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May 2018
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Yelp's Newest Campaign: Asking Google To Do The Right Thing

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Back in 2014, we wrote about a campaign by Yelp which it called "Focus on the User," in which it made a very compelling argument that Google was treating Yelp (and TripAdvisor) content unfairly. Without going into all of the details, Yelp's main complaint was that while Google uses its famed relevance algorithm to determine which content to point you to in its main search results, when it came to the top "One Box" on Google's site, it only used Google's own content. Four years ago, the Focus on the User site presented compelling evidence that users of Google actually had a better overall experience if the answers for things like local content (such as retailer/restaurant reviews) in the One Box were ranked according to Google's algorithm, rather than just using Google's own "Local" content (or whatever they call it these days).As we noted at the time, this argument was pretty compelling, but we worried about Yelp using the site to ask the EU to then force Google to change how its site functioned. As we wrote at the time:

... the results are compelling. Using Google's own algorithm to rank all possible reviews seems like a pretty smart way of doing things, and likely to give better results than just using Google's (much more limited) database of reviews. But here's the thing: while I completely agree that this is how Google should offer up reviews in response to "opinion" type questions, I still am troubled by the idea that this should be dictated by government bureaucrats. Frankly, I'm kind of surprised this isn't the way Google operates, and it's a bit disappointing that the company doesn't just jump on this as a solution voluntarily, rather than dragging it out and having the bureaucrats force it upon them.So while the site is fascinating, and the case is compelling, it still has this problem of getting into a very touchy territory where we're expecting government's to design the results of search engines. It seems like Yelp, TripAdvisor and others can make the case to Google and the public directly that this is a better way to do things, rather than having the government try to order Google to use it.
It took four years, but it looks like Yelp is at least taking some of my advice. The company has relaunched the "Focus on the User" site, but positioned it more towards convincing Google employees to change how the site handles One Box content, rather than just asking the government for it. This is a good step, and I'm still flabbergasted that Google hasn't just done this already. Not only would it give users better overall results, but it would undercut many of the antitrust arguments being flung at Google these days (mainly in the EU). It's a simple solution, and Google should seriously consider it.That said, while Yelp has shifted the focus of that particular site, it certainly has not not given up on asking the government to punish Google. Just as it was relaunching the site, it was also filing a new antitrust complaint in the EU and again, I'm still concerned about this approach. It's one thing to argue that Google should handle aspects of how its website works in a better way. It's another to have the government force the company to do it that way. The latter approach creates all sorts of potential consequences -- intended or unintended -- that could have far reaching reverberations on the internet, perhaps even the kind that would boomerang around and hurt Yelp as well.Yelp makes a strong argument for why Google's approach to the One Box is bad and not the best overall results for its users. I'm glad that it's repurposed its site to appeal to Google employees, and am disappointed that Google hasn't made this entire issue go away by actually revamping how the One Box works. But calling on the government to step in and determine how Google should design its site is still a worrisome approach.

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posted at: 12:00am on 26-May-2018
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The GDPR: Ghastly, Dumb, Paralyzing Regulation It's Hard To Celebrate

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Happy GDPR day! At least if you can manage to be happy about a cumbersome, punitive, unprecedentedly extraterritorial legal regime that hijacks the resources of businesses everywhere without actually delivering privacy protection commensurate with the enormous toll attempts to comply with it extract. It's a regulatory response due significant criticism, including for how it poorly advances the important policy goals purportedly prompting it.In terms of policy goals, there's no quarrel that user privacy is important. And it's not controversial to say that many providers of digital products and services to date may have been let's just say, insufficiently attentive to how those products and services handled user privacy. Data-handling is an important design consideration that should always be given serious attention. To the extent the GDPR encourages this sort of "privacy by design," it is something to praise.But that noble mission is overwhelmed by the rest of the regulatory structure not nearly so adeptly focused on achieving this end, which ultimately impugns the overall effort. Just because a regulatory response may be motivated by a worthwhile policy value, or even incorporate a few constructive requirements, it is not automatically a good regulatory response. Unless the goal is to ruin, rather than regulate, knotty policy problems need nuanced solutions, and when the costs of complying with a regulatory response drown out the intended benefit it can't be considered a good, or even effective, policy response. Here, even if all the GDPR requirements were constructive ones - and while some are, some are quite troubling - as a regulatory regime it's still exceptionally problematic, in particular given the enormous costs of compliance. Instead of encouraging entities to produce more privacy-protective products and services, it's instead diverted their resources, forcing them to spend significant sums of money seeking advice or make their own guesses on how to act based on assumptions that may not be correct. These guesses themselves can be costly if it results in resources being spent needlessly, or for enormous sums to be put in jeopardy if the guesses turn out to be wrong.The rational panic we see in the flurry of emails we've all been getting, with subject lines of varying degrees of grief, and often with plaintive appeals to re-join previously vibrant subscriber communities now being split apart by regulatory pressure, reveals fundamental defects in the regulation's implementation. As does the blocking of EU users by terrified entities afraid that doing so is the only way to cope with the GDPR's troubling scope.The GDPR's list of infirmities is long, ranging from its complexity and corresponding ambiguity, to some notably expensive requirements, to the lack of harmonization among crucial aspects of member states' local implementations, to the failure of many of these member states to produce these local regulations at any point usefully in advance of today, and to the GDPR's untested global reach. And they fairly raise the concern that the GDPR is poorly tailored to its overall policy purpose. A sound regulatory structure, especially one trying to advance something as important as user privacy, should not be this hard to comport with, and the consequences for not doing so should not be so dire for the Internet remaining the vibrant tool for community and communication that many people - in Europe and elsewhere - wish it to remain being.

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posted at: 12:00am on 26-May-2018
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Woof: The Prosecco People Successfully Oppose A Pet-Treat Company's 'Pawsecco' Trademark Application

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In the realm of the alcohol industry, the French champagne makers have distinguished themselves for their jealous protection of the name of their sparkling white wine. This protectionism is taken to the extreme, with association groups representing champagne makers essentially forbidding anyone else from even using the term. France's neighbor, Italy, has its own sparkling white wine called prosecco. And it seems that the makers of prosecco are trying to take a page from their champagne-making cousins in "protecting" their trademarks to a ridiculous degree.A maker of drinks for pets recently tried to trademark the name of a product it makes called "Pawsecco." The pet treat is not alcoholic, is sold only to pet owners, and is, frankly, puntastic. Despite all of this being supremely obvious, Woof and Brew faced a trademark opposition from the prosecco people.

‘Pawsecco’ was opposed by Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, the Italian organisation responsible for the protection and promotion of Prosecco’s PDO. The PDO relates to wines deriving from a particular vine species, within specific grape-growing areas in Italy. For a wine to qualify as Prosecco there are also unique bottling and labelling requirements. Consorzio said the applied-for mark would be confused with its earlier registered EU trademark (EUTM), which features the words ‘Prosecco PDO’ in a circle around the silhouette of glasses (EUTM number 11,619,764).
Okay, a couple of things here. First, the claims of potential confusion are clearly ridiculous. The products in question are not remotely similar, save for a tongue-in-cheek pun-based name Woof and Brew devised for its product. Even that pun is of the kind that clearly identifies the product differences and comes as part of a long-running tradition of pet stores punning known brands in selling their pet equivalents. Any clear reading of this opposition leaves the reader thinking that it is absolutely absurd.Second, is this really the best look for a trade group representing prosecco makers? After all, embedded in the opposition is that its products, billed as a classy, high-quality sparkling wine, could be confused with something pet owners feed to their dogs. Is that really the claim the consortium wants to make?Amazingly, despite all of this, Team Prosecco actually won its opposition. After admitting in its ruling that there is no chance for public confusion over any of this, the UK IPO then decided that the very allusion to prosecco warranted a refusal of the "Pawsecco" mark.
It agreed with Consorzio’s assertion that the ‘Pawsecco’ mark was “coined in order to allude to a type of wine”, though the IPO noted that “it is highly unlikely that pet owners would assume that the product was actually wine”.Overall, “the nature of the whole marketing strategy appears predicated upon an assumption that the potential consumer will see the evocation,” the IPO said, adding it is an “inevitable conclusion” that Woof and Brew saw “some form of commercial benefit in choosing (and using) the name that it did”. Woof and Brew is therefore “taking advantage of the strong reputation possessed by the PDO, riding on its coat-tails”, and to “tolerate such use would not promote fair competition”, the IPO concluded.
And so Woof and Brew doesn't get its trademark and has to pay the consortium nearly $3,000 for costs incurred in opposing the trademark. All for a trademark conflict that the IPO itself admits contains no risk for confusing the public consumer.And they say trademark laws are broken.

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posted at: 12:00am on 25-May-2018
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Report On Milwaukee PD Body Cams Show Fewer Complaints, Fewer Stops, But No Reduction In Use Of Force

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The Milwaukee PD is (or was) staring down the barrel of a DOJ consent decree for its unconstitutional policing (mainly stop-and-frisk) and routine deployment of excessive force. This is among the many concerns brought to light last year by the DOJ's draft report on the department.

The Milwaukee Police Department fails the community and its own officers by not communicating clearly, making too many traffic stops and applying inconsistent standards when disciplining officers, according to a draft of a federal report obtained by the Milwaukee Journal Sentinel.The draft report offers a particularly damning critique of Chief Edward Flynn's reliance on data, a signature component of his strategy since he took over the department in 2008. Federal evaluators found this approach is having a damaging, if unintended, effect on police-community relations.“MPD’s attention to crime data has distracted the department from the primary tenet of modern policing: trust between law enforcement agencies and the people they protect and serve,” the draft report states.
The DOJ also found officers had no idea what community policing entailed, suggesting it only applied to other officers officially designated as community liaisons. The DOJ highlighted the disconnection between the MPD's statements and actions on community policing using this depressing anecdote.
[T]he Milwaukee Police Department doesn’t have a strategic plan for community policing or a set of guidelines regarding it, the draft report says. And department-wide training on how to implement the strategy has not been offered in years.Federal evaluators highlighted one example of an attempt at community engagement that fell flat.Officers held a roll-call, or shift change, outside a Milwaukee school. The stated purpose was to let kids know officers wanted them to have a safe summer. The problem? There were no kids in sight, not even student leaders.The evaluators noted the event may even have sent the wrong message: That the students on summer break were a problem, and the police planned to deal with them.
This draft may never coalesce into an official report. AG Jeff Sessions' full-blooded support for law enforcement includes allowing them to be a law unto themselves by killing off DOJ investigations of misbehaving police forces. What's in the draft report is damning, but it will probably remain a draft in perpetuity.The PD's responsiveness to community unhappiness did at least result in one change: a pilot program equipping officers with body cameras. Unfortunately, the cameras appear to have done little to address one community complaint.
Milwaukee police officers with body cameras made fewer stops and were less likely receive a citizen complaint, a new study has found.But when it comes to use of force — the primary reason residents clamored for officers to use the cameras — it didn't matter if officers had the cameras or not. They used force at roughly the same rates.
The PD claims this report [PDF] vindicates officers and the department itself, at least in terms of accusations of excessive force deployment. According to the PD, the conclusions make it clear officers have applied force in accordance with policy. But that's stretching the findings a bit much. It could also mean the deterrent effect one assumes the cameras would have simply hasn't materialized. Officers may feel footage is at least as likely to clear them as damn them and are willing to roll the dice.And the dice come pre-loaded: officers are given weeks or months to make statements when accused of deploying excessive force. And while statements from witnesses are recorded, those made by officers are not, allowing them to retcon narratives if body cam footage refuses to align with the official narrative. The body cam footage may be a new twist, but the internal investigation process has been an issue for a long time. It, too, receives criticism in the DOJ's draft report.
When it comes to officer-involved shootings, the cases reviewed by the Justice Department were inconsistent and the documentation was inadequate.In both non-fatal shootings and other uses of force, information about officers’ training, prior use of force, complaints and discipline were not included in internal affairs files.That information also does not seem to have an effect on whether officers are promoted.
One number that did drop in the wake of camera deployment is street stops. Officers wearing cameras performed far fewer stops than officers without them. This suggests the stop-and-frisk program the PD is currently being sued over tends to make the Constitution an afterthought. Documentation of unconstitutional stops isn't going to help the PD emerge victorious in this lawsuit and the simplest solution is to leave those stops to officers without cameras.It's not all negative, however. As noted above, officers with cameras received 50% fewer complaints, suggesting the presence of another "witness" causes both parties to treat each other with a little more respect. Camera use can result in de-escalation, which is something rarely willfully practiced by officers.But we can't read too much into that either. The drop in complaints is tracked by a drop in stops, which may suggest the cameras aren't "civilizing" interactions so much as fewer of them are taking place.Body cams are band-aids, at best. They can never be a panacea, but they're far from useless. Things do change when law enforcement operates under additional scrutiny. But they don't change as quickly or dramatically as proponents of cameras hope they will. A seismic cultural shift is needed in most departments and body cameras will only incrementally increase the speed in which bad apples are expunged from the barrel. But the barrel will still be filled with slightly-less-rotten apples. That being said, cameras should be a requirement as should the presumption that missing footage weighs against a cop's statements. Just because they're not working as well as many of us thought they would doesn't mean it's without its merits.

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posted at: 12:00am on 25-May-2018
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