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October 2017
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The Big Picture: Online Retail Holiday Traffic

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Hitwise has produced Hourly Peak Week Trends: What to Look Out For on Black Friday & Cyber Monday 2017. You can download the whole report here. A Quick Look To start, let's take a look at total traffic to the Hitwise Retail 500 over the last few holiday seasons. Retailers received 11.7 billion visits during [...]

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posted at: 12:00am on 17-Oct-2017
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Neighbor Sues For $2.5 Million After Renovation Looks Too Much Like Their Own House

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Copyright on home design has always been a really sketchy idea. Earlier this year, we wrote about a disturbing trend of housing copyright trolls and have had some other similar stories over time. For reasons that are beyond me, the Berne Convention requires copyright on architecture, and that creates silly situations, such as the one in Australia, where a homeowner was forced to modify their home due to "infringement."And this nonsense has spread to Canada. The Toronto Star has the story of a couple, Jason and Jodi Chapnik, living in Forest Hill, Toronto (one of the "most affluent neighborhoods" in Toronto), who sued their neighbors for $2.5 million for the horrific faux pas of renovating their house to look too much like the Chapniks.

Jason and Jodi Chapnik, who own the home on Strathearn Rd., near Bathurst and Eglinton Sts., alleged that a house on nearby Vesta Dr. was newly renovated to look strikingly similar to theirs including using the same shade of blue and matching grey stonework.The Chapniks filed a lawsuit against neighbour Barbara Ann Kirshenblatt, her builder husband and architect brother-in-law for copyright infringement in federal court, as well as the real estate agent who profited from the house's recent sale and the anonymous contractors who worked on the house. They were seeking $1.5 million in damages, $20,000 in statutory copyright damages, $1 million in punitive damages, and a mandatory injunction on the defendant to change the design of the home.
Of all the things in the world to be concerned about, how totally screwed up must your priorities be to freak out that someone around the corner has a house that looks kinda similar? The story notes that the case went on for 3 years, before recently being settled. As Kirshenblatt noted in filings in the case, nearly all of the so-called copied features appear to be pretty standard features you'd see in nearly any Tudor-style house -- and they pointed to other properties (including a Scottish castle) with similar features that they based their house on.The whole thing is a reminder, yet again, of the ridiculousness of locking up ideas like home design under copyright. No one is inspired to design a house because of the copyright you get. There is no necessary incentive there. People design homes not for the copyright, but for the home. What a complete waste of time.

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posted at: 12:00am on 17-Oct-2017
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Court Tells Sheriff's Dept. Shackling Kids Above The Elbows Is Excessive Force

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You wouldn't think it would take a federal court decision to make this clear, but here we are.

A school resource officer in Kentucky who handcuffed young children acted unreasonably and violated the children's constitutional rights, a federal judge ruled this week.Two children, ages 8 and 9, were handcuffed by Kevin Sumner, a school resource officer with Covington Independent Public Schools. They were cuffed behind their backs, and the cuffs were placed above their elbows because the restraints would have slipped off their wrists. Video of the handcuffing of the 8-year-old went viral after it was made public by the American Civil Liberties Union in 2015
The ruling [PDF] restates common sense, albeit in 33 pages of legalese. It is excessive force to restrain preteens who weigh less than 60 lbs. with handcuffs meant to keep full-grown adults from moving their arms. The procedural history notes school personnel are forbidden from using mechanical restraints on students by state law. This law, however, does not forbid law enforcement officers from using handcuffs on students.In both cases, the students cuffed by a sheriff's deputy had been combative. School personnel turned both students over to the SRO once it became obvious they would not be able to calm the students down. The combativeness didn't stop once the deputy entered the picture. These would appear to be arguments in the deputy's favor but only if other factors weren't considered -- like the students' ages and sizes. Both children also suffered from behavioral disorders.Nonetheless, this is what happened once Deputy Kevin Sumner took control of the situation:
Sumner handcuffed S.R. behind his back, placing the cuffs on S.R.’s biceps above the elbows. The video shows that S.R.’s arms are pulled tightly behind his back with what appears to be only approximately three or four inches between his elbows. Sumner testified that he checked the handcuffs for tightness and that, since the chain connecting the handcuffs was nearly as long as the width of S.R.’s body, he had no reason to believe it would cause him pain. The video clearly demonstrates, however, that the chain is not nearly as wide as S.R.’s body, and that his arms are extremely taut.[...]Sumner pulled L.G. off of Craig and tried to hold her physically for a few minutes, but she continued the same behavior. Sumner told L.G. that if she did not stop, he would handcuff her. L.G. continued to kick and hit, and Sumner placed her in handcuffs, above her elbows behind her back. Assistant Superintendent Wilkerson contacted L.G.’s mother, who came to school to get her. Her mother testified that when she arrived, L.G. was on her knees and Sumner was holding her arms up behind her above her head. Sumner then removed the handcuffs.
Sumner tried to argue the handcuffing was permitted because state law exempted law enforcement officers from the restriction on restraint methods. The court says that's all well and good, but it doesn't change the outcome. No matter which "hat" -- school personnel or law enforcement officer -- Sumner was wearing, the force used was excessive.
Applying the Graham factors, the severity of the “crime” committed by S.R. and L.G. — assault — weighs in their favor. While S.R. kicked a teacher and L.G. tried to and/or did hit a teacher, these are very young children, and their conduct does not call to mind the type of “assault” which would warrant criminal prosecution. Indeed, Sumner testified that “none of what they did was worthy of trying to file a criminal charge.”The second factor, whether the children posed an immediate threat to themselves or others, weighs in S.R.’s favor. At the time he was handcuffed, S.R. had largely calmed down, Sumner had escorted him to the restroom without incident, and they had returned to the office. While Sumner testified that S.R. swung his elbow towards Sumner, such can hardly be considered a serious physical threat from an unarmed, 54-pound eight-year-old child.This factor weighs less in favor of L.G., who was engaging in more physical abuse towards her teachers and Sumner. Nonetheless, the age and stature of these children is highly relevant to this analysis.
Even if the cuffing were deemed appropriate, the method deployed by Sumner was not.
Finally, the method of handcuffing that Sumner employed leads this Court to conclude that his actions were unreasonable and constituted excessive force as a matter of law. The video of S.R. shows that his arms were pulled tightly behind him, with only inches between his elbows. While Sumner testified that the chain between the cuffs was as wide as S.R.’s torso, the video belies that assertion. Where a witness’s version of the facts “cannot be countenanced based upon what the video shows,” the Court must adopt the video as fact.Upon being cuffed in this manner, S.R. cried out, “Ow, that hurts.” It was thus immediately apparent that this method — which, it is undisputed, was the same method by which L.G. was cuffed — was causing pain. S.R. was left in this position to cry and squirm for fifteen minutes.
And there was no one willing to back up Sumner's claims the cuffing method was common or inexcessive -- not even those testifying on behalf of the deputy.
Plaintiff’s handcuffing expert, Robert Rail, testified that he does not know of any police instructor in the United States who would allow the elbow cuffing of children such as was used on S.R. and L.G., nor does he know of any program that teaches that method. (Rail Depo. 109-10).Even defendants’ handcuffing expert, William A. Payne — who has been conducting handcuffing training for law enforcement for over 20 years — testified that he has never trained law enforcement to use handcuffs above the elbow. (Payne Depo. 37, 121). He further testified that he was not aware of any law enforcement agency that trains their officers to use such a technique.
The court finds the cuffing method -- not the cuffing itself -- excessive. Without any prior cases on point, Deputy Sumner is granted qualified immunity because he could not have reasonably known his handcuffing methods were excessive. This is disappointing, but the court has one surprise left. The county that employs Sumner can be held civilly liable for Sumner's actions.
Kenneth Kippenbrock was the SRO Coordinator for the Kenton County Sheriff’s Office at the time of these events. He testified that Sumner’s handcuffing of S.R. and L.G. was consistent with the policy of the sheriff’s department. He also testified that since the SRO program was initiated, more than ten children have been handcuffed by SROs in schools, and it is possible that the number is more than twenty-five.Kenton County Sheriff Korzenborn also testified that Sumner acted in accordance with all applicable Kenton County policies in handcuffing S.R. and L.G. He has never asked Sumner whether Sumner has ever handcuffed other elementary children in the district, and he is not interested in knowing how often his deputies handcuff school children. Handcuffing children above their elbows behind their back is acceptable practice by his deputies.[...]Korzenborn further testified that he was not familiar with the Kentucky Administrative Regulations regarding the use of mechanical restraints in schools.[...]Korzenborn has not implemented any changes in the training of his SROs since these incidents.Given this undisputed testimony, Kenton County is liable as a matter of law for Sumner’s unlawful handcuffing of S.R. and L.J.
School resource officers won't be able to handcuff students the same way in the future and expect to walk away from resulting civil lawsuits. The unanswered question -- is it ever appropriate to handcuff pre-teens on a school campus -- remains open. But the message sent here is pretty straightforward: there's almost zero chance the court will find it acceptable to use adult handcuffs on children, because the only way to keep them on tiny bodies is to deploy them in a fashion that is excessive in nature.

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This Week In Techdirt History: October 8th - 14th

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Five Years AgoThis week in 2012, while Hollywood was wining and dining New Zealand politicians to help get their copyright demands into the TPP, the similarly bad provisions from the dead ACTA were unsurprisingly appearing in CETA. The RIAA was continuing to share bogus math, this time about the supposed decline in musicians, Microsoft was caught sending an especially amusing takedown to Google over a link to... Bing, and copyright maximalists were celebrating the settlement in the Google Books/Authors Guild lawsuit, even as another judge was ruling that book scanning is obviously fair use.Ten Years AgoThis week in 2007, there was a sea change as more and more artists began to realize that they could try different business models instead of relying on record labels, with bands rushing to embrace free distribution and even some high-profile artists like Madonna taking control of their own business. But for the most part, the recording industry was still trying the same old things, and making incredibly weak attempts to compete with folks like iTunes. Maybe basing your business on copy protection was not such a great idea.Fifteen Years AgoThis week in 2002, as the future of webcasting was unclear at best, Silicon Valley was applauding the growing efforts to fight back against Hollywood, even as the copyright battle was heating up thanks to things like broadband fearmongering and a new lawsuit against Mp3.com from some big names in music — or, most importantly, the beginning of the Eldred vs. Ashcroft case before the Supreme Court (which would sadly go on to uphold the constitutionality of the 1998 copyright extension.)

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posted at: 12:00am on 15-Oct-2017
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