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September 2020
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TikTok And The DOJ Still Fighting It Out In Court Despite Oracle 'Deal'

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Even though Trump gave his supposed okay to the grifty TikTok/Oracle hosting deal, it appears that TikTok, ByteDance and the Trump administration are still busy fighting this out in court. The Trump rules to ban the app are still set to go into effect on Sunday. And while WeChat users were able to block the rules from going into effect, they still technically are scheduled to go into effect for TikTok this weekend.TikTok has asked for an injunction to stop the ban and the court is going to decide at the last minute whether to issue an injunction in the TikTok case as well. This is, in part, because the Oracle deal (which is not a sale and accomplishes none of the stated goals of the original executive order) still needs approval from the Chinese side -- and there are indications that China wants a better deal.After a hearing on Thursday, the judge ordered the government to either respond to the request for an injunction or to submit "a notice describing [the DOJ's] plan to delay the effective date of the subset of prohibited transactions directed against TikTok that are scheduled to go into effect" on Sunday at midnight. The DOJ, rather than say they were delaying the TikTok ban, instead, filed an opposition to the proposed injunction, though it did so under seal so we can't see what the DOJ said.The judge is expected to rule by Sunday, and it's possible (likely) that he'll drag the lawyers from both sides into (virtual) court this weekend. The whole thing remains insane. The President should never have the right to just ban a random social media app like this. Hopefully, the court agrees to an injunction while everything else gets worked out.

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posted at: 12:00am on 26-Sep-2020
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Content Moderation Case Study: Twitter's Algorithm Misidentifies Harmless Tweet As 'Sensitive Content' (April 2018)

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Summary: While some Twitter users welcome the chance to view and interact with "sensitive" content, most do not. Twitter utilizes algorithms to detect content average users would like to avoid seeing, especially if they've opted in to Twitter's content filtering via their user preferences.

Unfortunately, software can't always tell what's offensive and what just looks offensive to the programmable eye that constantly scans uploads for anything that should be hidden from public view unless the viewer has expressed a preference to see it.A long-running and well-respected Twitter account that focused on the weirder aspects of Nintendo's history found itself caught in Twitter's filters. The tweeted image featured an actor putting on his Princess Peach costume. It focused on the massive Princess Peach head, which apparently contained enough flesh color and "sensitive" shapes to get it -- and the Twitter account -- flagged as "sensitive."The user behind the account tested Twitter to see if it was its algorithm or something else setting off the "sensitive" filter. Dummy accounts tweeting the image were flagged almost immediately, indicating it was the image -- rather than other content contained in the user's original account -- that had triggered the automatic moderation.Unfortunately, the account was likely followed by several users who never expected it to suddenly shift to "sensitive" content. Thanks to the algorithm, the entire account was flagged as "sensitive," possibly resulting in the account losing followers.Twitter ultimately removed the block, but the user was never directly contacted by Twitter about the alleged violation.Decisions to be made by Twitter:
  • Are false positives common enough that a notification process should be implemented?
  • Should the process be stop-gapped by human moderators? If so, at what point does double-checking the algorithm become unprofitable?
  • Would a challenge process that involved affected users limit collateral damage caused by AI mistakes?
  • Does sensitive content negatively affect enough users that over-blocking/over-moderation is acceptable?
Questions and policy implications to consider:
  • Should Twitter change its content rules to further deter the posting of sensitive content?
  • Given Twitter's reputation as a porn-friendly social media platform, would stricter moderation of sensitive content result in a noticeable loss of users?
  • Should Twitter continue to remain one of the only social media outlets that welcomes "adult" content?
  • If users are able to opt out of filtering at any point, is Twitter doing anything to ensure younger users aren't exposed to sensitive material?
Resolution: Twitter removed the flag on the user's account. According to the user behind the account, it took the work of an employee "behind the scenes" to remove the "sensitive content" warning. Since there was no communication between Twitter and the user, it's unknown if Twitter has implemented any measures to limit future mischaracterizations of uploaded content.

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posted at: 12:00am on 26-Sep-2020
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Woof: Jack Daniels Takes Fight Over Doggy Chew Toy To The Supreme Court

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Back in April, we wrote about a trademark dispute between Jack Daniels and VIP Products LLC. At issue was a doggy chew toy made as clear parody of the Jack Daniels bottle, with the branding changed to "Bad Spaniels", along with other parody references. While Jack Daniels had initially won in court when VIP sought declaratory judgement that its use was non-infringing, upon appeal to the U.S. Court of Appeals for the 9th District, that decision was reversed. Key to that ruling was the court's assessment that, due to the parody nature of the product, it was an "expressive work", and the lower court ought to therefore have applied the Rogers test, and vacated an injunction the lower court had applied.

Accordingly, the court held that, as a threshold matter, the Rogers test needed to be applied. Under that test, a trademark infringement plaintiff must show that the defendant’s use of the mark either (1) is “not artistically relevant to the underlying work” or (2) “explicitly misleads consumers as to the source or content of the work.”  Id. at 9 (quoting Gordon, 909 F.3d at 265). The Ninth Circuit vacated the district court’s finding of infringement and remanded for a determination, in the first instance, of whether Jack Daniel’s can satisfy either element of the Rogers test.
But instead of proceeding along those lines, it seems that Jack Daniels instead wants to have a fight at the U.S. Supreme Court over whether a parody dog chew toy truly is expressive. The appeal takes particular umbrage at the lower court's sense of humor.
Because the court of appeals thought [VIP Products’] notorious copying was funny, it held that the company has a First Amendment interest in confusing consumers into believing that Jack Daniel’s sponsors a dog toy spotlighting poop.
The more serious aspects of the filing focus on just where and how Fair Use can be applied in trademark law.
The Lanham Act provides that certain categories of use “shall not be actionable” as dilution. One excluded category is “[a]ny fair use . . . other than as a designation of source for the person’s own goods or services.” 15 U.S.C. § 1125(c)(3)(A) (emphasis added). The Act identifies parody as a permitted fair use, but it excludes the parodist from liability only so long as the parodist does not use a trademark as its own designation of source. Id. § 1125(c)(3)(A)(ii). The Ninth Circuit did not apply that exclusion here, presumably because it had no basis to reverse the district court’s conclusion that VIP Products used Jack Daniel’s trademarks as a designation of source.
Which is one hell of a presumption. What the court actually did, instead, is recognize the product as parody, deem it expressive because of that, and then indicated that the use of any trade dress or marks therefore didn't act as a source identifier. In other words, the lower court indicated that this ought to be a fight over customer confusion rather than how closely the parody's branding compared with the subject of that parody.Which is exactly the correct arena for this to be fought in. Because of the clear parody nature of the product, the proper question is will the public be confused into thinking it was buying a product that has any actual association with Jack Daniels. That Jack Daniels doesn't want to have this fight on those grounds should tell you everything you need know.

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posted at: 12:00am on 25-Sep-2020
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If Patents Are So Important To Innovation, Why Do Innovative Companies Keep Opening Up Their Patents Rather Than Enforcing Them?

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To hear many politicians (and, tragically, many academics) tell the story, patents and patent policy are keys to innovation. Indeed, many studies trying to measure innovation use the number of patents as a proxy. For years, we've argued that there is little evidence that patents are in any way correlated with innovation. Indeed, in practice, we often see patents get in the way of innovation, rather than being a sign of innovation. If anything, an influx of patents seems to indicate a decline in innovation, because as the saying goes, smart companies innovate, while failed companies litigate. Litigating patents tends to happen when a more established company no longer is able to compete by innovation, and has to bring in the courts to block and stop more nimble competitors.Indeed, over and over again we seem to see the most innovative companies eschewing the anti-competitive powers that patents give them. I was reminded of this recently with the announcement that payments company Square had agreed to put all of its crypto patents into a new non-profit called the Crypto Open Patent Alliance to help fight off the unfortunate number of crypto patent trolls that are showing up.

Of course, we see this throughout the companies generally considered to be the most innovative. A decade ago, Twitter came up with a very clever Innovator's Patent Agreement, which effectively would block patent trolls from ever being able to use Twitter's patents, should they somehow fall into trollish hands. A bunch of other top internet companies including Google, Dropbox, Asana, and Newegg launched the License on Transfer network, as a basic poison pill to, again, stop patent trolls.And, most famously, Elon Musk flat out gave away Tesla's patents and encouraged anyone else to use them to compete with Tesla, license-free.If patents really were so vital to innovation, why would all of these innovative companies be so quick to give them up? And why is it so incredibly rare that any of them assert patents against competitors? Instead, so much of the patent litigation we see is against those innovative companies coming from a variety of patent trolls (frequently lawyers who never innovated at all) or also ran companies which may have been innovative in the past but have long since seen their innovative days in the rearview mirror.It would be nice if policymakers, the media, and academics finally started recognizing the idea that patents are not just a bad proxy for actual innovation, but often antithetical to innovation, and we can see all the evidence we need for that in the fact that the most innovative companies are "devaluing" in their own patents to improve the ecosystem, rather than enforce those patents.

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posted at: 12:00am on 25-Sep-2020
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