posted about 1 hour ago on techdirt
On Thursday, Governor Rick Scott of Florida signed 44 bills into law, but two of them are particularly interesting to us. The first we wrote about back in March, SB 604, is a very problematic bill that undermines some basic free speech rights. It's the latest in a new push by Hollywood to undermine anonymity online as a backdoor attack on copyright infringement. Basically, it says that if you're distributing any sort of audiovisual work, you need to reveal who you are. The implications here are massive. There are lots of cases where someone may wish to post certain audiovisual works without having to post their full name, address, phone number and email address -- as the law now requires. And the First Amendment has long protected the right to be anonymous. And yet, the Florida legislature and Governor Scott signed it without much serious concern about how it's stripping away the First Amendment anonymity rights of their citizens. Oddly, however, in that very same batch of signed bills... is another bill that protects free speech rights: SB 1312, which expands Florida's (very, very weak) anti-SLAPP law. Like too many states, Florida's anti-SLAPP law originally only protected people in cases where they were sued over speech concerning government actions. The new bill expands that to "public issues" which is similar to many other anti-SLAPP bills. Considering the number of crazy defamation threats and lawsuits that seem to come out of Florida, this bill could be very, very useful in protecting free speech. Getting the anti-SLAPP bill is really important, but losing anonymity seems really dangerous. These aren't just the sort of things that "balance out" either. Either you support the First Amendment or you don't. I'm glad that Florida has a better anti-SLAPP bill, but Governor Scott shouldn't have taken away basic First Amendment protections with the same stroke of his pen in signing the "true origin" bill at the same time.Permalink | Comments | Email This Story

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posted about 2 hours ago on techdirt
The FCC this week informed broadband ISPs that the agency is no longer going to be napping at the wheel when it comes to broadband-related privacy enforcement. In a new enforcement advisory posted to the FCC website (pdf), the FCC said that with ISPs now classified as common carriers under the new Title II based net neutrality rules, the FCC's going to be taking a long hard look at improving broadband privacy protections. While the actual rulemaking process is still being worked on, the FCC will be leaning on Section 222 of the Communications Act, historically used to protect Customer Proprietary Network Information (CPNI) on phone networks. ISPs have already started complaining the FCC's imposing draconian, ancient regulations on the modern Internet, and such rules will saddle them with all manner of new costs. Of course it should be noted that most of these privacy protections are fundamental common sense -- and in some cases things most ISPs are already doing. They range from from requiring that ISPs keep private consumer data encrypted when being stored on servers, to not sharing consumer data with third parties without the explicit consent of consumers. The FCC shockingly found that absent such protections, things don't work out well for consumers:"The Commission has found that absent privacy protections, a broadband provider’s use of personal and proprietary information could be at odds with its customers’ interests and that if consumers have concerns about the protection of their privacy, their demand for broadband may decrease."Of course ISPs have grown pretty comfortable with regulators that couldn't care less about (or lacked the authority to police) broadband privacy abuses. One case in point is Verizon's recent decision to manipulate wireless traffic to create new, undeletable super cookies. Despite the fact it took security researchers two years to find Verizon's zombie cookie and another six months for Verizon to even seriously acknowledge a problem, the telco has historically tried to argue greater privacy protections aren't needed for broadband and wireless because "public shame" will keep the company honest. Many users also might recall how ISPs have long sold user clickstream data to third parties, but have historically denied that they collect any of this data whatsoever. Similarly, AT&T has been charging its gigabit fiber users a $44-$66 fee if they want to opt out of having their traffic snooped on via deep packet inspection. In both instances regulators simply couldn't have cared less. Obviously having regulators do absolutely anything at all to protect broadband user privacy is a pretty unsettling change for a industry awash in regulatory capture. While the FCC hasn't yet solidified the rules for modern broadband networks, it is telling ISPs that it can reach out to the FCC if they have any questions about how the FCC intends to interpret the rules in the snoopvertising age moving forward:"Although no broadband provider is in any way required to consult with the Enforcement Bureau, the existence of such a request for guidance will tend to show that the broadband provider is acting in good faith. The application of Section 222 offers an opportunity for broadband customers to increase their demand for broadband by knowing that their privacy is well-protected. In that goal, the Enforcement Bureau believes its interests and those of the great majority of broadband providers are firmly aligned."While I know there's an amazing amount of cognitive dissonance (my own head included) forged by the idea that a government so horrible on surveillance issues could possibly do anything good on the privacy front, the FCC's recent track record of actually giving a damn about consumer issues is encouraging. It's as if the FCC has awoken form a long, deep slumber, and after fifteen years of being an empty-headed bobble head doll, has suddenly started caring about issues like broadband competition, massive, billion-dollar telecom industry scams and state protectionist telecom laws. None of this is to suggest FCC over-reach on privacy is impossible, but based on Wheeler's behaviors of late it seems likely the FCC's just looking to impose some common sense ground rules. Still, there will certainly be no limit of handwringing among ISPs how some basic broadband privacy protections will destroy the Internet. You know, just like the net neutrality rules are obviously doing.Permalink | Comments | Email This Story

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posted about 3 hours ago on techdirt
Last year, Techdirt wrote about yet another of Russia's new laws aimed at taming the troublesome internet world. Its most striking feature was that bloggers with more than 3,000 visitors a day were required to register on a special list, and to abide by general mass media restrictions. We noted then that blogs located overseas were not covered by the new law. But according to this report in The Guardian, based on a story in Izvestia, it seems that the law is now being applied to foreign service providers too: Facebook, Google and Twitter are all being threatened with fines or even bans for non-compliance: The [Russian communications agency's] deputy director, Maksim Ksenzov, had issued a warning to the three companies on 6 May, telling them they were in violation of the bloggers law because they had not provided requested data on the number of daily visitors to several users' pages, as well as information allowing the authorities to identify the owners of accounts with more than 3,000 daily visitors. The companies are threatened with fines, but these are relatively modest: up to 300,000 roubles ($6,000) for the first offense. Subsequent infringements lead to bigger fines or a ban on the website for up to 30 days. As The Guardian points out: If the companies did not take steps to delete from their sites "information containing calls to participate in mass rioting, extremist activities" or unsanctioned public events, the watchdog would "limit access to the information resource where that information is posted", Ksenzov warned. The problem is that regional Internet service providers might not be able to provide much granularity when limiting access to these pages, leading to services from the companies concerned being blocked completely in those areas. As the Izvestia article explains, although the Russian authorities are very keen for the US companies to obey Russian law, and point out that they are simply following in the footsteps of the the European Commission, it's not clear how they could force compliance or collect any fines they imposed. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted about 4 hours ago on techdirt
The criminal activity alleged may be horrific, but that's a non-factor when it comes to the consideration of protections afforded to website owners who host third-party content. The ongoing lawsuit against Backpage.com, filed by victims of sex trafficking (who were minors at the time), has reached an end. (Until appealed, of course.) The arguments deployed by the plaintiffs were nothing new. In numerous cases, ranging from defamation claims to alleged prostitution of minors, plaintiffs have made similar arguments. The theory -- unsupported by law or common sense -- that website owners should be held legally responsible for the postings of others isn't novel. But it has yet to find a court willing to advance the theory. Why? Because doing so would result in the following sort of ridiculousness, which, while ridiculous, would chill free speech and cause many website owners to get out of the website-owning business. In their lawsuit against Backpage.com, the plaintiffs—three women who were forced into selling sex as teenage runaways—argued similarly, saying that because their trafficker found clients on Backpage, the website was responsible for their exploitation. But by this logic, Facebook is guilty whenever anyone posts a threat there, Craigslist is culpable should a landlord want "females only," and Reason is guilty should any of you folks broker a drug deal in the comments. Thankfully, section 230 of the Communications Decency Act, passed in 1996, established that the Internet doesn't work this way. A federal district court in Massachussetts addresses the multiple allegations by the plaintiffs in their argument seeking to find Backpage.com responsible for the postings of others, and finds that even in the totality, it fails to rise to the level needed to strip the site of its Section 230 protections. Singly or in the aggregate, the allegedly sordid practices of Backpage identified by amici amount to neither affirmative participation in an illegal venture nor active web content creation. Nothing in the escorts section of Backpage requires users to offer or search for commercial sex with children. The existence of an escorts section in a classified ad service, whatever its social merits, is not illegal. The creation of sponsored ads with excerpts taken from the original posts reflects the illegality (or legality) of the original posts and nothing more. Similarly, the automatic generation of navigational path names that identify the ads as falling within the “escorts” category is not content creation. The stripping of metadata from photographs is a standard practice among Internet service providers. Hosting anonymous users and accepting payments from anonymous sources in Bitcoins, peppercorns, or whatever, might have been made illegal by Congress, but it was not. Backpage’s passivity and imperfect filtering system may be appropriate targets for criticism, but they do not transform Backpage into an information content provider. Summing it up -- after dismissing all claims -- the court notes that the sexual trafficking of children is abhorrent, but that Section 230 protections aren't a sliding scale to be applied with varying amounts of force depending on the severity of the alleged actions. To avoid any misunderstanding, let me make it clear that the court is not unsympathetic to the tragic plight described by Jane Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3. Nor does it regard the sexual trafficking of children as anything other than an abhorrent evil. Finally, the court is not naïve – I am fully aware that sex traffickers and other purveyors of illegal wares ranging from drugs to pornography exploit the vulnerabilities of the Internet as a marketing tool. Whether one agrees with its stated policy or not (a policy driven not simply by economic concerns, but also by technological and constitutional considerations), Congress has made the determination that the balance between suppression of trafficking and freedom of expression should be struck in favor of the latter in so far as the Internet is concerned. Putting aside the moral judgment that one might pass on Backpage’s business practices, this court has no choice but to adhere to the law that Congress has seen fit to enact. This is buttressed by a quote from another decision, quoted earlier in the discussion of the plaintiffs' claims -- one that deals specifically with another abhorrent criminal act. Child pornography obviously is intolerable, but civil immunity for interactive service providers does not constitute “tolerance” of child pornography any more than civil immunity from the numerous other forms of harmful content that third parties may create constitutes approval of that content. Section 230 does not limit anyone’s ability to bring criminal or civil actions against the actual wrongdoers, the individuals who actually create and consume the child pornography. Here, both the neighbor [who created the child pornography] and the moderator of the Candyman web site have been prosecuted and are serving sentences in federal prison. Further, the section 230(e)(1) exemption permits law enforcement authorities to bring criminal charges against even interactive service providers in the event that they themselves actually violate federal criminal laws. In essence, just because it's easier to pursue site owners than criminals, and that any recovery of damages may seem more likely, doesn't make it the correct path for retribution. Those who trafficked these plaintiffs are the wrongdoers, not the site that hosted these criminals' ads. Permalink | Comments | Email This Story

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posted about 5 hours ago on techdirt
The proper desk set up can help you avoid injuries like carpal tunnel syndrome. Part of a good ergonomic set up is an adjustable mouse like the M535 Wireless Optical Mouse available in the store for 50% off. Gamers and desk jockeys will like that you can adjust the mouse's size to fit your hand and you can assign functions to seven different buttons to create shortcuts for common tasks. It comes with a button to send your cursor back to the center of the screen and customization is simple with the easy to use control panel. The mouse is compatible with Windows only and ships free to the continental US. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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posted about 9 hours ago on techdirt
Well, well. A few days ago, the Verge got a huge scoop in the form of Sony's original US contract with Spotify, leading to a ton of discussion (mostly focused around the huge "advances" that Spotify guaranteed Sony, and the related question of whether or not Sony actually passes those advances on to musicians). The debate raged on for a couple days, and late last night, Paul Resnikoff over at Digital Music News noticed something interesting: the original contract was now missing, and The Verge's own website claims it's due to a copyright threat from Sony: On Twitter, the Verge's editor-in-chief Nilay Patel admits that a threat from Sony forced the site to take down the contract. In fact, he claims that Sony actually sent four cease and desist letters claiming copyright infringement: Earlier this week, Resnikoff reported that Spotify was apparently putting pressure on publications not to report on the contract, including "dangling threats" to scare them off. However, Spotify would have no copyright argument here. As the Verge report (still) notes, the contract was "written by Sony Music," meaning that if there's any copyright claim (we'll get to that shortly), it's held by Sony Music. And we all know damn well that Sony loves to throw around bogus copyright threats. Even we have received one concerning reporting on Sony Pictures' leaked emails. Sony has threatened lots of other publications as well, and even Twitter over such leaks. And, Resnikoff notes that Sony Music threatened his site for an April Fool's joke, pretending to reveal internal emails concerning Sony's equity stake in Spotify. So here's the question: why did Vox (the owner of the Verge) cave? For a modern media operation, it must have lawyers that know the threat is bullshit. Yes, it is possible to get a copyright over the contract, but it's likely to be a pretty thin copyright, because the amount of "creative" work in the contract is minimal. Much of the contract is likely boilerplate. But, more importantly, the Verge has a slam dunk fair use case here. They're providing commentary on the contract. It's a matter of public interest. They're not "selling" the contract and they're certainly not harming the "market" for the contract itself, of which there is none. We actually dealt with this issue once before -- two years ago when Apple pulled the same bullshit move to pull down a contract that Resnikoff himself had posted on Digital Music News. Somewhat ironically, the first party to report on that... was the Verge! And in their report, they quoted law professor Eric Goldman noting the ridiculousness of it: "It's just kind of a jerk move. We all know what's happening here. Apple doesn't care about protecting the copyright of contracts. It's using copyright to try and suppress information that it doesn't want made public." Sounds about right when applied to Sony in this case. Besides, all this is really doing is drawing much more attention (yet again) to the contract, on a story that had already started to die down.Permalink | Comments | Email This Story

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posted about 11 hours ago on techdirt
If I've learned any single thing covering technology news it's that you can blame absolutely anything on video games. Mass violence? Games. Failure at professional sports? Pssh, games, yo. Love life not as spicy as you might like? Those games, those games. But a study that supposedly claims a link between video games and Alzheimer's Disease? Come on. “Call of Duty increases risk of Alzheimer’s disease”, said the Telegraph. “Video game link to psychiatric disorders suggested by study”, reported the Guardian. The Daily Mail posed the problem as a question, “Could video games increase your risk of Alzheimer’s?”, reminding us that whenever a news headline asks a question, the answer is no. We know that when science news is hyped, most of the hype is already present in the press releases issued by universities. This case is no exception - the press release was issued by the Douglas Mental Health University Institute, and unsurprisingly it focuses almost entirely on the tenuous link to Alzheimer’s disease. Tenuous is being exceptionally kind in this case. The study in question, produced in the Proceedings of the Royal Society B, barely focused on any link between gaming and the disease, in fact. Instead, the team of Canadian researchers were simply studying the difference in brain-wave activity with groups of gamers and non-gamers. They noticed specifically a significant difference in the activity of one type of brain-wave with gamers, N2PC, which can have an effect on attention spans. So, how did we get from that to a link to Alzheimer's? Were there clinical tests done? Was the team of researchers even in any way focused on the most famous form of dementia? No. Instead, the article describes the methodology for reaching the conclusion of a link thusly: 1. The type of learning shown by the gamers has been associated in previous studies with increased use of a brain region called the caudate nucleus 2. Increased use of the caudate nucleus can be associated with reduced volume of the hippocampus 3. Reduced volume of the hippocampus can be associated with increased risk of Alzheimer’s disease 4. Therefore (take a deep breath) video gaming could increase risk of Alzheimer’s disease That's three, three associations of mere correlation at best, with not even a shred of evidence for causality. And from that we get not only press reports of a link, which I can understand because the major media groups in Western culture have proven to be more interested in sensationalism than stuff that actually exists, but university institutions pushing out press releases to feed the hounds? That's not only wrong, it's borderline character-assassination on the wider gaming industry. Sadly, even some on the research team have gotten in on the act, likely in the hopes of generating press coverage of the study. The press release also includes a statement from the lead researcher that is a clear exaggeration. Dr Gregory West is quoted as saying “we also found that gamers rely on the caudate nucleus to a greater degree than non-gamers”. Actually they didn’t find this at all, because their study didn’t measure activity in the caudate nucleus. Instead it measured a type of behaviour that previous studies have associated with activity in the caudate nucleus. There is a world of difference between these two, and readers would do well to take these latest claims with a generous helping of salt. No, man! Salt intake is associated with water retention, which is associated with bloating, and weight-gain can be a factor in spousal infedelity, therefore salt leads to my wife cheating on me if I take these grains you prescribe! Permalink | Comments | Email This Story

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posted about 14 hours ago on techdirt
Whenever our friends in Pyongyang decide to troll the planet with one of their hilariously bad propaganda pieces, it always makes me wonder just how serious the North Korean regime is about this whole war thing. I mean, using video game footage and music to threaten 'Merica? C'mon, son. And those photoshopped photo-ops of your human-chicken-dumpling leader just don't inspire much confidence in the country's technological capabilities. But it's when North Korea combines war and fun-bad photoshopping that the real fun begins. Take the country's recent press brag, for instance, in which North Korea announces that they've managed to launch a missile from a submarine. Experts, it appears, aren't all that impressed with the photo. That was particularly the case when the state-run Pyongyang press circulated other photos of the launch that were complete with columns of smoke from the missile, columns of smoke conspicuously absent from the initial photo that was circulated above. As Markus Schiller and Robert Schmucker, of Schmucker Technologie, told Reuters, “Considering the track record of North Korean deceptions, it seems sensible to assume that any North Korean SLBM [submarine-launched ballistic missile] capability is still a very long time in the future, if it will ever surface.” What the column-less photo lacked in smoke, it made up for with weird, poorly placed ocean smudges. That reddish patch of water you see to the left of the missile? That’s supposed to be the rocket’s reflection. And, so, sadly, the only thing this launch report from North Korea tells us is that they still haven't gotten photoshop down. Oh well. If they ever did get into an actual shooting war again, I suppose they could always just photoshop themselves into some kind of victory pose. Given how often their progress with weapons technology turns out to be non-progress at photo-bullshitting, such a war is probably a remote possibility. Several of the commenters over at Gawker offered to help them out, of course, though this one is probably my favorite. Call in Mario Marine!Permalink | Comments | Email This Story

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posted about 18 hours ago on techdirt
Last year, we wrote about two key "corruption indicators" in city and state governments: they ban direct sales models to block Tesla from competing with traditional car companies and they ban Uber/Lyft style car hailing services to protect local taxi incumbents. It appears that Texas is really trying to wave its anti-innovation flag as strongly as possible as the legislature down there failed to move forward on two key bills that would have made it possible for Tesla to do direct sales in Texas... and to stop local cities from blocking Uber & Lyft to favor taxi incumbents. A Texas House deadline has come and gone, killing many top-priority bills for both parties — among them one that would allow Tesla-backed direct car sales and another to regulate ride-hailing companies. Midnight Thursday was the last chance for House bills to win initial, full-chamber approval. Since any proposal can be tacked onto other bills as amendments, no measure is completely dead until the legislative session ends June 1. But even with such resurrections, actually becoming state law now gets far tougher. And, of course, this comes just after the FTC warned Michigan for its blocking of direct sales of cars like Tesla. The failure to allow direct sales is a much bigger deal than the car hailing stuff, but both are bad. And the response from Texas politicians is really quite disgusting: Rep. Senfronia Thompson — one of the House's most senior members currently serving her 20th term — said it was the company's own fault that the bill didn't pass. "I can appreciate Tesla wanting to sell cars, but I think it would have been wiser if Mr. Tesla had sat down with the car dealers first," she said. Really? In what world is it considered appropriate to force an innovative company that wants to go direct to consumers to first "sit down" with the gatekeepers that are trying to block them? "I can appreciate Amazon wanting to sell books to people, but I think it would have been wiser if Mr. Amazon had sat down with retail store builders first." "I can appreciate YouTube wanting to let anyone upload videos, but I think it would have been wiser if Mr. YouTube had sat down with TV producers first." That's not how innovation works. At all. And thus, we can cross Texas off the list of innovative states. The law around car hailing is not quite as big of a deal, but without the new Texas law, various cities within Texas can still create their own rules that would effectively make it impossible for such services to operate there. There are states that create spaces for innovation -- and then there are those that protect incumbents. Texas appears to be making it clear that it's the latter. If I were a startup in Austin, I might consider finding somewhere else to operate.Permalink | Comments | Email This Story

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posted about 22 hours ago on techdirt
Science is getting more and more complicated as we learn more and it becomes nearly impossible for any single human being to understand, let alone perform, all of the experiments necessary to push the boundaries of knowledge out a little further. It seems that the field of particle physics is quite accustomed to publishing papers with "kiloauthors" without a problem, but the practice may be extending to other fields now as well. (Just imagine how long the copyright should last... lifetimes of the authors plus 70 years.) The paper describing the first observation of the Higgs Boson has 5,154 authors listed. The Higgs Boson is responsible for imparting everything with mass, and apparently its observation imparts nearly every physicist with credit. [url] The previous record-holder for most number of authors for a scientific paper is "Initial Sequencing and Analysis of the Human Genome" with over 2,900 authors. This paper missed credits for 6 authors and added them to the top of the list. Recognition is always appreciated.... [url] A recent fruit fly paper named 1,014 authors and sparked a discussion about the meaning of authorship. The names of over 900 undergraduate students were included in this publication, recognizing those students' "significant intellectual contribution" to the project. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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posted about 23 hours ago on techdirt
Social media. So popular. And so very, very incriminating. The less-than-illustrious history of many a criminal who felt obliged to generate inculpatory evidence via social media postings has been well-detailed here. But what if you want to hide your indiscretions and malfeasance? If you've posted something on any major social network, chances are it will be found and used against you. On May 19, 2014, Brannon Crowe sued his employer, Marquette Transportation. Crowe claimed that, in April 2014, he had an accident at work that “resulted in serious painful injuries to his knee and other parts of his body.” Crowe sued for pain and suffering, medical expenses, lost wages, past and future disability, and other special damages. But Crowe may have unwittingly shot himself in the foot (or maybe the knee). The reason? Facebook. Around the time Crowe suffered his injuries, he sent a Facebook message to a friend saying that he had actually hurt himself while on a fishing trip. How Marquette Transportation got its hands on the message is unclear. Nonetheless, the message led Marquette Transportation to seek other Facebook information from Crowe in discovery. On October 17, 2014, Marquette Transportation specifically requested “the Facebook history of any account(s) that [Crowe] had or has for the period commencing two (2) weeks prior to the incident in question to the present date.” Crowe presented a variety of novel defenses in hopes of escaping Marquette Transporation's examination of his Facebook account -- one of which was that he had no Facebook account. Plaintiff objects to this Request as vague, over broad and unduly burdensome. Plaintiff further objects to the extent this Request seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding said objections and in the spirit of cooperation, plaintiff does not presently have a Facebook account. Note the qualifier "presently." Crowe later testified in his deposition that he stopped having a Facebook account “around October” of 2014. Oddly coincidental. Marquette served its written discovery upon Crowe’s counsel on October 17, 2014. (Rec. doc. 16-1 at p. 1). Crowe’s Facebook records from the “Brannon CroWe” account indicate that account was deactivated on October 21, 2014. Counsel for Marquette is entitled to explore the timing of this deactivation. "Stopped having" actually meant "deactivated his account." Crowe didn't go so far as to delete the account, which might have made the damning post a bit more difficult to recover. But he wanted to keep his account alive for use at a later date. This didn't escape the court's notice. The same Facebook records indicate that the account was accessed routinely by an iPhone with an IP address of 108.215.99.63 beginning well before the alleged accident up to and including on the date of deactivation. On January 7, 2015, the account was reactivated by the same iPhone with the same IP address. Counsel for Marquette is entitled to explore these matters, particularly given the current dispute over the status of Crowe’s iPhone service and whether he was able to and did send “text messages” to others at points in time when he claimed to be unable to do so. Crowe's shovel-wielding skills far outpace his ability to hide incriminating information. But as is the case with shovel wielders, even the most efficient can do little more than dig holes of increasing depth. When this foolproof plan to thwart Marquette Transportation's discovery request failed, Crowe deployed Plans B, C and D, with similar results. Similarly, counsel for Marquette is entitled to analyze the thousands of pages of Facebook messages Crowe exchanged with others, including his co-worker, Robert Falslev, particularly given his testimony that his account: (1) did not use a capital “W” in its name, (2) that it was hacked, and (3) that he did not send one particular Facebook message to Falslev stating he was injured fishing, rather than on the Marquette vessel. Crowe's counsel, now presumably righteously pissed, produced the records sought by Marquette -- in bulk. Pursuant to the Court’s Order quoted above, Crowe, through counsel, has now submitted to the Court for in camera review an astonishing 4,000-plus pages of Facebook history from the account “Brannon CroWe.” While the Court has made a preliminary review of certain of these materials, it is not about to waste its time reviewing 4,000 pages of documents in camera when it is patently clear from even a cursory review that this information should have been produced as part of Crowe’s original response. This production makes it plain that Crowe’s testimony, at least in part, was inaccurate. That alone makes this information discoverable. The court may not be interested in looking through Crowe's obviously very active (before it suddenly, suspiciously wasn't) Facebook account, but I would imagine Marquette's lawyers will find the time to do so. But even in Crowe's self-inflicted dark cloud, there's a silver lining -- albeit one brought about by his desire to save his (supposedly hacked-with-a-capital-W) Facebook account, rather than see it (and the incriminating post) vanish into the ether. Crowe may have inadvertently saved himself at least some trouble with the Court by deactivating his account rather than deleting it. This duty to preserve evidence in litigation extends to social media information and is triggered when a party reasonably foresees that evidence may be relevant to issues in litigation. As soon as he placed the source of his injuries at issue, Crowe triggered the duty to preserve. Deleting relevant social media data can result in sanctions against the deleting party because the information is not recoverable, which implicates spoliation of evidence issues. In contrast, Crowe’s Facebook data was still accessible upon a simple re-login. The court won't offer Crowe much sympathy in the future, but it's not likely to pursue sanctions. That's about all there is in terms of good news. The effort made to hide the evidence doesn't make Crowe look any less guilty. Social media platforms are bad places to do bad things. Even swift deletions can be recovered with timely court orders and an internet's worth of cached pages and third-party content aggregators often assures that deleted postings will live on in one form or another. Permalink | Comments | Email This Story

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posted 1 day ago on techdirt
It really shouldn't take a judge's order to make this clear to law enforcement officers: a citizen invoking their rights isn't doing anything illegal, suspicious or otherwise signalling an involvement in criminal activity. These are simply their rights and they can choose to assert (or waive) them as they see fit. But that's what it takes, because almost anything that isn't an immediate capitulation to a law enforcement officer's demands is often met with dubious actions, arrests and deployment of force. Deborah Barker was arrested for methamphetamine possession after an Oregon police officer performed a warrantless search of the contents of her purse. Her motion to suppress was denied by a lower court, but the state appeals court found otherwise. From the ruling: Defendant was a passenger in a truck driven by her husband, which was stopped by Oregon State Police Trooper Ratliff on suspicion of driving while intoxicated. Ratliff noticed that defendant’s husband was “overly nervous” and that there was a bottle of alcohol on the seat, as well as many knives, lighters, and trash in the truck. We'll stop right here and discuss a couple of things. First, officers regularly declare people they stop to be "nervous" and use that as the "reasonable suspicion" they need to prolong the stop and start fishing for criminal charges. This is obviously a very handy "tool," because almost every citizen is more nervous than usual when speaking to people who are not only armed, but possess incredible amounts of power. Judges, fortunately, are pushing back on this assertion more frequently. Just recently, the Tenth Circuit Court pointed out that "nervousness" does not equal reasonable suspicion, although the totality of other elements (rented car in another's name, inconsistent travel plans) certainly did. Another told the DEA that nervousness -- even when combined with three cellphones and a past criminal history -- did not automatically rise to the level of reasonable suspicion. But it still must work often enough, because "nervousness = reasonable suspicion" doesn't seem to be going away. Second, the condition of the vehicle's interior is also cited as "reasonable suspicion" -- namely that it had trash and lighters in it. Paradoxically, law enforcement almost simultaneously claims that the absence of drug paraphernalia/trash is inherently suspicious. Here it is arguing that a clean car is a drug trafficker's car in a Seventh Circuit Court decision from earlier this month: A ten-minute search turned up nothing, save for two cell phones. The interior of the car was “spotless” and had no other personal effects, which the officers believed was suggestive of the car being a “trap car” used for drug trafficking. You can't win. But you can try to even the odds. Defendant was wearing a dress, and Ratliff did not believe she had any weapons in her pockets. Ratliff asked defendant if she had any weapons in her purse, and defendant replied, “I don’t want you to search my purse.” The officer asked her to place the purse on the hood of the vehicle for "safety" reasons. (Not completely unreasonable, considering Barker hadn't answered one way or the other on the question about whether the purse held a weapon.) It fell open a little, exposing a small, gray scale. This led to the assumption of the probable cause needed to effect an arrest of Barker, combined with Barker's appearance ("leathery") and "drug history." All well and good, but the officer then decided to search the purse without a warrant, ultimately discovering a small amount of meth hidden in a wallet. And that's where it ran into problems. First, Officer Ratliff made this assertion, which basically states that "innocent" people don't force cops to respect their rights. Ratliff went on to note that the “innocent motoring public doesn’t generally have those indicators. They don’t get out of the vehicle and tuck their purse tightly with them and immediately refuse search.” The lower court bought Ratliff's arguments and refused to suppress the fruits of the warrantless search. The appeals court, however, looked at each element the state claimed added up to permission to warrantlessly search Barker's purse and found them all wanting -- those being Barker's history of drug use, the vehicle's appearance, Barker's appearance ("leathery," clenched teeth), dilated pupils, in possession of a small scale and refusing to allow an officer to search her purse. As we have previously held, the mere fact that a defendant has a history of drug use does not provide an officer with reasonable suspicion to stop a defendant, let alone probable cause to search or arrest. [...] For similar reasons, defendant’s inability to remain still and dilated pupils also contribute little to establishing probable cause. [...] [T]he record in this case lacks evidence to support an objectively reasonable inference that, even if the scale was used in connection with controlled substances, it was more likely than not that defendant was in current possession of controlled substances, as residue on the scale or otherwise. Finally, it addresses the claim that Barker's control of her purse was yet another factor contributing to her apparent guilt. The state argues that “[t]he strongest indicator that defendant was in possession of drugs was her conduct towards her purse.” But that's completely wrong, according to the court. It's not a "strong indicator." It's an assertion of rights. When an individual seeks to protect an item and openly asserts his or her privacy rights, that behavior and assertion is neither innately shifty nor sinister—rather, it is constitutionally protected. And, “[a]llowing the police to conduct a search on the basis of the assertion of a privacy right would render the so-called right nugatory.” State v. Brown, 110… Although furtive behavior may contribute to probable cause, asserting a constitutionally protected privacy right cannot. Defendant’s protective behavior to safeguard the privacy of her purse and her statement that she did not want it searched are not properly considered as part of the totality of the circumstances and may not contribute to probable cause. In short (and as summed up in a footnote), police cannot use someone's constitutionally-protected right to refuse a search as probable cause to justify a search. The ruling is reversed and remanded and the police are now in the same position they were before they performed the warrantless search: looking at someone they want to arrest but without the probable cause to do so. And now it's so much worse because the officer knows Barker was in possession of a controlled substance but can't do anything about it. With the evidence suppressed, the single possession charge resulting from this arrest no longer exists. These rights weren't granted to citizens just so the government could use any exercise of them against those availing themselves of these protections. They were supposed to safeguard citizens against governmental overreach and abuse of its powers, but default mode seems to be that only the guilty assert their rights. This mindset is so perverse -- and so pervasive -- that it has to be beaten back one court decision at a time. Law enforcement officers treat assertions of rights as, at best, an annoyance and at worst, tacit admissions of guilt. To operate under such a twisted interpretation displays an almost incomprehensible level of privilege -- where government agents are owed whatever they request and any failure to cooperate is treated with suspicion. Permalink | Comments | Email This Story

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A report by the FBI's Office of the Inspector General (OIG) on the agency's use of Section 215 collections has just been released in what can only be termed as "fortuitous" (or "suspicious") timing. Section 215 is dying. It was up for reauthorization on June 1st, but the Obama administration suddenly pushed that deadline up to the end of this week. Sen. Mitch McConnell took a stab at a clean reauth, but had his attempt scuttled by a court ruling finding the program unauthorized by existing law and the forward momentum of the revamped USA Freedom Act. And, as Section 215's death clock ticked away, Rand Paul and Ron Wyden engaged in a filibuster to block any last-second attempts to ram a clean reauthorization through Congress. The report focuses mainly on the FBI's 2007-2009 use of the program in response to previous OIG recommendations and alterations ordered by the FISA court. As is to be expected in anything tangentially-related to the NSA, it's full of redactions, especially in areas where a little transparency would go a long way towards justifying the FBI's belief that the program should continue in a mostly-unaltered state. Redactions like this do absolutely nothing to assure the public that the program is useful and/or considerate of citzens' rights. Areas dedicated to discussing controls of the obtained data are similarly obscured. Whatever policies the FBI adopted in terms of minimization, dissemination and oversight at the recommendation of the OIG are covered in black ink. What information does actually make its way past the redactions shows that what's collected (and turned over to the FBI) goes far beyond the "just" telephone metadata often claimed to be the primary target of the program's collections. Far from being just business records -- something the public supposedly has no 4th Amendment-related privacy interest in -- the Section 215 program also allows the FBI to obtain "non-public" records and data. In the 2008 report, we recommended that the Department implement minimization procedures for the handling of nonpublicly available information concerning U.S. persons in response to Section 215 orders… More sentences scattered throughout the report hint at expansive collections going far beyond the business records covered by the Third Party Doctrine. As noted in the report, reauthorizations of the Patriot Act expanded the program's reach far beyond what was allowed in its earliest iterations -- from business records from certain approved sources to "any tangible thing." This, combined with a continually-lowered threshold for "relevance" has resulted in the following: We found that [redacted] of [redacted] applications submitted to the FISA Court on behalf of the FBI requested materials related to Internet activity. [p. 7] Materials produced in response to Section 215 orders now ranges from hard copy reproductions of business ledgers and receipts to gigabytes of metadata and other electronic information. [p. 8] We reviewed [redacted] related Section 215 applications that requested subscriber and transactional information for [redacted] e-mail accounts from U.S. providers. [p. 40] The report also notes that minimization procedures do not apply to "publicly-available information," possibly indicating that the FBI's interpretation of the Third Party Doctrine allows it to retain and search non-relevant information on US persons, as well as disseminate it freely without fear of breaching its internal policies. The FBI's "Final Procedures" -- adopted in the wake of the FISA court's smackdown of the NSA, as well as on the recommendation of the OIG -- only applies to "nonpublicly available information." The OIG also cautions that technological advances have blurred the line between communications and metadata and warns the FBI that vigilance will be needed to keep the two separate. This statement points to the eventual development of further minimization procedures, but if it's anything like the last set of OIG recommendations, it will be years before the FBI gets around to putting anything in motion. We found the Supplemental Orders significant because the practice began almost 3 years after the Department was required by the Reauthorization Act to adopt specific minimization procedures for material produced in response to Section 215 orders, and over a year after we found that the Interim Procedures implemented by the Department in September 2006 failed to meet the requirements of the Reauthorization Act. The Department and FBI ultimately produced final minimization procedures specifically designed for Section 215 materials in 2013. The Attorney General adopted the FBI Standard Minimization Procedures for Tangible Things Obtained Pursuant to Title of the Foreign Intelligence Surveillance Act on March 7, 2013 (Final Procedures), and in August 2013 the Department began to file Section 215 applications with the FISA Court which stated that the FBI would apply the Final Procedures to the Section 215 productions. Given the significance of minimization procedures in the Reauthorization Act, we do not believe it should have taken 7 years for the Department to develop minimization procedures or 5 years to address the OIG recommendation that the Department comply with the statutory requirement to develop specific minimization procedures designed for business records… The report also contained details on numerous instances of potential abuse of the Section 215 collections. Most of these discussions are redacted, but one reveals enough information to indicate the FISA Court was used to obtain information pertaining solely to a US person, as well as other intriguing (but mostly censored) incidents where FBI agents apparently felt FISA Court orders were more useful and expeditious than National Security Letters -- something of an anomaly for an agency that has so thoroughly abused its administrative privileges. What is clear from these heavily-redacted recountings is that the FBI uses court orders designed for foreign intelligence gathering for domestic investigations, as well as to aid the agency in its cyberwar efforts. The report also takes note of the severe restrictions imposed by the FISA court in 2008 after uncovering widespread abuse of the metadata collections by the NSA. It points out that several of these restrictions were lifted after an end-to-end review showed no instances of abuse by the agency during the period examined. In addition to confirming that the NSA collects from providers (plural) -- despite the government's arguments to the contrary when disputing plaintiffs' standing in Section 215-related lawsuits -- the report also points to the FBI and NSA obtaining records they shouldn't have had access to by an overly-helpful telco. [N]SD reported to the FISA Court in March 2011 that in December 2010 and January 2011 NSA technical personnel discovered that the telephony metadata produced by a telecommunications provider included [redacted]. NSA contacted the carrier and was informed that a software change made in October 2010 resulted in this occurrence. According to the NSD's compliance notice filed with the Court, beginning on or about January 14, 2011, the telephony metadata did not include [redacted]. The NSA subsequently provide updates to the FISA Court describing the methods taken to purge the [redacted] from its databases. And, as is the case with nearly every FBI document release, there's some over-redaction that serves no purpose other than to make the agency look foolish. In June 2013, former NSA contract employee Edward Snowden caused to be publicly released documents relating to the bulk collection of telephony metadata and the Office of the Director of National Intelligence has since declassified aspects of this program. We have included a description of the NSA program, [redacted] in the body of this report. The Department relied on [redacted] to obtain FISA Court orders [redacted]. So much for the transparency push. Despite leaks and declassification in response, the FBI withholds information already in the public domain. Additionally, the document could have shed some light on the FBI's current Section 215 activities, but instead the agency has chosen to hide every last bit of discussion on its ongoing efforts. [pp. 68-72] FBI head James Comey continues to insist there needs to be a discussion about the respective weighting of security and privacy, but heavily-redacted documents like these do not add to that discussion. How is the public supposed to weigh these two factors if it can't access the FBI's arguments in favor of Section 215's continued existence? The only purpose this document serves is to give legislative true believers something to wave around as they defend the Patriot Act's perpetual, unaltered renewal. Permalink | Comments | Email This Story

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Proving there's nowhere spy agencies won't go to achieve their aims, a new Snowden leak published jointly by The Intercept and Canada's CBC News shows the NSA, GCHQ and other Five Eyes allies looking for ways to insert themselves between Google's app store and end users' phones. The National Security Agency and its closest allies planned to hijack data links to Google and Samsung app stores to infect smartphones with spyware, a top-secret document reveals… The main purpose of the workshops was to find new ways to exploit smartphone technology for surveillance. The agencies used the Internet spying system XKEYSCORE to identify smartphone traffic flowing across Internet cables and then to track down smartphone connections to app marketplace servers operated by Samsung and Google. Branded "IRRITANT HORN" by the NSA's all-caps random-name-generator, the pilot program looked to perform man-in-the-middle attacks on app store downloads in order to attach malware/spyware payloads -- the same malicious implants detailed in an earlier Snowden leak. While the document doesn't go into too much detail about the pilot program's successes, it does highlight several vulnerabilities it uncovered in UC Browser, a popular Android internet browser used across much of Asia. Citizen Lab performed an extensive examination of the browser for CBC News, finding a wealth of exploitable data leaks. [PDF link for full Citizen Lab report] In addition to discovering that phone ID info, along with geolocation data and search queries, was being sent without encryption, the researchers also found that clearing the app cache failed to remove DNS information -- which could allow others to reconstruct internet activity. Citizen Lab has informed the makers of UC Browser of its many vulnerabilities, something the Five Eyes intelligence agencies obviously had no interest in doing. But IRRITANT HORN went beyond simply delivering malicious implants to unsuspecting users. The Five Eyes agencies also explored the idea of using compromised communication lines to deliver disinformation and counter-propaganda. [The agencies] were also keen to find ways to hijack them as a way of sending “selective misinformation to the targets’ handsets” as part of so-called “effects” operations that are used to spread propaganda or confuse adversaries. Moreover, the agencies wanted to gain access to companies’ app store servers so they could secretly use them for “harvesting” information about phone users. As is the case with each new leak, the involved agencies have either declined to comment or have offered the standard defensive talking points about "legal framework" and "oversight," but it's hard to believe any legal mandate or oversight directly OK'ed plans to hijack private companies' servers for the purpose of spreading malware and disinformation. And, as is the case with many other spy programs, IRRITANT HORN involves a lot of data unrelated to these agencies' directives being captured and sifted through in order to find suitable targets for backdoors and implants. Permalink | Comments | Email This Story

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If you've ever wanted to learn more about web development, 91% off of the Jam-Packed JavaScript Bundle is a hard deal to pass up. There are over 40 hours of content offered to help you master the basics of programming in JavaScript. The courses include information on jQuery, Angular, NodeJS, Bootstrap CSS and BackboneJS so that you can build your own interactive apps. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Something the FBI has long considered to be part of its wiretapping efforts has been rejected by the Second Circuit Court of Appeals. Much like many people believe a 30-second-or-less clip from a movie, TV show or song entitles them to claim fair use, the FBI believes that a two-minute or less phone conversation can be listened to in its entirety even if it has nothing to do with the investigation at hand. The U.S. Court of Appeals for the Second Circuit declined to adopt a rule that agents get a "two-minute presumption" on the reasonableness of wiretapping calls that are personal in nature. The circuit did so while dismissing a civil suit brought against FBI agents by a woman who claimed her privacy was violated when agents taped intimate phone calls between herself and her husband during a criminal investigation. The circuit said the woman, Arlene Villamia Drimal, will be allowed to file a new complaint against the agents. Drimal is the wife of convicted insider trader Craig Drimal. She sued 16 FBI agents for conversations they overheard in 2007 and 2008 while executing a wiretap secured under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, §§2510-2522. This doesn't necessarily "put to death" the two-minute window on personal calls FBI agents grant themselves, contrary to Drimal's lawyer's claims. The ruling is very specifically narrowed to cover only the FBI agents' actions in this case. The 16 agents listed in Drimal's lawsuit moved for dismissal, citing qualified immunity and pointing to a previous decision which allowed the FBI approximately two minutes to ascertain a call's purpose and relevance. They cited the Second Circuit case of United States v. Bynum, 485 F.2d 490 (2d Cir. 1973), where the court held a wiretap that monitored 2,058 in a large narcotics case did not violate Title III minimization requirement. The Bynum court excluded calls under two minutes from its evaluation of the wiretap because "in a case of such wide-ranging criminal activity as this, it would be too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversations as merely social or possibly tainted." The FBI has an indeterminate amount of time to discern the intent and content of wiretapped calls, with an obligation to disconnect as soon as it's surmised the phone call has no investigatory relevance. This still remains in force, even with this rejection of its "two minute" argument. Without a doubt, this allowance has been abused to listen in on phone calls of a personal nature, but its intent is to minimize privacy violations while still allowing agents to collect evidence. What distinguishes this case from others is that the FBI agents were caught not "minimizing" wiretapped calls in violation of the court order authorizing the wiretap. This abusive behavior was called out by the presiding judge. This case does not present the same circumstances as Bynum. Many of the violations here took place in the early stages of the wiretap when defendants were less familiar with the case and with Mrs. Drimal’s lack of involvement in it, but the agents should have realized reasonably early in the wiretap that these husband and wife conversations were not relevant to the investigation. As Judge Sullivan noted in Goffer, Mr. and Mrs. Drimal occasionally discussed “deeply personal and intimate” issues, 756 F. Supp. 2d at 594, and “in each of these calls it should have been apparent within seconds that the conversation was privileged and non‐pertinent,” id. at 595. As a result, the reasoning from Bynum that it would be too difficult to minimize calls under two minutes is not applicable here where agents could determine in seconds that the calls between husband and wife were entirely personal in nature. The two‐minute presumption we applied in Bynum thus does not automatically shield defendants against the failures to minimize calls under two minutes that the putative amended complaint is likely to allege. On one hand, the ruling undercuts the FBI's assumption that all calls under two minutes in length can be listened to in their entirety, no matter their relevance to ongoing investigations. On the other hand, the ruling cannot be applied broadly to other FBI wiretapping efforts. Civil suits brought over alleged privacy violations aren't going to be any easier to pursue as the "window" for FBI eavesdropping is still wide open, what with the Bynum ruling only applying to the specific facts of that case, rather than FBI wiretapping in general. Drimal's case was aided by a couple of unlikely incidents, one of which was two agents' open admissions that they had listened to privileged phone calls. The other factor weighing into this decision was the very specific instructions the agents received, not only from the court issuing the wiretap order, but also from the US State's Attorney. Without these two elements, the FBI would likely have been found to be acting lawfully within the confines of its wiretap policies and applicable court orders. Permalink | Comments | Email This Story

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Every so often there are lawsuits where we note that both parties have a long history of doing the sort of thing that gets them written about on Techdirt in less-than-positive ways. Here's another one of those situations. Voltage Pictures is a well known copyright trolling firm, which is its side business along with producing some highly acclaimed movies. Voltage has gone on quite a rampage trying to shake down people all around the globe. The company's boss, Nicolas Chartier, tends to take a rather black and white view of the situation. Back when he first started shaking people down, someone sent him a friendly email noting (accurately) that going the copyright trolling route might hurt Voltage's reputation. Rather than considering the message, Chartier turned around and called the helpful emailer a "moron" and a "thief." This is someone who has quite a strong view on what he believes is his "property." So it seems rather fascinating to hear that Toho is suing Voltage for copyright infringement, claiming that a new movie that it's producing, Colossal, infringes on its copyright on Godzilla. The movie was just announced last week, and the Hollywood Reporter described it this way: In the movie — described as Transformers versus Adaptation and Godzilla meets Being John Malkovich; Hathaway will play Gloria, an ordinary woman who, after losing her job and her fiancé, decides to leave her life in New York to move back to her hometown. But when news reports surface that a giant lizard is destroying the city of Tokyo, Gloria gradually comes to realize that she is strangely connected to these far-off events via the power of her mind. In order to prevent further destruction, Gloria needs to determine why her seemingly insignificant existence has such a colossal effect on the fate of the world. Right. So, you can see why Toho might be mad, but Toho also has a long and storied history of suing basically anyone they think might be doing anything even loosely connected to Godzilla. It once went after Comcast for having a godzilla-like monster in a marketing campaign and a small mobile app firm for creating a silly game called Fingerzilla. So... yeah. Two big firms with long histories of legal bullying/threatening/suing people that they feel are unfairly "stealing" their property, when both take a very ridiculous black and white view of what kind of "property" is being "stolen." Toho even makes note of Voltage's copyright troll history in the very opening of the lawsuit: Godzilla is one of the most iconic fictional characters in the history of motion pictures. Toho Co., Ltd., the copyright owner of the Godzilla character and franchise of films, brings this lawsuit because defendants are brazenly producing, advertising, and selling an unauthorized Godzilla film of their own. There is nothing subtle about defendants’ conduct. They are expressly informing the entertainment community that they are making a Godzilla film and are using the Godzilla trademark and images of Toho’s protected character to generate interest in and to obtain financing for their project. That anyone would engage in such blatant infringement of another’s intellectual property is wrong enough. That defendants, who are known for zealously protecting their own copyrights, would do so is outrageous in the extreme At the very least, Toho has a point that Voltage pictures is clearly making use of Godzilla in its description and promotion for the movie. From the lawsuit, here is the promotional email that Voltage itself sent out, which includes an image of Godzilla (Toho claims it's taken directly from a publicity photo of last year's Godzilla movie) and mentions Godzilla. Toho further notes that the email sent around "director's notes" for the project which include a bunch of historical images of different representations of Godzilla. The Director’s Notes also make clear that Defendants have not only taken the Godzilla Character as their own, but that they also intend to use the Godzilla Character in precisely the same way that Toho used the character in its initial film – attacking Tokyo. As stated therein, “[W]e need scenes with the monsters crushing Tokyo. . Not only that, but Toho notes that, last year, the director in question, Nacho Vigalondo, stated that he's absolutely planning to make a "cheap" Godzilla film: The script I finished and want to get financing for is a twist on the kaiju eiga genre, the Godzilla genre. It’s going to be the cheapest Godzilla movie ever, I promise. It’s going to be a serious Godzilla movie but I’ve got an idea that’s going to make it so cheap that you will feel betrayed. You’re going to be so frustrated by it, it’s not even possible. The way I wrote the movie – and I don’t want to explain too much – I found a way that is honest and logical to make Godzilla in a costume, destroying cities, models all the time. I wrote the movie in a way that the story has a twist so it makes sense to do Godzilla this way and I’m going to try to be the guy inside the costume because I love filmmaking to the core and I’m a film lover, one of dreams is not to direct a Godzilla movie but to be inside the costume and destroy the cities. I want to be the guy in the costume. When I first saw the headlines about this, I thought it might be another case of Toho stretching its claims of infringement, as it has done in the past -- and was prepared to argue that, even in all its copyright trolling insanity, that Voltage Pictures should have the right to make its own type of monster movie. In fact, we've defended Voltage against ridiculous legal attacks in the past. And, further, I think that it's ridiculous that courts have decided that using similar characters in totally different settings is copyright infringement, as it seems to go against the idea/expression dichotomy that is supposed to be a core tenet of copyright law. But, it's still kind of jarring just how blatant Voltage appears to be in just making use of Godzilla in the pitch for this movie without a license. And for a company whose boss argues that merely saying that his copyright trolling plan could be bad for business makes you a "thief," I think it's at least fair to argue that Nicolas Chartier is one hell of a hypocrite.Permalink | Comments | Email This Story

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The ACLU is suing the CIA over its withholding of CIA Torture Report-related documents, including the so-called Panetta Review. The CIA, so far, has managed to withhold the requested documents in their entirety, citing multiple FOIA exemptions. The ACLU isn't taking no for an answer and has challenged the CIA's refusal to turn over any of the documents the ACLU has requested. But this effort has now been shut down by the DC District Court. The decision starts by noting that if the SSCI report (Torture Report) had remained solely in the hands of the Senate, it would have been unobtainable via FOIA requests. The ACLU had argued that its transfer to the CIA has released it from this clearly delineated restriction. ("For purposes of FOIA, the definition of an “agency” specifically excludes Congress, legislative agencies, and other entities within the legislative branch.") The court finds otherwise: The Court’s inquiry, therefore, is a streamlined one: do there exist “sufficient indicia of congressional intent to control,” id., the Full SSCI Report? [...] Although this case is no slam dunk for the Government, the Court answers that question in the affirmative. The decision quotes from a SSCI letter from 2009 referring to the still in-the-works Torture Report. In its June 2009 letter to the CIA, SSCI expressly stated its intent that the documents it generated during its investigation “remain congressional records in their entirety and disposition,” such that “control over these records, even after the completion of the Committee’s review,” would “lie[] exclusively with the Committee.” June 2, 2009, SSCI Letter, ¶ 6. Making its wishes even more explicit, it continued, “As such, these records are not CIA records under the Freedom of Information Act, or any other law.” The ACLU pointed out that this letter from 2009 was both outdated and irrelevant to the issue at hand, as it only pertained to the use of documents shared with the Senate by the CIA, rather than the resulting report. The court disagrees, stating that the language in the 2009 letter is broad enough to cover the finished product, rather than just the documents contributing to it. But it also points out the CIA's arguments in defense of its secrecy are also inconsistent. One final point bears mention. Defendants’ own characterizations of the scope of the letter vary somewhat in their submissions. Compare, e.g., Higgins Decl., ¶ 12 (“One key principle necessary to this inter-branch accommodation . . . was that the materials created by SSCI personnel on [the] segregated shared drive would not become ‘agency records’ even if those documents were stored on a CIA computer system or at a CIA facility.”) (emphasis added), with Def. Reply at 5 (explaining that the language of the June 2009 letter “covers the Full Report” as a “final . . . report[] or other material[] generated by Committee staff or members,” even though it did not reside on the network drive). The ACLU also argued that Dianne Feinstein's letter from 2010 is a better indicator of whether or not the report and its supporting documents are FOIA-able. As its pièce de résistance, the ACLU seizes on the December 10, 2014, transmittal letter from Senator Feinstein, claiming it represents “direct evidence of the SSCI’s intentions for the Final Full Report.” Id. That letter, to recap, states: "[T]he full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure that this experience is never repeated. To help achieve this result, I hope you will encourage use of the full report in the future development of CIA training programs, as well as future guidelines and procedures for all Executive Branch employees, as you see fit." December 10, 2014, Feinstein Letter. “By encouraging the use and dissemination of the Final Full Report among the executive branch, and by leaving to the executive branch the decision as to how ‘broadly’ the report should be used within the agencies,” claims Plaintiff, “SSCI relinquished its control over the document.” The court rebuts this argument as well. Rejecting the ACLU's "refinement" of the entirety of SSCI-related communication between the Senate and the CIA to a single letter, the court declares that Feinstein's instructions must be considered in context. The Court, therefore, need not confine its consideration to the moment of transmission. On the contrary, SSCI’s 2009 letter sets the appropriate backdrop against which Senator Feinstein’s 2014 letter can be properly understood. So teed up, her letter does not evince congressional intent to surrender substantial control over the Full SSCI Report. While it does bestow a certain amount of discretion upon the agencies to determine how broadly to circulate the Report, such discretion is not boundless. Most significantly, the dissemination authorized by the letter is limited to the Executive Branch alone. It plainly does not purport to authorize the agencies to dispose of the Report as they wish – e.g., to the public at large. The court also adds that Feinstein's statement accompanying the public release of the report summary further declares the documents off-limits -- at least until further notice. SSCI’s deliberate decision not to publicly release the Full Report, combined with its assertion that it would consider that course of action in the future, serve to further undermine Plaintiff’s theory that Congress intended to relinquish control over the document only days later. It finds similarly for the "Panetta Report" documents, citing its rejection of Jason Leopold's FOIA request. The CIA continues to assert that these documents are "deliberative" in nature and out of the reach of FOIA requests, despite the fact that what's being deliberated has already been made public (in the summary report) and handed over to the executive and legislative branches (via the full report). The court upheld the CIA's exemption (b)5 declaration, stating that it doesn't matter whether or not portions of the sought documents are in the public domain, but rather that the documents are part of an agency's "deliberative process." (This is why exemption (b)5 is the most-abused FOIA exemption.) As it had already shot down Leopold's request, the court finds no reason to alter its course, despite some "novel" arguments advanced by the ACLU -- including quoting Sen. Udall's assertion that the Panetta Review is a complete work of critical importance (a "smoking gun") that far exceeds the CIA's portrayal of it as an unfinished pile of somewhat related deliberative works-in-progress. The CIA's motion to dismiss is granted. With this decision (and many preceding it), government agencies are being given even more reason to declare anything they don't want released "deliberative" and trust the courts to uphold their declarations. Permalink | Comments | Email This Story

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The battle raging over the fast track bill is essentially one about control: who gets the final say over so-called trade agreements like TPP and TAFTA/TTIP. If the US President is not given trade promotion authority, it is possible that Congress will demand changes to the negotiated text; with fast track, it will be a simple up or down vote. That's also the situation in other countries participating in the negotiations: once the text is agreed upon, they can essentially accept it or reject it. However, a group of senior politicians in five of the TPP nations point out that after those votes, the US can still demand further concessions from its partners thanks to a process known as certification: Senior parliamentarians from five countries negotiating the Trans-Pacific Partnership (TPP) agreement have signed an open letter urging their political leaders to protect their nations’ sovereignty from the United States' process of certification. Here's how that works: The US withholds the final steps that are necessary to bring a trade and investment treaty into force until the other party has changed its relevant domestic laws and regulations to meet US expectations of its obligations under the agreement. In the past, US 'expectations' have gone beyond what is in the actual text, and even included matters that were rejected in negotiations. US officials can define another country's obligations; become directly involved in drafting that country's relevant law and regulations; demand to review and approve proposed laws before they are presented to the other country's legislature; and delay certification until the US is satisfied the new laws meet its requirements. In other words, even though other nations might think that after their agreement and ratification of the text, everything is fixed, the US reserves the right to come back and demand changes to domestic laws and regulations so as to ensure that the implementation is as it wishes. That's no mere theoretical option: it has been used against both Peru and Australia recently. In the latter case, the US was unhappy with the legislation enacting the Australia-US free trade agreement (AUSFTA), and demanded that Australia bring in a supplementary law that actually went beyond the terms of AUSFTA. Even then, the US reserved its right to take legal action if it felt that Australia had still not gone far enough. The publication of the open letter (pdf) to the political leaders of the TPP nations is a timely reminder that however much sovereignty they might be willing to give up during the negotiations for the sake of supposed gains, the US may want even more concessions -- without, of course, granting other countries the same prerogative. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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A couple weeks ago, we wrote about faith healer Adam Miller's monumentally stupid and ridiculous SLAPP lawsuit against Stephanie Guttormson because she posted a video that was critical of a video Miller put together promoting his faith healing nonsense. We dissected how weak and laughable the lawsuit was -- and it's possible that Miller and his lawyer have now realized this, as they've dismissed the lawsuit, but without prejudice, meaning he could potentially file it again in the future. Given that (and the fact that Guttormson has raised a bunch of money in a crowdfunding campaign), I wonder if she'll now file for a declaratory judgment of non-infringement... Either way, Miller said he filed the lawsuit because he felt it was unfair that people were seeing this video that Guttormson put together: When he filed the original lawsuit, it noted that the video had been viewed approximately 1,500 times since it first was posted back in December of last year. So, 1,500 views in a bit over four months. In the two weeks since the lawsuit was filed, it's now up to about 50,000 views. Nice work, Adam. Separately, if you do a Google search on "adam miller healer" (as he likes to be known), it's full of stories about how he's suing Guttmorson and mocking his faith healing nonsense. One of these days people are going to understand the nature of the Streisand Effect, but apparently that day is not today.Permalink | Comments | Email This Story

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Maybe if you had a sizable fortune, you wouldn't want huge tracts of land to live on, but more than a few billionaires seem to like owning islands or a few hundred acres in remote locations. But you don't necessarily have to be rich to rule a tiny part of the world -- you just need to have the will to do it. Sorta. Mark Zuckerberg has spent over $100 million on various properties to secure his privacy IRL. He's not the only wealthy individual to buy up strategic plots of land to make sure his home (or homes) has a nice fortress around it. You don't necessarily need to be a billionaire to have a private spot all to yourself, but you can get a better ocean view if you are. [url] Renato Barros, aka Prince Renato II of the country Pontinha, created his own island country when he bought an island off the coast of Portugal for just 25,000 euros about 15 years ago. This country has only four citizens -- Renato, his wife and two kids. Pontinha is also one of only a handful of nations that generates all of its energy from renewable resources. [url] There are estimated to be over 400 micronations -- such as the Imperial Kingdom of Calsahara, the Conch Republic, and the Principality of Sealand -- that no one has ever heard of. Part of the reason no one has ever heard of these places is that many of them are not officially recognized as sovereign states. But if you're crazy enough to want to declare yourself a dictator of your own realm, you can. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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The EFF is asking the Oregon Supreme Court to take a look at a disturbing opinion issued by the state's appeals court -- one that could see employees face fines and prison time simply for violating company policies. The case prompting the filing of an amicus brief on behalf of the defendant does contain an element of criminality, but the court's decision should have been limited to the end result of the defendant's actions, rather than the actions taken to reach that point. Caryn Nascimento worked as a cashier at the deli counter of a convenience store. As part of her job, she was authorized to access a lottery terminal in the store to sell and validate lottery tickets for paying customers. Store policy prohibited employees from purchasing lottery tickets for themselves or validating their own lottery tickets while on duty. After a store manager noticed a discrepancy in the receipts from the lottery terminal, it was discovered that Nascimento had printed lottery tickets for herself without paying for them. She was ultimately convicted not only of first-degree theft, but also of computer crime on the ground that she accessed the lottery terminal “without authorization.” Nascimento appealed the computer crime conviction. She argued that because she had permission to access the lottery terminal as part of her work duties, she did not access the terminal without authorization—as required under the Oregon's computer crime statute. Unfortunately, the Oregon Court of Appeals affirmed Nascimento’s conviction, finding she had only “limited authorization” to access the lottery terminal for purposes of printing and validating lottery tickets for paying customers, and acted without authorization when she printed them for herself. At first glance, it almost seems like a reasonable application of the law simply because the end result was theft. But it's the specifics that make it troublesome. "Without authorization" is far too broad a term to be used in this context. With this reading of Oregon's law, the appeals court has basically criminalized a wide variety of corporate computer-related policy violations. Actions that would normally be met (in a corporate setting) with warnings and reprimands could now be viewed as criminal acts. [T]he Court of Appeals’ decision transforms millions of unsuspecting individuals into criminals on the basis of innocuous, everyday behavior—such as checking personal email or playing solitaire on a work computer. Such restrictions, frequently included in employers’ computer policies, are no different than the restriction imposed on Nascimento. They're ultimately all computer use, not access, restrictions. Upholding Nascimento’s conviction on the basis of a violation of a computer use restriction expands Oregon’s computer crime statute to criminalize violations of any computer use restriction. The broad reading of Oregon's criminal statute also poses potential problems outside of the work environment. The court’s holding that a person acts “without authorization” if she violates a policy regarding the use of a computer that she is otherwise authorized to access could be extended to an Internet user who accesses a website in violation of a written terms of service. For example, Facebook’s terms of use provide that “[y]ou will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission.” But as the Ninth Circuit noted en banc, “[l]ying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight.” Under the Court of Appeals’ expansive reading of ORS 164.377, if a user shaves a few years off her age in her profile information, asserts that she is single when she is in fact married, or seeks to obfuscate her current physical location, hometown or educational history for any number of legitimate reasons, she violates the computer crime law. The court’s decision thus opens the door to turning millions of individual Internet users—not just millions of individual employees—into criminals for typical and routine Internet activity. The EFF points out that rolling back this "unconstitutionally vague" reading of Oregon's computer crime law doesn't leave the state without options to punish Nascimento for her actions. She still faces one count of aggravated first-degree theft -- a charge the EFF is not disputing. Pointing to previous decisions by the Fourth and Ninth Circuit courts, the EFF states that similarly broad readings of the rightfully-maligned CFAA (Computer Fraud and Abuse Act) have been rejected for potentially criminalizing violations of workplace computer use policies. The Supreme Court should have no problem rolling back this broad reading and the attendant charge brought against Nascimento. The theft may have been facilitated by improper access that violated company policy, but this access doesn't rise to the level of a criminal act -- even if it ultimately resulted in a criminal action. Permalink | Comments | Email This Story

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Paul Hansmeier, having learned all he needs to know about practicing law from his years in the trolling trenches as part of Prenda Law, is now shaking down businesses using ADA (Americans with Disabilities Act) lawsuits. This new (but not really) approach is slightly more palatable to the general public than attempting to fish a few bucks from randy torrenters via infringement lawsuits, but not by much. Those on the receiving end of these shakedown efforts don't see much difference between Hansmeier's new approach and the actions that netted him and Prenda Law sanctions from multiple courts. Hansmeier still seems enthralled with the possibility of easy money, even if his experience with Prenda Law didn't exactly pan out the way its principals hoped. Most are still in the process of extracting themselves from the flaming wreckage of Prenda, but they're limping away, rather than strutting. Some may even face jail time for contempt. Hansmeier and his non-profit (Disability Support Alliance) -- which exists nowhere but the Minnesota business registry and as a nominal plaintiff in his 50+ ADA lawsuits -- are running into roadblocks on Easy Buck Ave. One of the businesses he recently sued addressed his allegations by filing a $50,000 counterclaim for abuse of process and civil conspiracy. Now, there's more trouble on the way. Cal Brink was tired of the lawsuits that just kept coming. Since the first suit claiming lack of disability access was filed more than a year ago, businesses in this southwest Minnesota town of nearly 14,000 people have been worried that they, too, would be hit. Nine lawsuits have been filed here so far by the Disability Support Alliance, a nonprofit group formed last summer, including one against the only bowling alley in town. The owner said he will soon close rather than pay the DSA’s $5,500 settlement offer or make the $20,000 of changes needed to comply with the Americans with ­Disabilities Act. “Nobody fights them, because it’s going to cost you more to fight,” said Brink, executive director of the local Chamber of Commerce. Now Marshall is fighting back. Working in concert with the Minnesota State Council on Disability, Brink developed an access audit for local businesses, allowing them to develop a plan to fix ADA issues and potentially to ward off litigation. The plan has won the attention of the state Department of Human Rights, which hopes it could be used in other communities hit by serial litigation. Since the putative goal is to improve access for the disabled, you'd think something called the "Disability Support Alliance" would be behind it. But the DSA isn't about improving access. It's about making money. Eric Wong, a member of the four-person-strong DSA says companies just need to pay it first and worry about complying with the law later. His group “is currently in the process of producing a voluntary mass settlement agreement for those businesses in Marshall that are ready to confess to their crime, fully comply … and pay the damages/restitution that they are liable for under the law,” Wong said in an e-mail. “The lawsuits will stop when there is no more access crime to prosecute,” he said. Many businesses “fail to understand that … we are now a zero tolerance state.” Roughly translated: the trolling will continue until it's run off the rails by the public or the courts. The lawsuits have already caught the eye of Hennepin County's chief judge, which noted that the flurry of filings "raised the specter of serial litigation" and has ordered all DSA/Hansmeier's lawsuits filed in this county be handled by one judge. This will probably prompt Hansmeier to take his "business" elsewhere, rather than deal with extra scrutiny from a judge who won't have to connect the dots between multiple filings in multiple venues. With any luck, Hansmeier's efforts elsewhere will be greeted with the same local resistance and judicial distrust. Permalink | Comments | Email This Story

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There were, of course, many whistleblowers before Edward Snowden. But it is undeniable that his sudden appearance across the world's news outlets two years ago has ignited a debate about the role, rights and responsibilities of whistleblowers. One manifestation of this new interest is the creation of the Courage Foundation, dedicated to helping them: The Courage Foundation is an international organisation that supports those who risk life or liberty to make significant contributions to the historical record. We fundraise for the legal and public defence of specific individuals who fit these criteria and are subject to serious prosecution or persecution. We also campaign for the protection of truthtellers and the public's right to know generally. Currently the Courage Foundation is supporting two whistleblowers: Edward Snowden and Jeremy Hammond. So news that it has set up an emergency fund to help a new, and hitherto unknown, whistleblower, is significant. Here's the background: Able Seaman William McNeilly is a 25-year-old British Engineering Technician Weapons Engineer Submariner who has blown the whistle on major safety risks and cover-ups within the British Royal Navy's Trident nuclear weapons programme, stating, "We are so close to a nuclear disaster it is shocking, and yet everybody is accepting the risk to the public." Here are some of his claims: Among the most startling of McNeilly’s revelations include the fact that three missile launch tests failed, missile safety alarms were ignored, torpedo compartments were flooded and bags were not properly checked for security risks. He also claims that [UK nuclear submarine] HMS Vanguard crashed into a French submarine in February 2009. McNeilly says there was a "massive cover up of the incident. For the first time the no personal electronic devices with a camera rule was enforced." At the time, the Guardian reported that "the Ministry of Defence initially refused to confirm the incident" and that Vanguard suffered mere "scrapes", but McNeilly says one officer told him, "We thought, this is it -- we’re all going to die." You can read the long and detailed document written by McNeilly on a dedicated Wikileaks page. It includes a comment attributed to him that may sound familiar: "Please make sure this information is released. I don't want to be in prison without anyone knowing the truth." That's pretty much what Snowden said when he went public. Although there's no evidence that McNeilly was inspired by Snowden, it would have been hard for him to avoid the huge publicity around the leaks over the last two years. It would be interesting to know whether that played any part in his decision to publish his statement. Unfortunately, unlike Snowden still ensconced in his Russian exile, it looks almost certain that McNeilly will indeed be going to prison: A Royal Navy spokeswoman said: “We can confirm that AB McNeilly was apprehended last night and is now in the custody of the Royal Navy police at a military establishment in Scotland where he is being afforded the duty of care that we give to all of our people. The spokesperson went on to say: “The Royal Navy disagrees with McNeilly’s subjective and unsubstantiated personal views but we take the operation of our submarines and the safety of our personnel extremely seriously and so continue to fully investigate the circumstances of this issue.” As that makes clear, the UK authorities are trying to play down McNeilly's serious allegations as "subjective and unsubstantiated personal views" in the hope that public interest in the story will wane. But his decision to publish the claims and accept the consequences -- like Snowden -- looks as if it will bring about some scrutiny, not least because UK politicians have taken up his cause alongside the Courage Foundation, which is helping him with his defense costs. That's key, since it may encourage yet more whistleblowers to come forward hoping to achieve the same result. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Last fall, we wrote about a troubling decision in a district court that ruled that the NAACP could use trademark law to censor a vocal critic who had written a mocking online article calling the NAACP the "National Association for the Abortion of Colored People" as part of an anti-abortion campaign. The NAACP sent the organization that posted the story, the Radiance Foundation (and the author/owner of Radiance, Ryan Bomberger), a legal threat letter. In response, Radiance filed for declaratory judgment that it did not infringe on the NAACP's trademarks, and the NAACP countersued arguing trademark infringement. The lower court sided with the NAACP, and barred Bomberger/Radiance from using the fake NAACP name to mock the group. No matter how you feel about the NAACP or abortion, the idea that it would use trademark law to silence a critic is highly questionable. Remember, the purpose of trademark law is to protect consumers from confusion in commercial settings. But, as with copyright, many seek to use it as a crude censorship tool -- and here, it worked. At first. Thankfully, the Fourth Circuit has overturned that ruling noting the total lack of actual trademark infringing, and hinting at (though leaving aside) the serious First Amendment concerns. The court here notes that to interpret trademark law the way the NAACP requests would lead to plenty of suppressed speech that has nothing to do with the true purpose of trademark law: The NAACP urges us to give this requirement a “broad construction,” Appellee’s Br. at 18, but that construction would expose to liability a wide array of noncommercial expressive and charitable activities. Such an interpretation would push the Lanham Act close against a First Amendment wall, which is incompatible with the statute’s purpose and stretches the text beyond its breaking point. We decline to reach so far. From there, the court rightly worries about what would happen if it accepted the NAACP's interpretation of trademark law: The danger of allowing the “in connection with” element to suck in speech on political and social issues through some strained or tangential association with a commercial or transactional activity should thus be evident. Courts have uniformly understood that imposing liability under the Lanham Act for such speech is rife with the First Amendment problems. The court then details where the lower court went wrong. The lower court claimed that because Radiance sought donations in its sidebar, that made the article "use in commerce." But the appeals court points out that this is ridiculous and would "neuter the First Amendment." That ruling, however, neuters the First Amendment.... Suffice it to say that the specific use of the marks at issue here was too attenuated from the donation solicitation and the billboard campaign to support Lanham Act liability. Although present on the article page, the Donate button was off to the side and did not itself use the NAACP’s marks in any way. The billboard campaign was displayed on a different page altogether. A visitor likely would not perceive the use of the NAACP’s marks in the article as being in connection with those transactional components of the website. It is important not to lose perspective. The article was just one piece of each Radiance website’s content, which was comprised of articles, videos, and multimedia advocacy materials. That the protected marks appear somewhere in the content of a website that includes transactional components is not alone enough to satisfy the “in connection with” element. To say it was would come too close to an absolute rule that any social issues commentary with any transactional component in the neighborhood enhanced the commentator’s risk of Lanham Act liability. And thus, the court notes that merely writing an article that mocks the NAACP is not really "use in commerce" for the sake of trademark law. From there, the court also takes on the "likelihood of confusion" question, and finds no such likelihood exists. And, again, the court notes (correctly) that getting this test wrong could have First Amendment implications: Indeed, criticism or parody of a mark holder would be difficult indeed without using the mark.... Trademark protections exist neither to allow companies to protect themselves from criticism nor to permit them to “control language.” .... Even some amount of “actual confusion” must still be weighed against the interest in a less fettered marketplace of social issues speech. And, in this case, the lower court was itself quite confused... over the basics of trademark law. First, it notes, it doesn't matter if Radiance's usage confused people into thinking that the NAACP supported abortion -- as that's not what trademark law is about: Likewise, trademark infringement is not designed to protect mark holders from consumer confusion about their positions on political or social issues. The evidence of “actual confusion” relied on by the district court consisted of phone calls to the NAACP by people who took issue with the NAACP supporting abortion. Radiance Found.... “[I]ndignation is not confusion,” ... at least not as pertains to trademark infringement, and at best the calls demonstrated confusion as to the NAACP’s policy positions rather than any good or service. Policy stances are neither goods nor services, though the means of conveying them may be. And from there we get to the key point. If the NAACP's position here were accepted, it would create serious problems that would come back around to likely haunt the NAACP itself: Political discourse is the grist of the mill in the marketplace of ideas. It may be that the only -- but also the best -- remedy available to a trademark holder is to engage in responsive speech. For even where a speaker lies, “more accurate information will normally counteract the lie.”... The NAACP is a renowned civil rights organization with numerous mechanisms for connecting with its membership and the public. Organizations of its size and stature possess megaphones all their own. “Actual confusion” as to a nonprofit’s mission, tenets, and beliefs is commonplace, but that does not transform the Lanham Act into an instrument for chilling or silencing the speech of those who disagree with or misunderstand a mark holder’s positions or views. On top of that, the court is perplexed as to how the lower court could possibly find a likelihood of confusion as to the source of the mocking article, considering that it was clearly mocking the NAACP, rather than coming from it: It is not immediately apparent how someone would confuse an article which is strongly critical of an organization with the organization itself. The mark in this case was used primarily to identify the NAACP as the object of Radiance’s criticism, resembling a descriptive or nominative fair use albeit by employing a modified version of the name. Admittedly, the attention span on the Internet may not be long, but the briefest familiarity with the article would quickly create the impression the author was no friend of the NAACP. Indeed, in just the first two lines, the piece refers to the NAACP as an “out-of-touch liberal organization” and accuses its Image Awards of honoring “black imagery churned out by often racist, anti-Christian, perpetually sexist, violent and pornographic Hollywood.” In short, being mean doesn't mean a likelihood of confusion: Intemperate and worse as the commentary is, holding it actionable risks creating the paradox that criticism equals confusion, thereby permitting companies to shield themselves from adverse assessments. It's disappointing that an organization that so relies on free speech decided to attack it in this case. While the court avoids having to take a First Amendment position, it's clear that the First Amendment is lingering behind the entire ruling: Trademark law in general and dilution in particular are not proper vehicles for combatting speech with which one does not agree. Trademarks do not give their holders under the rubric of dilution the rights to stymie criticism. Criticism of large and powerful entities in particular is vital to the democratic function. Under appellee’s view, many social commentators and websites would find themselves victims of litigation aimed at silencing or altering their message, because, as noted, “it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference or any other such purpose without using the mark.” ...The article in this case was harsh. But that did not forfeit its author’s First Amendment liberties. The most scathing speech and the most disputable commentary are also the ones most likely to draw their intended targets’ ire and thereby attract Lanham Act litigation. It is for this reason that law does not leave such speech without protection. It's only unfortunate that the case even had to go this far, and that the district court got it so wrong the first time around.Permalink | Comments | Email This Story

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