this is pretty common sense stuff. Nothing in Unilever's use referenced Wonder Woman in any way at all. The idea here was to create a brand that celebrated hard-working moms. While Wonder Woman did apparently have a comic-child with Superman... you know what, I'm not going to even finish that stupid sentence because this is all very dumb.And, yet, DC Comics wants to take that dumb now to the High Court.
DC is now appealing the decision at the High Court in London, claiming the IPO's ruling was 'perverse and unreasonable'.Lawyers for the comic also argue that the cosmetics line would have damaging consequences and would allow 'anyone to release a Wonder Woman movie or comic', claiming 'Mum' is a subset of the word 'Woman'.
That, of course, is not how copyright or trademark laws work. The IPO granting a trademark on "Wonder Mum" doesn't suddenly make it legal for anyone to go make a Wonder Woman movie just by changing the name to Wonder Mum. That's beyond silly. Silly enough that Unilever's lawyers found the time to take a few shots of their own at DC Comics.
Denise McFarland, for Unilever, said there is no risk of the public muddling the two characters, particularly due to Wonder Woman's 'distinctive and unvarying features' - including her minimalistic' costume complete with high boots, a corset, and lasso and shield.Ms McFarland added that, if DC's arguments about 'conceptual similarity' were correct, then using phases such as 'Wonder Aunt' and 'Wonder Niece' would also have to be banned.
Frankly, I wouldn't put it past DC Comics to try to do just that. But in the meantime, hopefully the High Court will slap DC Comics down yet again on this one.

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posted at: 12:00am on 16-Feb-2022
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Eleventh Circuit Smacks Georgia Sheriff Around For Posting 'Don't Trick Or Treat Here' Signs In Sex Offenders' Yards

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In 2018, the sheriff of Butts County, Georgia (no, really), Buford T. Justice Gary Long instructed deputies to ruin the Halloween holiday spirt by planting damning signs in the yards of released sex offenders. The sheriff cited no reason for doing this -- not even extremely anecdotal "evidence." Instead, the signs -- which warned trick or treaters away from the homes of certain county residents -- appeared to be purely punitive: a way to continue to punish criminals who'd already served their time.The sheriff's deputies wandered onto private property and planted signs printed by the department -- ones that said nothing more than "NO TRICK-OR-TREAT AT THIS ADDRESS." The signs were signed (so to speak) by the sheriff, passing themselves off as a "community safety message."

In a now-deleted, self-congratulatory post, Sheriff Gary Long claimed this invasion of privacy and property was lawful good:
As Sheriff, there is nothing more important to me than the safety of your children. This Halloween, my office has placed signs in front of every registered sex offender's house to notify the public that it's a house to avoid. Georgia law forbids registered sex offenders from participating in Halloween, to include decorations on their property. With the Halloween on the square not taking place this year, I fully expect the neighborhoods to be very active with children trick-or-treating. Make sure to avoid houses which are marked with the attached posted signs in front of their residents. I hope you and your children have a safe and enjoyable Halloween. It is an honor and privilege to serve as your sheriff.(These signs are placed In accordance with Georgia Law O.C.G.A. 42-1-12-i(5) which states the Sheriff shall inform the public of the presence of sexual offenders in each community)
Nothing in the law requires this, despite the sheriff's half-assed appeal to authority. The public is already made aware of these facts by sex offender registries, which are accessible with or without Sheriff Long's assistance. If the law truly required the posting of signs like this, they would already have been posted by these residents in order to comply with the conditions of their release. There are plenty of laws in place that deter sex offenders from using a once-a-year celebration to further their sex offending. The lack of evidence or data pointing to a spike in sex offenses against children during Halloween suggests the laws on the books are working. This was nothing more than Sheriff Long being an asshole for no other reason than he could.Four years later, the uppance has finally come for Sheriff Long and his deputies. The Eleventh Circuit Court of Appeals has ruled [PDF] these signs were nothing more than cheaply printed rights violations. (h/t Volokh Conspiracy)The plaintiffs in this case posed a minimal, if not entirely nonexistent, threat to the communities they reside in. Here's how the court describes the three men suing Sheriff Long and his deputies:
Plaintiffs Reginald Holden, Corey McClendon, and Christopher Reed are residents of Butts County and are required to register as sex offenders under O.C.G.A. § 42-1-12, et seq. The Georgia statute not only requires individuals with certain convictions to register as sex offenders, but also requires Georgia to classify registrants based on whether they pose an increased risk of recidivism. Id. § 42-1-14. None of the three plaintiffs have been classified as posing an increased risk of recidivism.In 2004, Holden was convicted of lewd and lascivious battery in Pinellas County, Florida. He has been a homeowner in Butts County since May 2017. He lives by himself and works as a warehouse coordinator.In 2001, McClendon was convicted of statutory rape of a minor in Butts County. He lives with his daughter and his parents who own the home where they all reside. He holds a commercial driver’s license.In 2007, Reed was convicted of sexual assault of a minor in Cook County, Illinois. He works as a truck driver and has lived with his father, who owns their home, since 2011. In the 2020 order now on appeal, the district court found that all three plaintiffs “have, by all accounts, been rehabilitated and are leading productive lives.”
Sheriff Gary Long was aware of this when he made and posted the signs.
The Sheriff does not dispute this, nor does the record support a contrary finding.
Sheriff Gary Long was also aware that sex offenders don't offend more often on Halloween.
Since 2013, Long had been Sheriff in Butts County and in that time did not know of any incidents in Butts County involving registered sex offenders on Halloween. In fact, during his six-year tenure as Sheriff, there were no issues with any registered sex offenders in Butts County having unauthorized contact or reoffending with minors at any time.
So, the signs were clearly made and distributed under the color of law for the sole purpose of heaping more stigma on stigmatized residents -- all under the guise of public safety. The sheriff had no lawful authority to do this. But he did it anyway.The court is not happy with Sheriff Long's actions. Despite being constrained by the limits of the lawsuit, which does not seek damages or dispute any finding of qualified immunity, the Eleventh Circuit makes it clear this is some bullshit, Constitutionally speaking. This is compelled speech, forced on certain members of Butts County by Sheriff Gary Long. And there's nearly 50-year-old Supreme Court precedent on hand that made it clear the sheriff should never have engaged in this activity.
In Wooley, the Supreme Court held that it was unconstitutional for the State of New Hampshire to prosecute a citizen for covering the State motto, “Live Free or Die,” on his license plate. Specifically, the Court held that a state could not “constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.” The Court stated that the New Hampshire statute “in effect requires that appellees use their private property as a ‘mobile billboard’ for the State’s ideological message or suffer a penalty.”This case is materially similar to Wooley. The Sheriff’s warning signs, like the State motto on the New Hampshire license plate, are government speech. Indeed, the signs expressly bore the imprimatur of government, stating that they were “a community safety message from Butts County Sheriff Gary Long.” The deputies placed the signs despite the homeowners’ and/or residents’ objections. The deputies explained, both verbally and through the accompanying leaflet, that only the Sheriff’s Office could remove the signs.
To sum up:
The Sheriff’s warning signs are a classic example of compelled government speech.
Sheriff Gary Long had no justification for this imposition on county residents, even given the state's obvious (and justifiable) desire to prevent the sexual abuse of children. The sheriff's office had other ways of informing Butts County residents of where sex offenders were located. The signs were completely unnecessary. Nothing the sheriff's office submitted to the court shows this punitive measure was the only (or least intrusive) way to ensure the safety of trick-or-treating children.
Assuming that yard signs alerting people to the residences of registered sex offenders on Halloween would prevent the sexual abuse of children (which, we repeat, is not supported by any record evidence), the signs are not tailored narrowly enough. Sheriff Long testified that the sex-offender registry, which contains each registrant’s name, address, and photograph, is available on the State of Georgia’s website, on the Butts County website, at Butts County administrative buildings, and at the Butts County Superior Court Clerk’s Office. The Sheriff has made the sex offender registry widely available through government sources, diminishing the need to require residents to disseminate the same information in yard signs on their private property. And, while “narrowly tailored” does not mean “perfectly tailored,” the Sheriff has not met his burden to show the yard signs were narrowly tailored because he has not offered evidence that any of the yard signs would accomplish the compelling purpose of protecting children from sexual abuse.
Sheriff Long tried arguing the government had the right to post whatever it wanted in "public rights of way," his way of describing the areas (towards the end of driveways or near sidewalks) where deputies posted signs. This footnote makes it clear this is the sheriff's Hail Mary play -- one the court easily bats down in the 11th Circuit end zone.
Before placing the signs in 2018, the deputies did not conduct research to assure themselves the signs would be placed in rights-of-way. In 2019, for the preliminary injunction hearing, the Sheriff introduced some poorly scanned copies of subdivision plats that do not include any keys, legends, or labels; the plat maps are not self-explanatory. He also introduced aerial Google Maps photos of roads with lines drawn across them. But those maps do not indicate who owns the underlying fee where the lines are drawn, or that the lines represent right-of-way easements—much less who possesses any easements or for what purpose.
The end result is a reversal of the lower court's decision in favor of Sheriff Long and his Halloween-adjacent dickishness. The case travels back down the federal pipe to the district court with instructions to find in favor of the plaintiffs and their request for a permanent injunction prohibiting the sheriff from pulling this stunt in the future. The ruling is clear: the government can't force people to say things they don't want to by planting signs in their yards. Sheriff Long will just have to find some other, more constitutional way to harass residents he doesn't like next Halloween.

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posted at: 12:00am on 15-Feb-2022
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YouTube's Content ID System Flags, Demonetizes Video Of Cat Purring

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YouTube's Content ID automated copyright system sucks. There, I said it. Any review of the different posts we've done specifically on the topic of Content ID can only leave you with one impression: the system doesn't work. Not that it never works, of course, but when you build a system that is designed specifically to allow 3rd parties to take down speech content, that system had damned well better not be wide the hell open for abuse or laughable errors. Well, guess what? You've got your music labels getting works taken down that were specifically designed not to not be infringing, news organizations managed to claim their own live streams as copyright infringing, and music labels being able to demonetize videos of a guy singing public domain Christmas carols. It's all very stupid, very much the tip of the iceberg, and very much an indication that Content ID, in its current state, is broken.What's that, you say? You need more? Fine, a guy uploaded videos of his cat purring and those got claimed by two different labels as infringing on their copyrights.

YouTube's automated takedown tool is known for its flaws, but this week it crossed a line by attacking a purring cat. According to YouTube's Content-ID system both EMI Publishing and PRS own the rights to a 12 second purring loop. Last March, YouTube user Digihaven uploaded one hour of video loops featuring his cat Phantom, purring, as cats do. The video didn’t go viral but appealed to a niche public, and more recently also two major music publishers.Nearly a year after the video was posted Digihaven was informed by YouTube that Phantom is “pirate” purring. Apparently, part of the 12 second loop belongs to EMI Music Publishing and PRS.
Yes, this is sort of funny, but only after you've encountered so many Content ID problems just like this that you become dead inside, like me. I've made statements like this before, but I'll repeat it again: your automated copyright system doesn't have to be perfect, but if your system is so flawed that a 12 second video of a cat purring can be flagged by multiple music labels then your system sucks so badly that you need to completely start from scratch on a new one.Now, I've done some haphazard searching for songs entitled "Focus" by artists on the EMI label and, frankly, I gave up. There are a ton of search results for songs that include that word in their titles. That being said, I'm fairly certain that EMI doesn't have a band with a song that is 12 seconds of a cat purring or, if that in fact is a thing, that such a video would be copyrightable. In other words, either way, EMI and PRS should not be monetizing Phantom the Cat's musical stylings.
“I’m sure EMI/PRS made Phantom a sad kitty. It seems like companies such as EMI are pirating ads on people’s legit videos, so I’m wondering if they apologize to, or reimburse people for those false claims,” he tells TF.Hoping to clear his cat’s name Digihaven decided to file a dispute. This was partially successful, as EMI lifted its claim shortly before publication of this article.
Which, absurdly, means now Phantom just has to figure out what PRS' problem is.Or, hey, maybe we could all just admit together that Content ID in its current form doesn't work and should be done away with in some organized and planned fashioned. Replace it with a better automated system. Replace it with more humans doing moderation. Admit that content moderation at scale is completely impossible and stop trying.Anything would be better than living under a automated system we all know sucks.

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posted at: 12:00am on 15-Feb-2022
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This Week In Techdirt History: February 6th - 12th

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Five Years AgoThis week in 2017, in the wake of Trump's racist executive order banning people from seven countries from entering the US, pretty much the entire tech industry stood up in opposition. Meanwhile, Ajit Pai was getting quickly to work saying one thing and doing another (not unlike the broadband providers themselves. The FBI was revealed to have even more surveillance powers than we thought, and was also changing its FOIA policies to be even more hostile.Ten Years AgoThis week in 2012, more dominoes were falling on ACTA: the Romanian Prime Minister admitted he had no idea why Romania signed it, the Czech government suspended ratification, then Latvia did the same, and even Germany got cold feet — and soon the mainstream financial press was writing off ACTA as dead. Meanwhile, we took a look at who was still supporting SOPA and why, while Lamar Smith was defending another terrible internet bill, and the RIAA was just lashing out at everyone.Fifteen Years AgoThis week in 2007, we looked at the collateral damage from Viacom's wave of YouTube takedowns and a top NBC executive's hatred of the site, while one guy was claiming to own the Electric Slide and issuing DMCA notices on wedding videos. We also got a closer look at how little it takes for the RIAA to fire off a flimsy DMCA notice, while the RIAA was spending its time trying to tell people they should be paying more for CDs. Meanwhile, we took a look at just how completely bogus the MPAA's claims of a Canadian camcording epidemic were.

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posted at: 12:00am on 13-Feb-2022
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Danish Court Confirms Insane 'Little Mermaid' Copyright Ruling Against Newspaper Over Cartoon

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If you haven't been a long time Techdirt reader, you'll probably hear me say that there is a copyright infringement court case in Denmark and immediately wonder, "Yeesh, what did Disney do now?" But this is not a story about Disney. This is a story about the heirs of Edvard Eriksen, creator of a bronze statue of The Little Mermaid, inspired by the classic Hans Christian Andersen fairy tale, and their inability to let anyone in any way depict the statue or anything similar without being accosted in copyright actions. Most of the bullying actions by Eriksen's heirs have been, unbelievably, against other towns throughout the world for creating their own Little Mermaid statues: Greenville, Michigan and the Danish city of Asaa for example.But less known are all the times Eriksen's heirs have gone after publications for showing pictures or other depictions of the statue. I won't pretend to be an expert in Danish copyright law, but if that country's laws are such that a newspaper or magazine cannot show a picture of one of the country's most famous landmarks, then that law is silly and should be changed or amended. Lest you think I must have this wrong, you can see a recent story of, not one, but two courts ruling that a newspaper must compensate Eriksen's heirs for a cartoon that depicted the statue on its pages.

An appeals court in Denmark has increased the compensation a newspaper was ordered to pay for violating the copyright of Copenhagen's The Little Mermaid statue with a cartoon depicting the bronze landmark as a zombie and a photo of it with a facemask.The Berlingske newspaper published the cartoon in 2019 to illustrate an article about the debate culture in Denmark and used the photo in 2020 to represent a link between the far right and people fearing COVID-19.
For those of us reading this news in America, as well as many other nations, this all looks completely laughable. This is purely free speech stuff, protected in America by the First Amendment. Even getting past that, a cartoon of a statue is not a recreation of that statue, therefore copyright wouldn't even really apply. Plus it's parody and being used for commentary. Nothing about this makes sense.And, yet, it must in Denmark because this 2nd court not only affirmed the ruling of the lower court but actually increased the compensation the newspaper was ordered to pay Eriksen's heirs.
Both were found to be infringements of the Danish Copyright Act. Copenhagen’s district court ordered the newspaper in 2020 to pay the heirs of Danish sculptor Edvard Eriksen 285,000 kroner ($44,000) in compensation. The appeals court on Wednesday raised the amount to 300,000 kroner ($46,000).In a statement, the Eastern High Court in the Danish capital agreed with the lower court that “there was a violation of copyright" in the newspaper's actions. It did not give a reason for increasing the compensation amount but noted that Berlingske is a commercial venture since it wants to sell newspapers.
Again, this is all absurd. If the above rulings truly do comport with Danish copyright law, then all that suggests is that there needs to be an active movement in Denmark to amend the law. And, just to make this all the more frustrating, the copyright protections in Denmark are familiar: 70 years after the death of the author. In this case, that means Eriksen's heirs will only have this ability to bilk others for cash payments for the statue for another seven years.

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posted at: 12:00am on 12-Feb-2022
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Analog Books Go From Strength To Strength: Helped, Not Hindered, By The Digital World

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Many of the worst ideas in recent copyright laws have been driven by some influential companies’ fear of the transition from analog to digital. Whereas analog formats – vinyl, books, cinematic releases of films – are relatively easy to control, digital ones are not. Once a creation is in a digital form, anyone can make copies and distribute them on the Internet. Traditional copyright industries seem to think that digital versions of everything will be freely available everywhere, and that no one will ever buy analog versions. That’s not the case with vinyl records, and a recent post on Publisher’s Weekly suggests that analog books too, far from dying, are going from strength to strength:

Led by the fiction categories, unit sales of print books rose 8.9% in 2021 over 2020 at outlets that report to NPD BookScan. Units sold were 825.7 million last year, up from 757.9 million in 2020. BookScan captures approximately 85% of all print sales. In 2020, unit sales were up 8.2% over 2019, which saw 693.7 million print units sold.The young adult fiction segment had the largest increase, with unit sales jumping 30.7%, while adult fiction sales rose 25.5%. Sales in the juvenile fiction category increased 9.6%.
The two years of increased sales is part of a longer-term trend, as this article from the New York Times in 2015 indicates:
the digital apocalypse never arrived, or at least not on schedule. While analysts once predicted that e-books would overtake print by 2015, digital sales have instead slowed sharply.Now, there are signs that some e-book adopters are returning to print, or becoming hybrid readers, who juggle devices and paper. E-book sales fell by 10 percent in the first five months of this year, according to the Association of American Publishers, which collects data from nearly 1,200 publishers. Digital books accounted last year for around 20 percent of the market, roughly the same as they did a few years ago.
Digital formats possess certain advantages over analog ones, notably convenience. Today, you can access tens of millions of tracks online with music streaming services, and carry around thousands of ebooks on your phone. But many people evidently continue to appreciate the physicality of analog books, just as they like and buy vinyl records. The Publisher’s Weekly article also shows how the digital world is driving analog sales:
Gains in the young adult category were helped by several titles that benefitted from attention drummed up by BookTok, users of the social media platform TikTok who post about their favorite books. They Both Die at the End by Adam Silvera, released in December 2018, was the #1 title in the category, selling nearly 685,000 copies.
As a recent post on Walled Culture noted, if publishing companies were less paranoid about people sharing snippets of the books they love, on BookTok and elsewhere, the already significant analog sales they produce could be even higher. If the copyright industries want to derive the maximum benefit from the online world, they need to be brave, not bullying, as they so often are today.Follow me @glynmoody on TwitterDiaspora, or Mastodon.Originally posted to Walled Culture.

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posted at: 12:00am on 12-Feb-2022
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The Top Ten Mistakes Senators Made During Today's EARN IT Markup

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Today, the Senate Judiciary Committee unanimously approved the EARN IT Act and sent that legislation to the Senate floor. As drafted, the bill will be a disaster. Only by monitoring what users communicate could tech services avoid vast new liability, and only by abandoning, or compromising, end-to-end encryption, could they implement such monitoring. Thus, the bill poses a dire threat to the privacy, security and safety of law-abiding Internet users around the world, especially those whose lives depend on having messaging tools that governments cannot crack. Aiding such dissidents is precisely why it was the U.S. government that initially funded the development of the end-to-end encryption (E2EE) now found in Signal, Whatsapp and other such tools. Even worse, the bill will do the opposite of what it claims: instead of helping law enforcement crack down on child sexual abuse material (CSAM), the bill will actually help the most odious criminals walk free.As with the July 2020 markup of the last Congress’s version of this bill, the vote was unanimous. This time, no amendments were adopted; indeed, none were even put up for a vote. We knew there wouldn’t be much time for discussion because Sen. Dick Durbin kicked off the discussion by noting that Sen. Lindsey Graham would have to leave soon for a floor vote. The Committee didn’t bother holding a hearing on the bill before rushing it to markup. The one and only hearing on the bill occurred just six days after its introduction back in March 2020. The Committee thereafter made major (but largely cosmetic) changes to the bill, leaving its Members more confused than ever about what the bill actually does. Today’s markup was a singular low-point in the history of what is supposed to be one of the most serious bodies in Congress. It showed that there is nothing remotely judicious about the Judiciary Committee; that most of its members have little understanding of the Internet and even less of how the, ahem, judiciary actually works; and, saddest of all, that they simply do not care.Here are the top ten legal and technical mistakes the Committee made today.Mistake #1: “Encryption Is not Threatened by This Bill”Strong encryption is essential to online life today. It protects our commerce and our communications from the prying eyes of criminals, hostile authorian regimes and other malicious actors.Sen. Richard Blumenthal called encryption a “red herring,” relying on his work with Sen. Leahy’s office to implement language from his 2020 amendment to the previous version of EARN IT (even as he admitted to a reporter that encryption was a target). Leahy’s 2020 amendment aimed to preserve companies’ ability to offer secure encryption in their products by providing that a company could not be found in violation of the law because it utilized secure encryption, doesn’t have the ability to decrypt communications, or fails to undermine the security of their encryption (for example, by building in a backdoor for use by law enforcement). But while the 2022 EARN IT Act contains the same list of protected activities, the authors snuck in new language that undermines that very protection. This version of the bill says that those activities can’t be an independent basis of liability, but that courts can consider them as evidence while proving the civil and criminal claims permitted by the bill’s provisions. That’s a big deal. EARN IT opens the door to liability under an enormous number of state civil and criminal laws, some of which require (or could require, if state legislatures so choose) a showing that a company was only reckless in its actions—a far lower showing than federal law’s requirement that a defendant have acted “knowingly.” If a court can consider the use of encryption, or failure to create security flaws in that encryption, as evidence that a company was “reckless,” it is effectively the same as imposing liability for encryption itself. No sane company would take the chance of being found liable for transmitting CSAM; they’ll just stop offering strong encryption instead. Mistake #2: The Bill’s Sponsors Readily Conceded that EARN IT Would Coerce Monitoring for CSAMEARN IT’s sponsors repeatedly complained that tech companies aren’t doing enough to monitor for CSAM—and that their goal was to force them to do more. As Sen. Blumenthal noted, free software (PhotoDNA) makes it easy to detect CSAM, and it’s simply outrageous that some sites aren’t even using it. He didn’t get specific but we will: both Parler and Gettr, the alternative social networks favored by the MAGA right, have refused to use PhotoDNA. When asked about it, Parler’s COO told The Washington Post: “I don’t look for that content, so why should I know it exists?" The Stanford Internet Observatory’s David Thiel responded:

We agree completely—morally. So why, as Berin asked when EARN IT was first introduced, doesn’t Congress just directly mandate the use of such easy filtering tools? The answer lies in understanding why Parler and Gettr can get away with this today. Back in 2008, Congress required tech companies that become aware of CSAM to report it immediately to NCMEC, the quasi-governmental clearinghouse that administers the database of CSAM hashes used by PhotoDNA to identify known CSAM. Instead of requiring companies to monitor for CSAM, Congress said exactly the opposite: nothing in 18 U.S.C. § 2258A “shall be construed to require a provider to monitor [for CSAM].”Why? Was Congress soft on child predators back then? Obviously not. Just the opposite: they understood that requiring tech companies to conduct searches for CSAM would make them state actors subject to the Fourth Amendment’s warrant requirement—and they didn’t want to jeopardize criminal prosecutions. Conceding that the purpose of EARN IT Act is to coerce searches for CSAM is a mistake, a colossal one, because it invites courts to rule that searching wasn’t voluntary.Mistake #3: The Leahy Amendment Alone Won’t Protect Privacy & Security, or Avoid Triggering the Fourth AmendmentWhile Sen. Leahy’s 2020 amendment was a positive step towards protecting the privacy and security of online communications, and Lee’s proposal today to revive it is welcome, it was always an incomplete solution. While it protected companies against liability for offering encryption or failing to undermine the security of their encryption, it did not protect the refusal to conduct monitoring of user communications. A company offering E2EE products might still be coerced into compromising the security of its devices by scanning user communications “client-side” (i.e., on the device) prior to encrypting sent communications or after decrypting received communications. Apple recently proposed such a technology for such client-side scanning, raising concerns from privacy advocates and civil society groups. For its part, Apple assured that safeguards would limit use of the system to known CSAM to prevent the capability from being abused by foreign governments or rogue actors. But the capacity to conduct such surveillance presents an inherent risk of being exploited by malicious actors. Some companies may be able to successfully safeguard such surveillance architecture from misuse or exploitation. However, resources and approaches will vary across companies, and it is a virtual certainty that not all of them will be successful. And if done under coercion, create a risk that such efforts will be ruled state action requiring a warrant under the Fourth Amendment. Our letter to the Committee proposes an easy way to expand the Leahy amendment to ensure that companies won’t be held liable for not monitoring user content: borrow language directly from Section 2258A(f).Mistake #4: EARN IT’s Sponsors Just Don’t Understand the Fourth Amendment ProblemSen. Blumenthal insisted, repeatedly, that EARN IT contained no explicit requirement not to use encryption. The original version of the bill would, indeed, have allowed a commission to develop “best practices” that would be “required” as conditions of “earning” back the Section 230 immunity tech companies need to operate—hence the bill’s name. But dropping that concept didn’t really make the bill less coercive because the commission and its recommendations were always a sideshow. The bill has always coerced monitoring of user communications—and, to do that, the abandonment or bypassing of strong encryption—indirectly, through the threat of vast legal liability for not doing enough to stop the spread of CSAM. Blumenthal simply misunderstands how the courts assess whether a company is conducting unconstitutional warrantless searches as a “government actor.” “Even when a search is not required by law, … if a statute or regulation so strongly encourages a private party to conduct a search that the search is not ‘primarily the result of private initiative,’ then the Fourth Amendment applies.” U.S. v. Stevenson, 727 F.3d 826, 829 (8th Cir. 2013) (quoting Skinner v. Railway Labor Executives' Assn, 489 U.S. 602, 615 (1989)). In that case, the court found that AOL was not a government actor because it “began using the filtering process for business reasons: to detect files that threaten the operation of AOL's network, like malware and spam, as well as files containing what the affidavit describes as “reputational” threats, like images depicting child pornography.” AOL insisted that it “operate[d] its file-scanning program independently of any government program designed to identify either sex-offenders or images of child pornography, and the government never asked AOL to scan Stevenson's e-mail.” Id. By contrast, every time EARN IT’s supporters explain their bill, they make clear that they intend to force companies to search user communications in ways they’re not doing today.Mistake #2 Again: EARN IT’s Sponsors Make Clear that Coercion Is the PointIn his opening remarks today, Sen. Graham didn’t hide the ball:
"Our goal is to tell the social media companies 'get involved and stop this crap. And if you don't take responsibility for what's on your platform, then Section 230 will not be there for you.' And it's never going to end until we change the game."
Sen. Chris Coons added that he is “hopeful that this will send a strong signal that technology companies … need to do more.” And so on and so forth.If they had any idea what they were doing, if they understood the Fourth Amendment issue, these Senators would never admit that they’re using liability as a cudgel to force companies to take affirmative steps to combat CSAM. By making intentions unmistakable, they’ve given the most vile criminals exactly what they need to to challenge the admissibility of CSAM evidence resulting from companies “getting involved” and “doing more.” Though some companies, concerned with negative publicity, may tell courts that they conducted searches of user communications for “business reasons,” we know what defendants will argue: the companies’ “business reason” is avoiding the wide, loose liability that EARN IT subjected them to. EARN IT’s sponsors said so.Mistake #5: EARN IT’s Sponsors Misunderstanding How Liability Would Work Except for Sen. Mike Lee, no one on the Committee seemed to understand what kind of liability rolling back Section 230 immunity, as EARN IT does, would create. Sen. Blumenthal repeatedly claimed that the bill requires actual knowledge. One of the bill’s amendments (the new Section 230(e)(6)(A)) would, indeed, require actual knowledge by enabling civil claims under 18 U.S.C. § 2255 “if the conduct underlying the claim constitutes a violation of section 2252 or section 2252A,” both of which contain knowledge requirements. This amendment is certainly an improvement over the original version of EARN IT, which would have explicitly allowed 2255 claims under a recklessness standard. But the two other changes to Section 230 clearly don’t require knowledge. As Sen. Lee pointed out today, a church could be sued, or even prosecuted, simply because someone posted CSAM on its bulletin board. Multiple existing state laws already create liability based on something less than actual knowledge of CSAM. As Lee noted, a state could pass a law creating strict liability for hosting CSAM. Allowing states to hold websites liable for recklessness (or even less) while claiming that the bill requires actual knowledge is simply dishonest. All these less-than-knowledge standards will have the same result: coercing sites into monitoring user communications, and into abandoning strong encryption as an obstacle to such monitoring. Blumenthal made it clear that this is precisely what he intends, saying: “Other states may wish to follow [those using the “recklessness” standard]. As Justice Brandeis said, states are the laboratories of democracy … and as a former state attorney general I welcome states using that flexibility. I would be loath to straightjacket them in their adoption of different standards.”Mistake #6: “This Is a Criminal statute, This Is Not Civil Liability”So said Sen. Lindsey Graham, apparently forgetting what his own bill says. Sen. Dianne Feinstein added her own misunderstanding, saying that she “didn’t know that there was a blanket immunity in this area of the law.” But if either of those statements were true, the EARN IT Act wouldn’t really do much at all. Section 230 has always explicitly carved out federal criminal law from its immunities; companies can already be charged for knowing distribution of child sexual abuse material (CSAM) or child sexual exploitation (CSE) under federal criminal statutes. Indeed, Backpage and its founders were criminally prosecuted even without SESTA’s 2017 changes to Section 230. If the federal government needs assistance in enforcing those laws, it could adopt Sen. Mike Lee’s amendment to permit state criminal prosecutions when the conduct would constitute a violation of federal law. Better yet, the Attorney General could use an existing federal law (28 U.S.C. § 543) to deputize state, local, and tribal prosecutors as “special attorneys” empowered to prosecute violations of federal law. Why no AG has bothered to do so yet is unclear.What is clear is that EARN IT isn’t just about criminal law. EARN IT expressly carves out civil claims under certain federal statutes, and also under whatever state laws arguably relate to “the advertisement, promotion, presentation, distribution, or solicitation of child sexual abuse material” as defined by federal law. Those laws can and do vary, not only with respect to the substance of what is prohibited, but also the mental state required for liability. This expansive breadth of potential civil liability is part of what makes this bill so dangerous in the first place.Mistake #7: “If They Can Censor Conservatives, They Can Stop CSAM!”As at the 2020 markup, Sen. Lee seemed to understand most clearly how EARN IT would work, the Fourth Amendment problems it raises, and how to fix at least some of them. A former Supreme Court Clerk, Lee has a sharp legal mind, but he seems to misunderstand much of how the bill would work in practice, and how content moderation works more generally.Lee complained that, if Big Tech companies can be so aggressive in “censoring” speech they don’t like, surely they can do the same for CSAM. He’s mixing apples and oranges in two ways. First, CSAM is the digital equivalent of radioactive waste: if a platform gains knowledge of it, it must take it down immediately and report it to NCMEC, and faces stiff criminal penalties if it doesn’t. And while “free speech” platforms like Parler and Gettr refuse to proactively monitor for CSAM (as discussed below), every mainstream service goes out of its way to stamp out CSAM on unencrypted service. Like AOL in the Stevenson case, they do so for business and reputational reasons.By contrast no website even tries to block all “conservative” speech; rather, mainstream platforms must make difficult judgment calls about taking down politically charged content, such as Trump’s account only after he incited an insurrection in an attempted coup and misinformation about the 2020 election being stolen. Republicans are mad about where tech companies draw such lines.Second, social media platforms can only moderate content that they can monitor. Signal can’t moderate user content and that is precisely the point: end-to-end-encryption means that no one other than the parties to a communication can see it. Unlike normal communications, which may be protected by lesser forms of “encryption,” the provider isn’t standing in the middle of the communication and it doesn’t have the keys to unlock the messages that it is passing back and forth. Yes, some users will abuse E2EE to share CSAM, but the alternative is to ban it for everyone. There simply isn’t a middle ground.There may indeed be more that some tech companies could do about content they can see—both public content like social media posts and private content like messages (protected by something less than E2EE). But their being aggressive about, say, misinformation about COVID or the 2020 election has nothing whatsoever to do with the cold, hard reality that they can’t moderate content protected by strong encryption.It’s hard to tell whether Lee understands these distinctions. Maybe not. Maybe he’s just looking to wave the bloody shirt of “censorship” again. Maybe he’s saying the same thing everyone else is saying, essentially: “Ah, yes, but if only Facebook, Apple and Google didn’t use end-to-end encryption for their messaging services, then they could monitor those for CSAM just like they monitor and moderate other content!” Proposing to amend the bill to require actual knowledge under both state and federal law suggests he doesn’t want this result, but who knows?Mistake #8: Assuming the Fourth Amendment Won’t Require Warrants If It AppliesVisibility to the provider relates to one important legal distinction not discussed at all today—but that may well explain why the bill’s sponsors don’t seem to care about Fourth Amendment concerns. It’s an argument Senate staffers have used to defend the bill since its introduction. Even if compulsion through vast legal liability did make tech companies government actors, the Fourth Amendment requires a warrant only for searches of material for which users have a reasonable expectation of privacy. Kyllo v. United States, 533 U.S. 27, 33 (2001); see Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Courts long held that users had no such expectations for digital messages like email held by third parties. But that began to change in 2010. If searches of emails trigger the Fourth Amendment—and U.S. v. Warshak, 631 F.3d 266 (6th Cir. 2010) said they do—searches of private messaging certainly would. The entire purpose of E2EE is to give users rock-solid expectations of privacy in their communications. More recently, the Supreme Court has said that, “given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection.” Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). These cases draw the line Sen. Lee is missing: no, of course users don’t have reasonable expectations of privacy in public social media posts—which is what he’s talking about when he points to “censorship” of conservative speech. EARN IT could avoid the Fourth Amendment by focusing on content providers can see, but it doesn’t, because it’s intended to force companies to be able to see all user communications.Mistake #9: What They didn’t Discuss: Anonymous SpeechThe Committee didn’t discuss how EARN IT would affect speech protected by the First Amendment. No, of course CSAM isn’t protected speech, but the bill would affect lawful speech by law-abiding citizens—primarily by restricting anonymous speech. Critically, EARN IT doesn’t just create liability for trafficking in CSAM. The bill also creates liability for failing to stop communications that “solicit” or “promote” CSAM. Software like PhotoDNA can flag CSAM (by matching cryptographic hashes to known images in NCMEC’s database) but identifying “solicitation” or “promotion” is infinitely more complicated. Every flirtatious conversation between two adult users could be “solicitation” of CSAM—or it might be two adults doing adult things. (Adults sext each other—a lot. Get over it!) But “on the Internet, nobody knows you’re a dog”—and there’s no sure way to distinguish between adults and children. The federal government tried to do just that in the Communications Decency Act (CDA) of 1996 (nearly all of which, except Section 230, was struck down) and the Child Online Protection Act (COPA) of 1998. Both laws were struck down as infringing on the First Amendment right to accessing lawful content anonymously. EARN IT accomplishes much the same thing indirectly, the same way it attacks encryption: basing liability on anything less than knowledge means you can be sued for not actively monitoring, or for not age-verifying users, especially when the risks are particularly high (such as when you “should have known” you were dealing with minor users). Indeed, EARN IT is even more constitutionally suspect. At least COPA focused on content deemed “harmful to minors.” Instead of requiring age-gating for sites that offered porn and sex-related content (e.g., LGBTQ teen health), EARN IT would affect all users of private communications services, regardless of the nature of the content they access or exchange. Again, the point of E2EE is that the service provider has no way of knowing whether messages are innocent chatter or CSAM. EARN IT could raise other novel First Amendment problems. Companies could be held liable not only for failing to age-verify all users—a clear First Amendment violation— but also for failing to bar minors from using E2EE services so that their communications can be monitored or failing to use client-side monitoring on minors’ devices, and even failing to segregate adults from minors so they can’t communicate with each other. Without the Lee Amendment, EARN IT leaves states free to base liability on explicitly requiring age-verification or limits on what minors can do. Mistake #10: Claiming the Bill Is “Narrowly Crafted”If you’ve read this far, Sen. Blumenthal’s stubborn insistence that this bill is a “narrowly targeted approach” should make you laugh—or sigh. If he truly believes that, either he hasn’t adequately thought about what this bill really does or he’s so confident in his own genius that he can simply ignore the chorus of protest from civil liberties groups, privacy advocates, human rights activists, minority groups, and civil society—all of whom are saying that this bill is bad policy.If he doesn’t truly believe what he’s saying, well… that’s another problem entirely.Bonus Mistake!: A Postscript About the Real CSAM problemLee never mentioned that the only significant social media services that don’t take basic measures to identify and block CSAM are Parler, Gettr and other fringe sites celebrated by Republicans as “neutral public fora” for “free speech.” Has any Congressional Republican sent letters to these sites asking why they refuse to use PhotoDNA? Instead, Lee did join Rep. Ken Buck in March 2021 to interrogate Apple about its decision to take down the Parler app. Answer: Parler hadn’t bothered setting any meaningful content moderation system. Only after Parler agreed to start doing some moderation of what appeared in its Apple app (but not its website) did Apple reinstate the app.

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posted at: 12:00am on 11-Feb-2022
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Court (For Now) Says NY Times Can Publish Project Veritas Documents

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We've talked about the hypocrite grifters who run Project Veritas, who, even when they have legitimate concerns about attacks on their own free speech, ran to court to try to silence the NY Times. Bizarrely, a NY judge granted Project Veritas' demand for prior restraint against the NY Times falsely claiming that attorney-client material could not be published.The NY Times appealed that ruling and now a court has... not overturned the original ruling, but for now said that the NY Times can publish the documents, saying that it will not enforce the original ruling until an appeal can be heard. This is... better than nothing, but fully overturning the original ridiculous ruling would have been much better. Because it was clearly prior restraint. But, at least for now, the prior restraint will not be enforced.Still, the response from Project Veritas deserves separate comment, because it's just naively stupid:

In a phone interview on Thursday, Mr. O'Keefe said: Defamation is not a First Amendment-protected right; publishing the other litigants' attorney-client privileged documents is not a protected First Amendment right.
While it's accurate that defamation is not protected by the 1st Amendment, he's wrong that publishing attorney-client communications is -- in most cases -- very much protected. He's fuzzing the lines here, by basically arguing that because Project Veritas is, separately, suing the NY Times, that bans the NY Times from publishing any attorney-client privileged material it obtains via standard reporting tactics.But that fuzzing suggests something that just isn't true: that there's some exception to the 1st Amendment from publishing attorney-client materials. That's wrong. The attorney-client privilege is with respect to having to disclose certain documents to another party in litigation. If you can successfully show that the documents are privileged, they don't need to be disclosed to the other party. That's the extent of the privilege. It has no bearing whatsoever on whether or not someone else obtaining those materials through other means has a right to publish them. Of course they do and the 1st Amendment protects that.And, I should just note, that considering Project Veritas' main method of operating is trying to obtain private documents, or record secret conversations, it is bizarre beyond belief that Project Veritas is literally claiming that private material has some sort of 1st Amendment protection. Because that seems incredibly likely to come back and bite Project Veritas at a later time. Of course, considering they're hypocritical grifters with no fundamental principles beyond "attack people with views we don't like," I guess it's not surprising that their viewpoint on free speech and the 1st Amendment shifts depending on who it's protecting.

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Emails Show The LAPD Cut Ties With The Citizen App After Its Started A Vigilante Manhunt Targeting An Innocent Person

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It didn't take long for Citizen -- the app that once wanted to be a cop -- to wear out its law enforcement welcome. The crime reporting app has made several missteps since its inception, beginning with its original branding as "Vigilante."Having been booted from app stores for encouraging (unsurprisingly) vigilantism, the company rebranded as "Citizen," hooking um… citizens up with live feeds of crime reports from city residents as well as transcriptions of police scanner output. It also paid citizens to show up uninvited at crime scenes to report on developing situations.But it never forgot its vigilante origins. When wildfires swept across Southern California last year, Citizen's principals decided it was time to put the "crime" back in "crime reporting app." The problem went all the way to the top, with Citizen CEO Andrew Frame dropping into Slack conversations and live streams, imploring employees and app users to "FIND THIS FUCK."The problem was Citizen had identified the wrong "FUCK." The person the app claimed was responsible for the wildfire wasn't actually the culprit. Law enforcement later tracked down a better suspect, one who had actually generated some evidence implicating them.After calling an innocent person a "FUCK" and a "devil" in need of finding, Citizen was forced to walk back its vigilantism and rehabilitate its image. Unfortunately for Citizen, this act managed to burn bridges with local law enforcement just as competently as the wildfire it had used to start a vastly ill-conceived manhunt.As Joseph Cox reports for Motherboard, this act ignited the last straw that acted as a bridge between Citizen and one of the nation's largest law enforcement agencies, the Los Angeles Police Department. Internal communications obtained by Vice show the LAPD decided to cut ties with the app after the company decided its internal Slack channel was capable of taking the law into its own hands.

On May 21, several days after the misguided manhunt, Sergeant II Hector Guzman, a member of the LAPD Public Communications Group, emailed colleagues with a link to some of the coverage around the incident.“I know the meeting with West LA regarding Citizen was rescheduled (TBD), but here’s a recent article you might want to look at in advance of the meeting, which again highlights some of the serious concerns with Citizen, and the user actions they promote and condone,” Guzman wrote. Motherboard obtained the LAPD emails through a public records request.Lieutenant Raul Jovel from the LAPD’s Media Relations Division replied “given what is going on with this App, we will not be working with them from our shop.”Guzman then replied “Copy. I concur.”
Whatever lucrative possibilities Citizen might have envisioned after making early inroads towards law enforcement acceptance were apparently burnt to a crisp by this misapprehension that nearly led to a calamitous misapprehension. Rather than entertain Citizen's mastubatorial fantasies about being the thin app line between good and evil, the LAPD (wisely) chose to kick the upstart to the curb.The stiff arm continues to this day. The LAPD cut ties and has continued to swipe left on Citizen's extremely online advances. The same Sgt. Guzman referenced in earlier emails has ensured the LAPD operates independently of Citizen. When Citizen asked the LAPD if it would be ok to eavesdrop on radio chatter to send out push notifications to users about possible criminal activity, Guzman made it clear this would probably be a bad idea.
“It’s come up before. Always turned down for several reasons,” Guzman wrote in another email.
And now Citizen goes it alone in Los Angeles. In response to Motherboard's reporting, Citizen offered up word salad about good intentions and adjusting to "real world operational experiences." I guess that's good, in a certain sense. From the statement, it appears Citizen is willing to learn from its mistakes. The problem is its mistakes have been horrific rather than simply inconvenient, and it appears to be somewhat slow on the uptake, which only aggravates problems that may be caused by over-excited execs thinking a few minutes of police scanner copy should result in citizen arrests.

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Content Moderation Case Study: Russia Slows Down Access To Twitter As New Form Of Censorship (2021)

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Summary:On March 10 2021, the Russian Government deliberately slowed down access to Twitter after it accused the platform of repeatedly failing to remove posts about illegal drug use, child pornography, and pushing minors towards suicide. State communications watchdog Roskomnadzor (RKN) claimed that “throttling” the speed of uploading and downloading images and videos on Twitter was to protect its citizens by making its content less accessible. Using Deep Packet Inspection (DPI) technology, RKN essentially filtered internet traffic for Twitter-related domains. As part of Russia’s controversial 2019 Sovereign Internet Law, all Russian Internet Service Providers (ISPs) were required to install this technology, which allows internet traffic to be filtered, rerouted, and blocked with granular rules through a centralized system. In this example, it blocked or slowed down access to specific content (images and videos) rather than the entire service. DPI technology also gives Russian authorities unilateral and automatic access to ISPs’ information systems and access to keys to decrypt user communications. 

Twitter throttling in Russia meme. Translation: “Runet users; Twitter”
The University of Michigan’s researchers reported connection speeds to Twitter users were reduced on average by 87 percent and some Russian internet service providers reported a wider slowdown in access. Inadvertently, this throttling affected all website domains that included the substring t.co (Twitter’s shortened domain name), including Microsoft.com, Reddit.com, Russian state operated news site rt.com and several other Russian Government websites, including RKN’s own.Although reports suggest that Twitter has a limited user base in Russia, perhaps as low as 3% of the population (from an overall population of 144 million), it is popular with politicians, journalists and opposition figures. The ‘throttling’ of access was likely intended as a warning shot to other platforms and a test of Russia’s technical capabilities. Russian parliamentarian, Aleksandr Khinshtein, an advocate of the 2019 Sovereign Internet Law, was quoted as saying that: Putting the brakes on Twitter traffic “will force all other social networks and large foreign internet companies to understand Russia won’t silently watch and swallow the flagrant ignoring of our laws.” The companies would have to obey Russian rules on content or “lose the possibility to make money in Russia.” — Aleksandr KhinshteinThe Russian Government has a history of trying to limit and control citizen’s access and use of social media. In 2018, it tried and ultimately failed to shut down Telegram, a popular messaging app. Telegram, founded by the Russian émigré, Pavel Durov, refused to hand over its encryption keys to RKN, despite a court order. Telegram was able to thwart the shutdown attempts by shifting the hosting of its website to Google Cloud and Amazon Web Services through ‘domain fronting’ – which the Russian Government later banned. The Government eventually backed down in the face of technical difficulties and strong public opposition.
Many news outlets suggest that these incidents demonstrate that Russia, where the internet has long been a last bastion of free speech as the government has shuttered independent news organizations and obstructed political opposition, is now tipping towards the more tightly controlled Chinese model and replicating aspects of its famed Great Fire Wall – including creating home-grown alternatives to Western platforms. They also warn that as Russian tactics become bolder and its censorship technology more technically sophisticated – they will be easily co-opted and scaled up by other autocratic governments.Company considerations:
  • To what extent should companies comply with such types of government demands? 
  • Where do companies draw the line between acquiescing to government demands/local law that are contrary to its values or could result in human rights violations vs expanding into a market or ensuring that its users have access?
  • To what extent should companies align their response and/or mitigation strategies with that of other (competitor) US companies affected in a similar way by local regulation?
  • Should companies try to circumvent the ‘throttling’ or access restrictions through technical means such as reconfiguring content delivery networks?
  • Should companies alert its users that their government is restricting/throttling access?
Issue considerations:
  • When are government takedown requests too broad and overreaching? Who – companies, governments, civil society, a platform’s users – should decide when that is the case?
  • How transparent should companies be with its users about why certain content is taken down because of government requests and regulation? Would there be times when companies should not be too transparent?
  • What can users and advocacy groups do to challenge government restrictions on access to a platform?
  • Should – as the United Nations suggest – access to the internet be seen as a part of a suite of digital human rights?
Resolution:The ‘throttling’ of access to Twitter content initially lasted two months. According to RKN, Twitter removed 91 percent of its takedown requests after RKN threatened to block Twitter if it didn’t comply. Normal speeds for desktop users resumed in May after Twitter complied with RKN’s takedown requests but reports indicate that throttling is continuing for Twitter’s mobile app users until it complies fully with RKN’s takedown requests.Originally posted to the Trust and Safety Foundation website.

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Apple Opposes Trademark For Indie Film 'Apple-Man' Claiming Potential Confusion

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When it comes to silly trademark disputes, Apple has come up for discussion many, many times. The mega-corporation is a jealous defender of all of its IP, but most of our stories have focused on its disputes with companies that created logos that involve any sort of apple or other fruit. Sometimes it's not even companies that Apple is fighting with, but entire foreign political parties. The idea here is that when it comes to logos or trade dress, Apple appears to think that it owns all the apples.But what about the word itself? Well, the company can get absurd at that level, too. For instance, Apple recently opposed the trademark application for a Ukrainian filmmaker's indie opus, entitled Apple-Man.

Apple in December filed an opposition with the U.S. Patent and Trademark Office seeking to block Ukrainian director Vasyl Moskalenko’s trademark application for his indie project. The world’s most valuable company argues that viewers will mistakenly believe Apple-Man is associated with Apple and that the movie will dilute its brand.“The Apple Marks are so famous and instantly recognizable that the similarities in Applicant’s Mark will overshadow any minor differences and cause the ordinary consumer to believe that Applicant is related to, affiliated with, or endorsed by Apple,” states the filing, which is embedded below. “Consumers are likely to assume, erroneously, that Applicant’s Mark is a further extension of the famous Apple brand.”
Alright, so let's stipulate the following right up front: Apple's trademark on its name is no doubt famous. That affords the company far more protection on that mark than your normal everyday trademark. One of the main differences, however, is that Apple can enforce the mark not only for customer confusion, but for things like tarnishment, if someone used the term in a way that could be seen as disparaging to Apple.In the quote above, Apple is going the traditional confusion route in its opposition. But that's unbelievably silly. This is an indie film that nobody is going to associate with Apple. It's also, because it's a film, entitled to First Amendment protections that are almost certain to override any trademark concerns, particularly those as flimsy as Apple's.Elsewhere, Apple argues for dilution.
Apple also argues the trademark, if granted, will “cause dilution of the distinctiveness of the famous Apple Marks by eroding consumers’ exclusive identification of the Apple Marks with Apple.”
But consumers don't have an exclusive identification of the Apple Marks with Apple. That should be obvious on its face. Lots of companies, for instance, use the term "Apple" in branding for... you know... apples. There have also been other films, more specifically, that make use of the word "apple" in their names. There is one called The Apple. And another called Apples. So what does Apple's lawyers see as the difference between those films use and Apple-Man? ¯\_()_/¯
Jeremy Eche of JPG Legal, who represents Moskalenko, argues “apple” isn’t a proprietary word and viewers won’t be misled by the movie.“This is ridiculous,” he tells The Hollywood Reporter. “They really want to own the word ‘Apple’ in every industry.”Eche contends Apple is a “trademark bully” exploiting the system.
Of that there can be little doubt. So why is Apple even bothering with any of this? Well, outside council is involved, so the term "billable hours" immediately leaps to mind. But Apple's history of trademark bullying also doesn't exactly preclude a haphazard and capricious enforcement of its trademarks. The lawyers saw this one, so they went after it.And before anyone wants to jump in the comments and point out that Apple makes and provides film content via AppleTV and iTunes... don't. Doing so does not suddenly mean the company can keep a filmmaker from making a film that uses the word in its title, nor for trademarking the name of that film.

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posted at: 12:00am on 09-Feb-2022
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Appeals Court Can Rule That DMCA's Anti-Circumvention Rules Are Unconstitutional

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As you hopefully know, there are two main parts to the DMCA law that was passed in 1998. There's DMCA 512, which is what you hear about most of the time. That's the part that includes the rules for notice and takedown regimes for user uploaded content (among other things). It's got problems, but in its current form has also enabled many important services to exist. The other part, which is much more problematic, is DMCA 1201, which is the anti-circumvention rules -- or you could call it the "DRM" part of the law. This has no redeeming value whatsoever. Under 1201 basically any attempt to circumvent a "technological" protection measure, can be deemed infringing even if the underlying content is never infringed upon. This part of the law is not only not necessary, but it's drafted in a manner that has been regularly abused -- enabling everyone from printer manufacturers to garage door opener companies to argue that simple reverse engineering to create competition is "infringement."In fact, everyone -- even the drafters of the DMCA -- knew that 1201 went too far and would lead to massive collateral damage. Rather than not passing such a bill, Congress came up with its "escape valve" which is the triennial review process, whereby every three years, the Librarian of Congress can magically declare which things are exempt from 1201. This has exempted a few classes of important use cases, but just the fact that (1) these uses need to be renewed every three years, and (2) that you have to ask for permission that can only be granted every 3 years for things that should be perfectly legal... is a problem.Way back in 2016, EFF brought a case challenging the constitutionality of 1201 on behalf of computer security researcher/professor Matthew Green and hardware hacker Bunnie Huang, arguing that the DMCA 1201 liability suppressed their speech by stopping security research and beneficial hacking efforts. In 2019, a court dismissed much of the constitutional challenge, while allowing other parts of the case to move forward.However, those constitutional questions are now on appeal and the EFF recently filed its opening brief. It's worth reading.

Appellants' research and expression would be highly valuable to society. Their work would also be perfectly lawful but for one thingit requires circumventing digital locks and teaching others how to do the same. In the name of protecting copyrights, a federal statute, Section 1201(a) of the Digital Millennium Copyright Act (DMCA), makes it a crime to engage in or even distribute information about such circumvention, even if the circumvention serves an otherwise lawful purpose. This statute subverts the traditional contours of copyright law to criminalize speech and bar people from using information they possess for education, journalism, and expression. That, in turn, puts Section 1201(a) on a collision course with the First Amendmentone it cannot and should not survive.
Some useful and worth reading amicus briefs have also been filed in the case. Copyright scholars Pam Samuelson and Rebecca Tushnet filed a fantastic brief:
In 1998, Congress made a momentous departure from traditional copyrightlaw by enacting Section 1201 of the Digital Millennium Copyright Act (DMCA).Section 1201 created a new class of righta right to control access to legitimatelyacquired copies of copyrighted works that had been transferred to lawful owners, aswell as a new antitrafficking right specific to access controls. 17 U.S.C. 1201(a).Both new rightsas well as the significant civil and criminal penalties for infringingthose rightsapply well beyond the traditional contours of secondary liability foraiding infringement by others. Id. 1203, 1204. Moreover, these new rightsdisregard and override traditional mechanisms within the Copyright Act that struckthe balance between copyright protection and First Amendment interests.
The Tech Law & Policy clinic at Colorado Law highlighted how much damage 1201 and the triennial review process has done to accessibility, security, and right to repair:
The right to engage in fair use is protected by the First Amendment.The Supreme Court has concluded that fair use is one of copyright law'sessential built-in First Amendment accommodations and serves as atraditional First Amendment safeguard. The Supreme Court hasconceptualized fair use as a safety valve that prevents copyright lawfrom suppressing the exercise of First Amendment rights.Section 1201 eliminates fair use's capacity to serve as a FirstAmendment safeguard when copyrighted works are encumbered withTPMs. It does so by effectively prohibiting fair uses that require thecircumvention of TPMs.
And then there's an amicus brief from documentary film makers talking about how damaging 1201 has been to their own expression:
The Digital Millennium Copyright Act prevents filmmakers from exercisingtheir First Amendment right to make fair use by making it illegal to access contenton DVDs and other digital content protected by encryption. Congress intended tocreate a fail-safe mechanism to preserve the public's right to make fair use. Butthe open-ended rulemaking process it devised is unduly burdensome and has led toexemptions that leave filmmakers uncertain as to how they can make fair usesafely. Amici urge this Court to issue a limiting construction that preserves theirFirst Amendment right to make fair use. In addition, if this Court is inclined toorder equitable relief in this appeal, this Court should preserve existing exemptionsuntil a more constitutionally appropriate procedure is in place and more workableexemptions have gone into effect.Filmmakers depend on the doctrine of fair use to make commentary,criticism, instruction, and report on current events by utilizing portions of digitizedmovies and other digitized content. Fair use in filmmaking has been called a paradigmatic fair use, and without it a massive range of expressive conduct wouldbe impossible. But fair use is of little consequence if filmmakers cannot access thehigh-quality digital material they seek to use in the first place. Suppose afilmmaker wants to analyze how special effects in the Star Wars film franchisehave evolved from 1977 to the present day, examining various clips from the past45 years. The law is quite clear that fair use permits the use of film clips withoutpermission or payment to the Star Wars rightsholders. To do this, however, thefilmmaker will need to obtain high-quality footage, which is likely to be lockedbehind encryption and other technological protection measures (TPMs). That is aproblem for filmmakers because Congress made it a crime to circumventtechnologies that control access to copyrighted content when it enacted the DigitalMillennium Copyright Act (DMCA) in 1998, now codified at Section 1201 ofthe copyright statute. The result is that, barring an exemption from the Librarianof Congress, filmmakers cannot access the digital content they need for fair usewithout a credible fear of civil and criminal liability.
This isn't just an issue for big companies. This is about fundamental fair use rights of the public -- which Congress tossed away decades ago, and tried to pave over by insisting the Librarian of Congress could swoop in every 3 years and stop the most egregious attacks on free speech. But that's not how the 1st Amendment works.Hopefully the court agrees.

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posted at: 12:00am on 09-Feb-2022
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Consolidation Strategies Emerge For The Big 3 In Gaming: Nintendo Looks Like It Doesn't Want To Play

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We've been talking a bit about industry consolidation through mergers and acquisitions (M&As) in the video game industry as of late. The impetus for that discussion has been a series of high-profile acquisitions for several notable companies, namely Microsoft and Sony. Microsoft acquired Zenimax for $7 billion and Activision Blizzard King for a bonkers $69 billion recently, while Sony jumped into the game by acquiring Bungie for $3.6 billion. Of interest for these pages is the different approaches these companies have taken with these acquisitions. Microsoft hemmed and hawed about whether it would start building Microsoft exclusivity for products from its acquisitions, eventually landing on very much embracing exclusivity, while Sony took a much more hands-off approach and stated plainly that Bungie games would still be cross-platform. For those of us interested in digital and technology economies and business models, this is interesting stuff.But there is a name missing here. The traditional "Big 3" in gaming has long been Microsoft, Sony, and Nintendo. Well, if you like real-world experiments when it comes to business strategies, this looks like it's going to get even more fascinating, as Nintendo is making noises about going an entirely different route.

While Xbox and Sony are entering an acquisition arms race, Nintendo isn’t so eager to snap up a slew of game studios. In a recent investors’ meeting, Nintendo president Shuntaro Furukawa was asked about acquiring game companies—a timely question, that’s for sure.“Our brand was built upon products crafted with dedication by our employees, and having a large number of people who don’t possess Nintendo DNA in our group would not be a plus,” Furukawa replied, as reported by Bloomberg and Reuters.
Now, this shouldn't exactly come as a shock to anyone who knows the industry and how Nintendo operates. Whatever I might want to say in my series of posts about how "Nintendo hates you", the company has also built a successful business in the space that relies on first-party game titles and franchises compared with Sony and Microsoft. Whatever success those others have had, for instance, Microsoft and Sony simply don't have a version of the Super Mario Bros. franchise. Nintendo has several of these: Super Mario Bros., Zelda/Link, Star Fox, etc. So Nintendo has always been less reliant on 3rd party titles compared with its competitors.But the open question is whether this more insular focus will work in the post-pandemic period where industry consolidation is not just for the video game industry, but for many others. The Harvard Business Review had a study released in 2021 that predicted what many others have as well: the mid- and post-pandemic economic space will be one that heavily incentivizes mergers and acquisitions. Consolidation is the order of the day/year.So now we have three distinct strategies from the Big 3 of the video game industry: Microsoft will do M&As and try the exclusivity route, Sony will do M&As and be more open and permissive or cross-platform releases, and Nintendo will simply choose largely to not play this game at all.
At its core, Nintendo is not an enterprise built on corporate consolidation. It’s a company that makes hardware and games for said hardware. That is etched in its DNA.
And now we get to sit back and see how that works in a post-pandemic world.

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posted at: 12:00am on 08-Feb-2022
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Hypocrisy Rules As Companies Try To Smear New FTC Nomination Alvaro Bedoya

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Throughout the Trump administration, a lot of folks had absolutely no problem with the mindless rubber-stamps appointed to key regulatory positions. Ajit Pai, for example, couldn't have demonstrated regulatory capture any more clearly, rubber-stamping every idiotic whim of telecom monopolies at every conceivable opportunity (often with the help of fabricated data and fraud). Revolving door regulation and unqualified industry lackey appointments hit a fevered pitch not seen at any point in U.S. history, and at every step a long list of organizations and individuals made it abundantly clear they were fine with all of it.Fast forward to Biden's efforts to replace some of these folks, and a lot of these same organizations and individuals that turned a blind eye to the worst aspects of Trumpism are now fanning their face about perceived conflicts of interest, "partisan politics," and all manner of hypocritical injustices.See the intentionally gridlocked nomination of new FCC Commissioner Gigi Sohn, for example. Sohn is popular across both sides of the aisle and, whatever you think of her positions and politics, highly competent. Yet her nomination has been stuck in congressional purgatory for months thanks to completely false claims ranging from she wants to "censor conservatives," to laughable claims from revolving door cable lobbyists that her history as an expert on consumer advocacy means she can't regulate telecom fairly. All coming from industry folks who don't actually believe anything they're saying.The same gamesmanship is also imperiling the nomination of Alvaro Bedoya to the FTC. Bedoya is a professor and founding Director of Georgetown Law's Center on Privacy & Technology and is widely respected. Whatever one thinks of Bedoya's politics and positions, there's no real doubt that he's competent and qualified for the role. But companies that don't really want competent, objective regulators have been working overtime to smear Bedoya in the same way they're working to smear Sohn. Usually through proxy groups and think tanks they funnel money, and then flimsy arguments, to.For example the "American Consumer Institute Center for Citizen Research" is not really a consumer group. It's one of countless 501(c)(3) nonprofits corporations covertly fund, and use to create the illusion of broad support (or opposition) for/to things big companies want. For example the American Consumer Institute was paid by telecom to scuttle FCC oversight of telecom monopolies, yet pretended to just be an objective organization giving an honest, objective opinion.The group is also popping up in the attacks against Bedoya, attempting to frame him as some kind of radical. Usually, because he's (gasp) levied accurate criticisms at the actually radical modern Trump GOP:

"If confirmed, Bedoya would bring a record of hyper-partisan, extremist advocacy to the FTC and would steer the agency in a direction of over-reaching and harmful regulatory policies....He has amplified Twitter posts calling Governors Abbott and DeSantis death-eatersand urging Republican Senators to resign. Additionally, Bedoya has shared numerous social media posts calling President Trump and individuals in the Trump administration racist and white supremacist."
Believing that Donald Trump is racist and terrible is not a disqualifying character flaw, it's the norm. And, of course, groups like the American Consumer Institute don't really care about "hyper-partisanship," "extreme advocacy," or anybody being called out for racism. They're being covertly funneled cash to try and squash Bedoya's nomination because the companies that fund them don't want the FTC or FCC ramping up consumer protection and antitrust reform. If they can't scuttle the nominations they hope to delay both the FCC and FTC from having working voting majorities for as long as possible.It's not serious policy opinion, it's the kind of bad faith, theatrical proxy, rat fuckery that's been the norm in DC for more than 20 years. Despite this, the press still can't really help itself and will also quote and amplify groups like this as if they're actually objective, well-intentioned observers, and not, say, rat fucking propagandists for hire.

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posted at: 12:00am on 08-Feb-2022
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This Week In Techdirt History: January 30th - February 5th

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Five Years AgoThis week in 2017, the six-strike copyright "voluntary agreement" officially died. Another prominent death was Denuvo DRM for Reisdent Evil 7, which was cracked in five days, which the company hoped was better than nothing. In a more worrying DRM development, the eventually-successful push to codify EME DRM in the HTML5 standard lurched forward. Meanwhile, Congress appeared to be preparing to gut net neutrality and AT&T was downright giddy about Ajit Pai, while we took a moment for a deeper look at the horrors of a Trump presidency.Ten Years AgoThis week in 2012, in the aftermath of the SOPA protests, it was time for reflection on what happened and attempts to channel the energy into other issues — unless of course you were a SOPA supporter, in which case it was time for misleading op-eds and general whining. Protests against ACTA were spreading and starting to get big results, while Hollywood was partying with TPP negotiators. Megaupload users were planning to sue over the shutdown of the site, while ICE seized 300 more sites, mostly to protect the Super Bowl.Fifteen Years AgoThis week in 2007, Sony BMG admitted that its rootkit violated federal law and agreed to pay to fix damaged computers, Google issued a non-apology over its decision to censor results in China, and YouTube started talking about revenue sharing plans (while Viacom was pulling over 100,000 clips from the site). We looked at the deeper implications of Google's book scanning fight, and the emerging norm of judges citing Wikipedia. Also, this was the week of the (in)famous Adult Swim marketing stunt that shut down the city of Boston due to massive paranoid overreaction.

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posted at: 12:00am on 06-Feb-2022
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NYPD Was Supposed To Replace Hundreds Of Cops Working Administrative Jobs With Civilians. It Never Did.

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There's apparently nothing the New York Police Department won't lie about. When it comes to being overseen, the NYPD seems to feel it has no obligation to provide data, answer questions honestly, or cooperate with any accountability efforts.And the NYPD has made it clear it doesn't believe city laws (or even its own internal policies) should apply to it. Multiple legal rulings over the past several years have ordered the NYPD to staff administrative positions with civilian employees, rather than (much more costly) uniformed officers. This is part of being a good public servant -- one that seeks ways to reduce the cost of services provided to the public.It just makes sense. Officers who are out on the street should receive higher salaries that reflect the dangers they face as they perform their duties. If they're just running a desk, the pay should be lower. The fewer higher-paid cops staffing desk jobs, the more money available to hire uniformed officers to work the streets.But the NYPD doesn't want to do that. And since it hasn't, it has had to find ways to cover up its decision to ignore city policies and court orders.

For five years, the NYPD told the City Council in quarterly reports that it had over time replaced hundreds of cops handling clerical duties with less expensive civilian employees.But when city auditors asked for data to back up the figures, the department produced “three different datasets, none of which were consistent with the other,” according to City Comptroller Brad Lander’s first published audit, which was initiated by his predecessor.“The NYPD was not able to provide supporting data for the progress it has reported,” the audit being released Friday found.
Not only that, but the NYPD refused to provide information on payroll for uniformed staff currently performing administrative work, making it impossible for the city auditor to estimate how much the department could save by replacing officers with civilian employees. As of 2002, it was estimated the NYPD could save more than $24 million by converting certain positions. Presumably, the potential savings are much higher two decades later, but there's no way of estimating the current potential savings, thanks to the lack of cooperation from the PD.Any savings would be appreciated. The NYPD's budget hovers around $5-6 billion a year. In reality, the amount of money New Yorkers pay to keep the NYPD in business is roughly double that. So, there appears to be plenty of money for hiring civilians, especially when offset by the cost of putting existing officers back on patrol, rather than spending millions to educate and certify a new class of police academy candidates.In response to the auditor's recommendations, the NYPD offered excuses (supposed budget limitations) and bluster (ignoring the recommendation by talking about something else instead). If this is going to change (and it has been in the works since late 2015), the city will actually need to take action against the NYPD if it fails to move forward with these directives. If it doesn't, it will further solidify the NYPD's power, making it even more difficult for its oversight to do its job and for those overseeing the department to enforce needed changes.

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posted at: 12:00am on 05-Feb-2022
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House Votes For COMPETES Act, Even With Its Problems, Almost Entirely On Party Lines

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Congress is trying to overload anyone who supports an open internet with terrible bill after terrible bill. Last week, they brought out the "COMPETES Act" (renamed from Endless Frontiers which had already been renamed as "USICA" and then became COMPETES). The underlying concept of the bill actually is important -- reviving American innovation. The Senate version of the bill was mostly good and had broad bipartisan support. However, for reasons I don't understand, Nancy Pelosi allowed the bill to be loaded up with a bunch of items on the Democrats' wish list, including the ridiculously dangerous SHOP SAFE Act.This week, of course, we've been stuck dealing with the reintroduction of the also terrible EARN IT Act in the Senate, and while all of the open internet activists were gearing up to fight that, the House went ahead and voted to approve the COMPETES Act with no changes. It was an almost strict party-line vote, ending up at 222 for and 210 against. One Democrat -- Rep. Stephanie Murphy -- voted against it, and one Republican -- Rep. Adam Kinzinger (who technically is still a Republican) voted for it.This all seems so incredibly counterproductive by Pelosi and the Democrats. I know they want a "win" and when there's a bill that will move they feel they need to hang all sorts of gifts on it, but following the Senate's lead and coming up with a more reasonable bill that wasn't stuff full of bad ideas would have presented this as an actually interesting and useful bill, rather than turning it into a partisan thing. Politics is where policy goes to die. And, unfortunately, it may take parts of the open internet with it.That said, the Senate version does not have the nonsense and dangerous SHOP SAFE bill attached, and the hope is that during the conference process where the House and Senate try to square up the different bills, SHOP SAFE will get left on the cutting room floor, where it belongs.

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posted at: 12:00am on 05-Feb-2022
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Nintendo Hates You: More DMCA Takedowns Of YouTube Videos Of Game Music Despite No Legit Alternative

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I guess this is nearly an annual thing now. In 2019, we talked about how one YouTuber, GilvaSunner, had over one hundred YouTube videos blocked by Nintendo over copyright claims. GilvaSunner's channel is dedicated to video game music, mostly from Nintendo games. Those videos consist of nothing but that music, as in no footage of video game gameplay. Nintendo, which certainly can take this sort of action from an IP standpoint, also doesn't offer any legit alternative for fans to enjoy this music on any streaming service or the like. Then, in 2020, GilvaSunner had another whole swath of videos consisting of game music blocked by Nintendo over copyright claims. Still no legit alternative for those looking to enjoy music from Nintendo's celebrated catalogue of games.Well, if Nintendo decided to take 2021 off from this annual project, it certainly has more than made up for it by sending copyright strikes to GilvaSunner's channel at a volume of over 1,300 in one day.

Yesterday morning, YouTuber GilvaSunner posted a tweet explaining that Nintendo had sent them and their channel over 1300 “copyright blocks.” The channel, which is extremely popular, uploads full video game soundtracks, letting fans easily listen to their favorite Kirby or Mario track via YouTube.After all the copyright blocks went through and the dust settled, GilvaSunner shared a list of all the soundtracks that Nintendo had targeted and blocked from the site. It’s a long list.
A very long list, as you might expect. Now, a couple of items of note here. First, GilvaSunner has insisted that he is not shocked that Nintendo continues to take these actions, nor does he claim that it isn't within its rights to take them. But he's also not going to stop voluntarily.
“I’m also not angry or surprised that Nintendo is doing this, but I do think it’s a bit disappointing there is hardly an alternative,” explained GilvaSunner in a tweet thread from 2020. “If Nintendo thinks this is what needs to be done (to set an example), I will let them take down the channel. It is their content after all.”
Do as you please, in other words, Nintendo. That being said, let's also note that the channel doesn't monetize any of these videos. GilvaSunner doesn't make money off of Nintendo's music.And neither does Nintendo because, frustratingly, the company still hasn't made this music available on any of the music streaming services we all know and love. Nor has the company announced any plans to. In other words, Nintendo isn't going to provide you with a way to enjoy this music and it is going to shut down anyone who does.In that scenario, this isn't Nintendo protecting its monetary interests. It's simply the company deciding to take its musical ball and go home. Why? Because Nintendo hates you, that's why.

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posted at: 12:00am on 04-Feb-2022
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Virginia Police Used Fake Forensic Documents To Secure Confessions From Criminal Suspects

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Cops lie. It's just something they do.It's something all people do. We just expect cops to do less of it because they're entrusted with enforcing laws, which suggests their level of integrity should be higher than that of the policed. Unfortunately, the opposite often tends to be the case.There are many reasons cops lie. All of them are self-centered. They lie to cover up misconduct, salvage illegal searches, deny deployment of excessive force, and ensure narratives are preserved when challenged in court.They also lie to obtain confessions from criminal suspects. There is nothing illegal about this act. Whether or not it crosses constitutional lines tends to come down to the judgment of the judges handling civil rights lawsuits. There's no hard and fast rule as to which lies are unconstitutional so cops do a lot of lying when trying to fit someone for a criminal charge.Up until recently, it was okay for the Virginia Beach Police Department to use a particularly nefarious form of lying when trying to coax confessions from criminal suspects. While cops will routinely claim evidence and statements point to the person as the prime suspect, very rarely do they actually show this fake evidence to people being interrogated. Not so in Virginia Beach, where fake documents were just part of investigators' toolkits.

Police in Virginia Beach repeatedly used forged documents purporting to be from the state Department of Forensic Science during interrogations, falsely allowing suspects to believe DNA or other forensic evidence had tied them to a crime, the state attorney general revealed Wednesday in announcing an agreement to ban the practice.
This practice was inadvertently exposed by a prosecutor who asked for a certified copy of a report faked up by police investigators. The state's Department of Forensic Science told the commonwealth's attorney no such report existed, leading to an internal investigation by the PD. That happened last April. The following month (May 2021), the Virginia Beach police chief issued an order forbidding the use of this tactic. Since then, the PD has uncovered five times fake forensic documents were used during investigations.But it wasn't just limited to investigators trying to convince suspects to admit their guilt. One of these fake documents made its way into court, used as evidence (!!) during a bail hearing.Now, there's a statewide ban on using fake or forged forensic documents during interrogations, thanks to Virginia's Attorney General. There's been no statement made yet suggesting the prosecutions tied to use of fake documents will be examined further to determine whether their use was coercive, and the Attorney General's office has not said whether it will notify convicts who were subjected to this form of police lying.The PD's apology is somewhat less than authentic:
The Virginia Beach Police Department said in a statement that the technique, “though legal, was not in the spirit of what the community expects.”
There are a lot of things that are technically legal but that most people would find to be an abuse of power. The key is to not engage in questionable practices just because no court has declared them unconstitutional. No doubt the investigators that used fake documents to secure confessions were aware the community at large would frown on such obviously devious behavior. But they did it anyway because winning at all costs is standard MO for most law enforcement agencies. While it's good this discovery led to swift action, the investigation should really be expanded to see what other unsavory techniques are being deployed to extract confessions.

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posted at: 12:00am on 04-Feb-2022
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Spying Begins At Home: Israel's Government Used NSO Group Malware To Surveill Its Own Citizens

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Israeli malware purveyor NSO Group may want to consider changing its company motto to "No News Is Good News." The problem is there's always more news.The latest report from Calcalist shows NSO is aiding and abetting domestic abuse. No, we're not talking about the king of Dubai deploying NSO's Pegasus spyware to keep tabs on his ex-wife and her lawyer. This is all about how the government of Israel uses NSO's phone hacking tools. And that use appears to be, in a word, extremely irresponsible.

Israel police uses NSO’s Pegasus spyware to remotely hack phones of Israeli citizens, control them and extract information from them, Calcalist has revealed. Among those who had their phones broken into by police are mayors, leaders of political protests against former Prime Minister Benjamin Netanyahu, former governmental employees, and a person close to a senior politician.
Not exactly the terrorists and dangerous criminals NSO claims its customers target. Instead, the targets appear to be more of the same non-terrorists and non-criminals NSO customers have targeted with alarming frequency: political opponents, activists, etc.That already looks pretty terrible (but extremely on-brand for NSO customers). But it gets a lot worse. The government didn't even bother trying to fake up any justification for this spying.
Calcalist learned that the hacking wasn’t done under court supervision, and police didn’t request a search or bugging warrant to conduct the surveillance.
Is it a "rogue state" when the entire state has decided the rules don't apply to them? Asking for people I would never consider friends.Perhaps this abuse could have been contained, curtailed, or averted entirely. But the upper layers of the Israeli government cake couldn't be bothered.
There is also no supervision on the data being collected, the way police use it, and how it distributes it to other investigative agencies, like the Israel Securities Authority and the Tax Authority.
"Fuck it," said multiple levels of the Israeli government. It would be a shame to let these powerful hacking tools go to waste -- not when there are anti-government activists out doing activism. Israeli law enforcement decided -- not incorrectly, it appears -- it was a law unto itself, and issued its own paperwork to target protesters demonstrating against the former Prime Minister and COVID restrictions handed down by the Israeli government.At least some of these malware attacks were targeted. In other cases, law enforcement engaged in almost-literal fishing expeditions to find more targets for NSO's Pegasus spyware.
NSO’s spyware was also used by police for phishing purposes: attempts to phish for information in an intelligence target’s phone without knowing in advance that the target committed any crime. Pegasus was installed in a cellphone of a person close to a senior politician in order to try and find evidence relating to a corruption investigation.
If you like your damning reports to be breathtaking in their depiction of government audacity, click through to read more. The further you scroll down, the worse it gets. Evidence obtained with illicit malware deployments was laundered via parallel construction. Employees of government contractors were targeted without consultation with any level of oversight. A town's mayor was hacked -- allegedly because the Israeli government suspected corruption -- but no evidence of corruption was obtained. However, all data and communications harvested from the compromised phone still remains in the hands of the government. In one case, cops used NSO malware -- again without court permission -- to identify a phone thief suspected of publishing "intimate images" from the stolen phone online.In only a few cases was the malware used to investigate serious crimes. But even in those cases, no legal approval was obtained and the malware was deployed furtively to fly under the oversight radar.NSO's response to this report is more of the same: Hey, we just sell the stuff. We can't control how its used, even when it's being purchased by our own government.The Israeli police statement is far more defensive:
“The claims included in your request are untrue. Israel Police acts according to the authority granted to it by law and when necessary according to court orders and within the rules and regulations set by the responsible bodies. The police’s activity in this sector is under constant supervision and inspection of the Attorney General of Israel and additional external legal entities…"
Well, then I assume the paperwork containing signatures and explicit approval of all relevant authorities is being swiftly couriered to Calcalist HQ to provide evidence refuting the claims made in its article. Otherwise, this just sounds like the bitter muttering of an angry government spokesperson willing to do nothing more than allude to the Emperor's New Court Orders. Given the routine abuse of NSO Group malware by governments around the world, it comes as absolutely no surprise it's being abused at home as well. And the non-denials by governments are starting to wear as thin as NSO's "hey, we're only an enabler of abuse" statements.

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posted at: 12:00am on 03-Feb-2022
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Moar Consolidation: Sony Acquires Bungie, But Appears To Be More Hands Off Than Microsoft

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A couple of weeks back we asked the question: is the video game industry experiencing an age of hyper-consolidation? The answer to that increasingly looks to be "yes". That post was built off of a pair of Microsoft acquisitions of Zenimax for $7 billion and then a bonkers acquisition of Activision Blizzard King for roughly $69 billion. Whereas consolidations in industries are a somewhat regular thing, what caused my eyes to narrow was all of the confused communications coming out of Microsoft as to how the company would handle these properties when it came to exclusivity on Microsoft platforms. It all went from vague suggestions that the status quo would be the path forward to, eventually, the announcement that some (many?) titles would in fact be Microsoft exclusives.So, back to my saying that consolidation does seem to be the order of the day: Sony recently announced it had acquired game studio Bungie for $3.6 billion.

Sony Interactive Entertainment today announced a deal to acquire Bungie for $3.6 billion, the latest in a string of big-ticket consolidation deals in the games industry.After the deal closes, Bungie will be "an independent subsidiary" of SIE run by a board of directors consisting of current CEO and chairman Pete Parsons and the rest of the studio's current management team.
This is starkly different than the Microsoft acquisitions in a couple of ways. Chief among them is that Bungie will continue to operate with much more independence than those acquired by Microsoft. While Sony obviously wants to recoup its investment in Bungie, the focus there appears to be on continuing to make great games using existing IP, building new IP, and creating content for that IP that expands far beyond just the video game publishing space.What does not appear to be part of the plan are PlayStation exclusives, as explicitly stated in this interview with both Sony Interactive Entertainment CEO Jim Ryan and Bungies' CEO Pete Parsons.
In an interview with GamesIndustry.biz, Sony Interactive Entertainment CEO Jim Ryan says that Destiny 2 and future Bungie games will continue to be published on other platforms, including rival consoles. The advantages Bungie offers Sony is in its ability to make huge, multiplatform, live-service online games, which is something the wider organisation is eager to learn from."The first thing to say unequivocally is that Bungie will stay an independent, multiplatform studio and publisher. Pete [Parsons, CEO] and I have spoken about many things over recent months, and this was one of the first, and actually easiest and most straightforward, conclusions we reached together. Everybody wants the extremely large Destiny 2 community, whatever platform they're on, to be able to continue to enjoy their Destiny 2 experiences. And that approach will apply to future Bungie releases. That is unequivocal."
That's about as firm a stance as you're going to get in this industry. And it is a welcome sign in a few ways. Primarily, Bungie fans will be pleased to know the acquisition doesn't mean they'll lose out on game releases if they don't own a PlayStation. But perhaps just as important is that this demonstrates another route big gaming companies can go with these acquisitions.As I stated in previous posts on the Microsoft acquisitions: consolidation doesn't have to be a bad thing, but when it results in less customer choice, that's not great. That Sony is doing this differently is a good sign.

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posted at: 12:00am on 03-Feb-2022
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That's A Wrap On The Public Domain Game Jam! Check Out All This Year's Great Entries

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Last night at midnight, we reached the end of Gaming Like It's 1926, our fourth annual public domain game jam celebrating the new works that entered the public domain this year. At final count, we got 31 entries representing a huge variety of different kinds of digital and analog games!For the next couple of weeks, we'll be digging into all the games and selecting the winners in our six categories — but there's no need to wait before playing! You can check out all the entries on itch.io:

At first glance (and having poked around in a couple of the early entries) I can already tell it's going to be tough to narrow these down to just six winners — there are lots of games here that do fun and interesting things with public domain works. As in past years, once we've selected and announced the winners we'll discuss each one in detail in a podcast and a series of posts.Until then, a huge thanks to everyone who participated this year, and also to everyone who takes some time to play the games and give these designers the attention they deserve!

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posted at: 12:00am on 02-Feb-2022
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YouTube Dusts Off Granular National Video Blocking To Assist YouTuber Feuding With Toei Animation

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Hopefully, you will recall our discussion about one YouTuber, Totally Not Mark, suddenly getting flooded with 150 copyright claims on his YouTube channel all at once from Toei Animation. Mark's channel is essentially a series of videos that discuss, critique, and review anime. Toei Animation produces anime, including the popular Dragon Ball series. While notable YouTuber PewDiePie weighed in with some heavy criticism over how YouTube protects its community in general from copyright claims, the real problem here was one of location. Matt is in Ireland, while Toei Animation is based out of Japan. Japan has terrible copyright laws when it comes to anything resembling fair use, whereas Ireland is governed by fair dealing laws. In other words, Matt's use was just fine in Ireland, where he lives, but would not be permitted in Japan. Since YouTube is a global site, takedowns have traditionally been global.Well, Matt has updated the world to note that he was victorious in getting his videos restored and cleared, with a YouTube rep working directly with him on this.

But shortly after, as Fitzpatrick revealed in a new video providing an update on the legal saga, someone “high up at YouTube’’ who wished to remain anonymous, reached out to him via Discord. Fitzpatrick said the contact not only apologized for his situation not being addressed sooner, but divulged a prior conflict between YouTube and Toei regarding his videos fair use status.“I’m not going to lie, hearing a human voice that felt both sincerely eager to help and understanding of this impossible situation felt like a weight lifted off my shoulders,” Fitzpatrick said.
Hey, Twitch folks, if you're reading this, this is how it is done. But it isn't the whole story. Before the videos were claimed and blocked, Toei had requested that YouTube manually take Matt's videos offline. YouTube pushed back on Toei, asking for more information on its requested takedowns, specifically asking if the company had considered fair use/fair dealing laws in its request. Alongside that, YouTube also asked Toei to provide more information as to what and why Matt's videos were infringing. Instead of complying, Toei utilized YouTube's automated tools to simply claim and block those 150 videos.
The following week, a game of phone tag ensued between Toei, the Japanese YouTube team, the American YouTube team, Fitzpatrick’s YouTube contact, and himself to reach “some sort of understanding” regarding his copyright situation. Toei ended up providing a new list of 86 videos of the original 150 or so that the company deemed should not remain on YouTube, a move Fitzpatrick described as “baffling” and “inconsistent.” Toei, he concludes, has no idea of the meaning of fair use or the rules the company wants creators to abide by.“Contained in this list was frankly the most arbitrary assortment of videos that I had ever seen,” he said. “It honestly appeared as if someone chose videos at random as if chucking darts at a dart board.”
While Matt regained control of his videos thanks to his work alongside the YouTube rep, he was still in danger of Toei filing a lawsuit in Japan that he would almost certainly lose, given that country's laws. Fortunately, YouTube has a method for blocking videos based on copyright claims in certain countries for these types of disputes. The Kotaku post linked above suggests that this method is brand new for YouTube, but it isn't. It's been around for a while but, somewhat amazingly, it appears to have never been used specifically when it comes to copyright laws in specific countries.
YouTube’s new copyright rule allows owners like Toei to have videos removed from, say, Japan’s YouTube site, but said videos will remain up in other territories as long as they fall under the country’s fair use policies. To have videos removed from places with more allowances for fair use, companies would have to argue their cases following the copyright laws of those territories.
And so Matt's review videos remain up everywhere except in Japan. That isn't a perfect solution by any stretch, but it seems to be as happy a middle ground as we're likely to find given the circumstances. Those circumstances chiefly being that Toei Animation for some reason wants to go to war with a somewhat popular YouTuber who, whatever else you might want to say about his content, is certainly driving interest publicly in Toei's products, for good or bad. This is a YouTuber the company could have collaborated with in one form or another, but instead it is busy burning down bridges.
“Similarly to how video games have embraced the online sphere, I sincerely believe that a collaborative or symbiotic relationship between online creators and copyright owners is not only more than possible but would likely work extremely well for both sides if they are open to it,” Fitzpatrick said.
That Toei Animation is not open to it is the chief problem here.

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posted at: 12:00am on 02-Feb-2022
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Another 'Wordle' App Mixup Occurs, Only This Time Recipient Of Undue Rewards Builds Good Will

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This post was written before the news today that the NY Times was buying Wordle. It will be interesting to see if suddenly "IP issues" start becoming a bigger deal to the NY Times than they were to the original developer...Just a week or so back, we discussed how one man ripped off Wordle, a browser-based Mastermind style game who's creator insists be free and unmonetized. In that instance, Zach Shakked copied the game with only a few minor additional features and released it as an app going by the same name, Wordle, only to find that the entire internet decided this was a dick move and helped get the app delisted from Apple and Google stores. That was a story about how one bad actor got dealt with without anyone having to go down intellectual property or legal routes.Well, here we are again with yet another unaffiliated Wordle app syphoning off money from people who think they're getting the browser game in an app... only this time the recipient of that undue income is building up a ton of goodwill by not being a jerk about it.

As spotted by GR+, Josh Wardle’s Wordle has led to squillions of confused players (hello!) accidentally downloading a five-year-old app with the same name to their mobile devices. The result being, creator of the other Wordle ended up receiving close to 200,000 downloads in a couple of days. More than it had received in total in the previous five years. And in turn, generating him a whole bunch of advertising revenue.
Steven Cravotta created that app five years ago as a teenager almost strictly to practice his coding skills. When he woke up the other day to suddenly find advertising revenue pouring in from the since-forgotten app, he didn't simply sit back and start counting all the dollar signs floating before his eyes. Instead, he started tweeting about how weird this all was and how much he wishes that the media did a better job of differentiating between Wordle the browser game and any Wordle mobile app.
If you follow that tweet-thread all the way through, you'll notice a couple of things. Cravotta spends a lot of time pointing out how weird this all is. Then he mentions that he is reaching out to Wordle creator Josh Wardle to find out what his preferred charity is so he can donate all of this money to the cause of his choice. The two apparently did speak and landed on Boost! West Oakland, an organization that empowers youths in Oakland, California through school tutoring. And, while he was at it, he pointed out that his more recent and professional apps are available.In other words, he acted reasonable and human, recognizing that this was all a bunch of confused people accidentally downloading his game. As a result, just as the internet went off on what a jerk the Wordle copycat guy seemed to be, so too is it and a bunch of mass media sites reporting on how human and awesome Cravotta is. This is leading more people to his current apps.Sometimes a little public reaction is all you need, rather than worrying about IP.

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posted at: 12:00am on 01-Feb-2022
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Massachusetts Court Says Breathaylzers Are A-OK Less Than Three Months After Declaring Them Hot Garbage

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Breathalyzers are like drug dogs and field tests: they are considered infallible right up until they're challenged in court. Once challenged, the evidence seems to indicate all of the above are basically coin tosses the government always claims to win. Good enough for a search or an arrest when only examined by an interested outsider who's been subjected to warrantless searches and possibly bogus criminal charges. But when the evidentiary standard is a little more rigorous than roadside stops, probable cause assertions seem to start falling apart.Drug dogs are only as good as their handlers. They perform probable cause tricks in exchange for praise and treats. Field drug tests turn bird poop and donut crumbs into probable cause with a little roadside swirling of $2-worth of chemicals. And breathalyzers turn regular driving into impaired driving with devices that see little in the way of calibration or routine maintenance.Courts have seldom felt compelled to argue against law enforcement expertise and training, even when said expertise/training relies on devices never calibrated or maintained, even when said devices are capable of depriving people of their freedom.Once every so often courts take notice of the weak assertions of probable cause -- ones almost entirely supported by cop tools that remain untested and unproven. Late last year, a state judge issued an order forbidding the use of breathalyzer results as evidence in impaired driving prosecutions. District court judge Robert Brennan said he had numerous concerns about the accuracy of the tests, and the oversight of testing, and the testing of test equipment by the Massachusetts Office of Alcohol Testing.

“Breathalyzer results undeniably are among the most incriminating and powerful pieces of evidence in prosecutions involving either alcohol impairment or “per se” blood alcohol percentage as an element. Their improper inclusion in criminal cases not only unfairly impacts individual defendants, but also undermines public confidence in the criminal justice system.”
The pause on using breathalyzer tests as evidence is only the most recent development in a year's long challenge of their accuracy. In 2017, ruling on the reliability of tests taken between 2012 and 2014, Brennan found that while the tests were accurate, the way the state maintained them was not.A court finally found a reason to push back against assertions of training and expertise, as well as assertions that cop tech should be considered nigh invulnerable. But the pushback is over. The same court is apparently now satisfied that the tech it questioned last November is good enough to make determinations that can deprive people of their property and freedom.Breathalyzers are back in business in the Bay State after a judge dropped the suspension on breath tests, which cops use to bust and prosecute drunk drivers.
Salem Judge Robert Brennan, who in November ordered the statewide exclusion of breath test results, has tossed out the police Breathalyzer pause.The Draeger Alcotest 9510 breath tests have come under fire for several years, as a Springfield OUI attorney represents defendants in statewide Breathalyzer litigation. Lead defense attorney Joseph Bernard has been raising concerns about the software problems impacting the scientific reliability of the breath test.But the Salem judge in the ruling vacating the Breathalyzer suspension said the Draeger Alcotest 9510 "produces scientifically reliable breath test results."
Judge Brennan isn't willing to let the possibly subpar be the enemy of the verifiable good. If you went long on breathalyzers late last year, it's time to cash out. According to Judge Brennan, whatever's determined to be good enough is, well, good enough to deprive people of their liberties. Brennan's decision notes there's no such thing as "perfect source code" or "flawless machines." Therefore, state residents should just resign themselves to the fact their freedom is reliant on the Massachusetts' OKest Breathalyzers.
"This Court remains satisfied that the public can have full confidence in the results produced by the Alcotest 9510…"
But can they though? Who knows? Certainly not this court. Certification information has been offered but prior to the November 2021 decision, state prosecutors were voluntarily excluding breathalyzer evidence. That's not exactly a vote of confidence. And this vote against breathalyzers was coming from entities judged almost solely on their prosecutorial wins, necessitating the need to achieve as many easy wins as possible.Weirdly, the judge says the tests are OK but their oversight isn't. Despite the fact that both facets need to be on the same level to avoid abuse and unjustified arrests, the judge is allowing roadside testing to move forward while criticizing the Office of Alcohol Testing for its "lack of candor and transparency" when dealing with the court and criminal defendants.In the end, the system prevails. Massachusetts cops can continue to use questionable tech to effect arrests and engage in warrantless searches and detentions. As for its oversight, it's only being threatened with the possibility of further action from this court -- the same court that ended breathalyzer testing in November (citing concerns about equipment and accuracy) only to reverse course three months later.One imagines the demands placed on the Office of Alcohol Testing will be just as temporary as this court's momentary pause on the use of unproven tech. The desire to be in the police business once again outweighs the public's concern about being on the wrong end of baseless prosecutions. The onus is back on presumably innocent defendants to prove the government isn't using faulty tech to lock them up.

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posted at: 12:00am on 01-Feb-2022
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