posted about 4 hours ago on techdirt
The BBC News site has one of those heart-warming stories that crop up periodically, about how clever new technology averted a potentially dangerous situation. In this case, it describes how a group of people lost in a forest in England were located by rescue services. The happy ending was thanks to the use of the What3words (W3W) app they managed to download following a suggestion from the police when they phoned for help. W3W's creators have divided the world up into 57 trillion virtual squares, each measuring 3m by 3m (10ft by 10ft), and then assigned each of those squares a unique "address" formed by three randomly-assigned words, such as "mile.crazy.shade". The idea is that it's easier to communicate three words generated by the What3words app from your position, than to read out your exact GPS longitude and latitude as a string of numbers. It's certainly a clever approach, but there are number of problems, many of which were discussed in a fascinating post by Terence Eden from earlier this year. The most serious one is that the system is not open: The algorithm used to generate the words is proprietary. You are not allowed to see it. You cannot find out your location without asking W3W for permission. If you want permission, you have to agree to some pretty long terms and conditions. And understand their privacy policy. Oh, and an API agreement. And then make sure you don't infringe their patents. You cannot store locations. You have to let them analyse the locations you look up. Want to use more than 10,000 addresses? Contact them for prices! It is the antithesis of open. Another issue is the fact that the physical locations of addresses are changing in some parts of the world: Perhaps you think this is an edge case? It isn't. Australia is drifting so fast that GPS can't keep up. How does W3W deal with this? Their grid is static, so any tectonic activity means your W3W changes. Each language has its own list of words, and there's no simple way to convert between them for a given location. Moreover, there is no continuity in the naming between adjacent squares, so you can't work out what nearby W3W addresses are. Fortunately, there are some open alternatives to W3W, many of them listed on a page put together by the well-known OpenStreetMap (OSM) group. OSM also points out the main danger if W3W is widely used -- Mongolia has already adopted it as an official addressing system for the country: What3words is fairly simple from a software point of view, and is really more about attempting establish a standard for location look-ups. It will only succeed through the network effect of persuading many people to adopt and share locations. If it does succeed, then it also succeeds in "locking in" users into the system which they have exclusive monopoly over. Given that problem, it seems questionable that, according to the BBC story, the UK police are urging "everyone to download a smartphone app they say has already saved several lives". Since when has it been the police's job to do the marketing for companies? Moreover, in many emergencies W3W may not be needed. Eden mentions a situation described given by a W3W press release: Person dials the emergency services Person doesn't know their location Emergency services sends the person a link Person clicks on link, opens web page Web page geolocates user and displays their W3W location Person reads out their W3W phrase to the emergency services Here's the thing... If the person's phone has a data connection -- the web page can just send the geolocation directly back to the emergency services! No need to get a human to read it out, then another human to listen and type it in to a different system. There is literally no need for W3W in this scenario. If you have a data connection, you can send your precise location without an intermediary. That seems to have been the case for the people who were lost in the forest: since they were able to download the W3W app, as suggested by the police, a Web page could have sent their geolocation to the emergency services directly. Maybe that boring technical detail is something the BBC should have mentioned in its story, along with all the heart-warming stuff. Follow me @glynmoody on Twitter, Diaspora, or Mastodon. Permalink | Comments | Email This Story

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posted about 8 hours ago on techdirt
Nearly a decade ago, we wrote a bunch about an excellent book called Copyfraud, by law professor Jason Mazzone, which went into great detail about how the legacy entertainment industry companies have used copyright in ways that are clearly against copyright's intent -- to the point that they border on fraud. The concept of copyfraud should be referred to more frequently, and here's a perfect example. Just a couple months ago, we wrote about the amazing social media account of Jimmy O'Brien, who goes by @Jomboy_ on Twitter. He's combined his love of baseball, his video editing skills, his ability to read lips incredibly well, and with a sarcastic, dry sense of humor to make a ton of amazing videos about various things happening in baseball. We highlighted a bunch last time around and his profile has only grown a lot since then, including among Major League Baseball players. About a month after that post, Jomboy may have had his biggest moment so far, in putting together a truly amazing video of NY Yankees manager Aaron Boone getting ejected -- following a bunch of players and Boone arguing with a young umpire over some bad calls. What took the video from normal great to amazing was that it revealed exactly what Boone was saying to the ump during their argument thanks to a bunch of "hot mics" from the broadcast. That allowed us to learn a lot more about this argument than anyone normally does in watching a manager scream at an ump: Here is the full sequence of the Boone ejection. Hot mics galore. pic.twitter.com/R6Vw0qw0qn — Jomboy (@Jomboy_) July 18, 2019 That video alone went crazy viral and launched an even more viral meme in the phrase "fucking savages," that is now on tons of t-shirts. Yankee fans have embraced it. The players have embraced it. By any stretch of the imagination, this was actually great for the game of baseball. So, of course, Major League Baseball wants to kill it. Because that's what MLB does. MLB's head of discipline (and a former Yankee manager himself), Joe Torre is apparently really really upset about these hot mic videos that have gotten fans so excited about the game. Because how dare fans learn about the personalities of the people in the game. The preponderance of that information has become more common lately, as microphones have picked up what’s said on the field, leaving little to the imagination. Torre will take the information, but he’d rather it wasn’t available to anyone with a Twitter account. “That’s not the way I want to hear it, for everybody else to hear it,’’ Torre said Tuesday at Yankee Stadium. “I wish I could hear it, only. It makes it easy to make my decision.” Apparently, Torre met with Boone to "discuss" the hot mic "issue" (there is no issue), leading one of the Yankees' beat reporters, Bryan Hoch, to point out that this meeting was really happening because someone like Jomboy made a video: Joe Torre and Aaron Boone had a meeting yesterday during which they discussed the viral "hot mic" videos. It's a @Jomboy_ world and we're all living in it. — Bryan Hoch (@BryanHoch) August 14, 2019 So, first of all, this is incredibly dumb on MLB and Torre's part. Torre, of course, has famously had his own hot mic moments during ejections as well. But it gets dumber, and it involves out and out copyfraud. In response to Hoch's comment, a Twitter user joked that MLB doesn't want Jomboy "profiting off their backs." To which Jomboy noted that MLB "claims" all of his videos on YouTube, so when he has videos that get millions of views (as many of his do), it's MLB collecting the revenue. They claim near every video on YouTube, trust me, they are making WAY more money off me than I’m making off me — Jomboy (@Jomboy_) August 14, 2019 Someone rightly points out that "it seems way beyond fair use" and Jomboy notes that he tried that once, but YouTube rejected it: That’s what I’ve heard over and over. I tried to dispute one before but lost. — Jomboy (@Jomboy_) August 14, 2019 This all seems ridiculous for a whole variety of reasons. First off, this does appear to be quintessential fair use. It's a (tiny) portion of the video. It's done for reporting purposes, it's arguably transformative (the videos show a very different side of the game), and it seems to only increase the potential market for baseball, not decrease it. But, because of the system YouTube has set up here, MLB gets the money. No one is watching these videos as a replacement for MLB content. They're watching it to get Jomboy's insight, humor, lip reading skills and such. And yet, MLB is getting the money. That's blatant copyfraud. I'm sure O'Brien has little interest in antagonizing MLB (which should be celebrating him rather than worrying about his videos), so he probably has no interest in fighting this with a lawyer. But, again, that demonstrates MLB's abuse of power here. It knows that it can take the money from Jomboy's work and he can't push back very hard or he'll run into other problems with MLB. Either way, I'm wondering about all those folks who show up in our comments saying stuff about how strong copyright is necessary to "protect creators" feel about this situation? Here a creator is getting robbed of revenue he should legitimately have earned, because YouTube is handing it to a giant corporation instead. Permalink | Comments | Email This Story

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posted about 10 hours ago on techdirt
Oh come on. Earlier this week we wrote about both Twitter and Facebook shutting down a bunch of Chinese accounts that both companies claimed were state-backed accounts pushing propaganda/misinformation/attacks against Hong Kong protesters. Separately, Twitter also changed its policies to no longer accept advertising from state-backed media operations. The Chinese government -- the very same government famous for aggressively censoring the entire internet -- apparently is not happy about it, arguing that it's a violation of free speech rights. Really. A Foreign Ministry spokesman dismissed the allegations, made by the companies a day earlier, that the government had done something wrong in using online resources to portray the protests roiling Hong Kong as the work of “cockroaches” spurred to action by shadowy Western forces. Rather, ministry spokesman Geng Shuang said, the accounts were not the work of alleged government disinformation teams but Chinese students and others living overseas who “of course have the right to express their point of view.” First of all, even assuming that they are Chinese students living abroad (already a dubious claim), they may have a right to express their point of view, but they don't have a right to force Twitter and Facebook to host it. And, China knows this, considering that it currently bans both Twitter and Facebook in their country. So if it really believes that Chinese citizens deserve a right to express themselves on that platform, it might want to fix something back home first. Permalink | Comments | Email This Story

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posted about 12 hours ago on techdirt
In a small county in Oregon, free speech -- specifically the act of journalism -- is being threatened. The Malheur Enterprise, a weekly newspaper, has been investigating a state lawmaker's ties to business deals and contracts being executed in the county. Doing what journalists do, the paper's reporters have been trying to get answers or statements from people working with State Rep. Greg Smith, whose business dealings are currently under the small paper's microscope. No one seems to want to talk to the paper, but good journalists are persistent and willing to talk to anyone who might give them a new lead or verify findings. This is how journalism works. Rep. Greg Smith thinks journalism is a criminal act. The newspaper broke the news Monday morning after learning that Malheur County’s legal counsel had asked the sheriff to investigate whether reporters’ persistent attempts to contact officials, sometimes after business hours or using their personal email accounts, amounted to a violation of the law. State Rep. Greg Smith, the Republican lawmaker at the center of the journalists’ investigation and who also serves as director of Malheur County Economic Development on a contract basis, complained to the newspaper: “It is not appropriate that you are sending emails to employees using their personal email accounts on the weekends,” and asked “to not have our employees contacted outside of their work place,” the paper reported. Smith has taken his "evidence" to local law enforcement. Apparently, Smith believes email from journalists to people's personal email addresses ("at all times!") is a form of harassment. The state statute is written broadly enough that someone -- say, State Rep. Greg Smith -- might feel like they've got an open-and-shut case. The state's harassment law says a crime is committed if anyone "intentionally harasses or annoys another person" via lines of communication (phones, email addresses) they've been "forbidden" to use. That explains Smith's statement to the newspaper. He did the forbidding. Now he's just cashing in his criminal charge chips. The next step is to get law enforcement on board. Achievement unlocked. After initial publication of this report online, Rich Harriman, a commander in the sheriff’s office, posted a personal Facebook comment justifying action by police. “Asking to explore if criminal activity is afoot is NOT suppressing the press,” Harriman wrote. “If they did something wrong, it keeps them from crossing that line again. Seems like this paper and its groupies might be desperate for a sexy story.” So much for objectivity. The message has been sent: these government employees -- one a law enforcement official -- want nosy journalists to mind their own business. Any official can claim a phone line is off limits to get the ball rolling on bogus, First Amendment-damaging charges. The problem with Rep. Smith doing it is he already gave constituents permission to call him anytime. Smith uses two emails in his conduct of county business. At a government meeting last fall, he gave the public what he described as his “personal” cell phone number He told the audience: “At any time that anyone has any questions or concerns, please call me directly.” He said he was available “24/7.” He has listed that number on press releases from Malheur County and in his role as a state legislator. I guess this line is only open to non-journalists. The Malheur Enterprise has plenty of "questions and concerns." Rep. Smith has no desire to address them. The best way to shut people up is to threaten their freedom. Fortunately, Smith doesn't have the support of everyone in the Sheriff's office. This bullshit investigation appears to have reached the end of the line. Malheur County Sheriff Brian Wolfe said Wednesday an inquiry determined no laws had been broken. “As an elected sheriff, we will always respect the constitutional rights of anybody and everybody. We do believe in freedom of the press and free speech that we believe are our rights given by the Constitution of the United States,” Wolfe said. Sheriff Wolfe might want to have a word with Commander Harriman and remind him he speaks for the office when he pipes up on Facebook with ill-advised comments that display his ignorance of the First Amendment and its protections. If Rep. Smith doesn't like being dogged by journalists, he's in the wrong business. Being a public servant -- even part-time -- means being annoyed by the public, journalists included, on a regular basis. Hopefully, his career as a public servant is just about over. Going after the press with criminal charges is about the worst move a politician can make. Permalink | Comments | Email This Story

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posted about 13 hours ago on techdirt
John Perry Barlow is all too frequently held up as the patron saint of a sort of "techno-utopian" internet, in which the internet will save us all and open up all sorts of wonderment and good feels -- and all the bad stuff is whisked away on a rainbow cloud of TCP/IP. Critics of Barlow sometimes delight in mocking his flowery language or predictions that didn't come quite true (though many did). They especially delight in pointing to the current internet hellscape as proof that Barlow's vision of the internet-for-good was a vision through impossibly rose-colored glasses. As I noted upon his passing, this is a near total misunderstanding of Barlow, who saw both the promise and the peril of the internet, and his writings were designed as a call to action for those developing the future (i.e., all of us), to embrace the good and avoid the bad. His presentments were an attempt to urge us all in the right direction, not a suggestion that that direction was inevitable, or easy, or guaranteed. That framing is useful context for reading through an amazing collection of essays and reflections on Barlow put together by Duke's Law & Technology review, in what it has entitled The Past and Future of The Internet: A Symposium for John Perry Barlow. Edited by Jamie Boyle, with some amazing contributions from folks like Cindy Cohn, Cory Doctorow, Yochai Benkler, Pam Samuelson, Jessica Litman, Jonathan Zittrain and more, it's absolutely worth reading, no matter where you stand on Barlow and his legacy. It is not -- as you might think -- a hagiography designed solely to praise Barlow. Indeed, it contains quite a few essays that are critical of Barlow -- arguing that he was over-optimistic, that he didn't recognize the downsides of the internet, and that he was misguided in his views of how the internet and (especially) copyright law might change over time. There is much in this collection of essays that are thought-provoking and challenging (just as Barlow himself often was). Boyle's own contribution, which I'd argue is incorrectly titled Is The Internet Over?! (Again?), might be seen as a summation of all the papers in the rest of the collection, but I actually think it's much more important than that. Towards the beginning of his piece, Boyle laments the fact that so many of his law students don't actually understand how the internet works. And, that's a much bigger problem than you might think: I teach at a law school that has world-class faculty and brilliant students. Their breadth of learning humbles me on a daily basis. But many of them do not understand the network architecture that is so central to their lives. Of course, it is not their specialty. Yet they understand the basic explanation of anthropogenic climate-change, the idea of externalities in economics, the broad strokes of the history of civil rights in the United States, the debate about whether minimum wages are good for poor workers and the issues raised by the use of drones in armed conflict. They fluently invoke the concept of noir cinema and make jokes about magical realist fiction when a faculty meeting turns bizarre. They are, in short, profoundly well-rounded, educated people, knowledgeable beyond their own specialties. But they do not really understand the internet or the world wide web. That is a shame. It is a shame because understanding the most important communications network of our time, the network for our culture and news and search and flirting and shopping and politics, is central to knowing how—or whether—to regulate it. To build on it. To use it. As I will try to explain, some of the features of the internet that its critics view as its main problems—anonymity, the fact that anyone can connect to the internet and say anything, the difficulty of filtering it or managing it, its decentralized anarchic governance—are also among its transformative and engaging features. It is a shame for us not to understand all this because the network that shapes our cognitive world, defines our markets, and runs our infrastructure is as important as the rest of the things a “well-rounded person” knows about. But it is also a shame because Berners-Lee’s idea was beautiful. It was an idea that a scholar would come up with and that a scholar would love. Now it is central to our world. Yet somehow it progressed from bizarre novelty to essential utility without ever passing through the intermediate stage of public comprehension. And while he's actually talking about the work of Tim Berners-Lee here, rather than Barlow, I think much of the same applies to Barlow and his vision of the world, and why so many are perplexed by it or misinterpret it. In the same sense that so many people see only the "techno-utopian" appeals of Barlow, they see only the downsides, negatives, and costs of today's internet. What they miss is that these two things are, in many ways, connected at the hip. What enables all this good stuff is also what enables the bad. What enables boundless creativity and optimism and innovations... also enables surveillance, centralized dominant platforms, trolls and more. Barlow wasn't ever saying that we'd get one without the other. He was saying that we need to truly understand the upside to better protect against the downside -- and his (reasonable) fear was that in trying to fight back against the very real downsides, people, who did not understand the overall system and how it worked together, would very much destroy the good of the internet in a short-sighted focus on the bad. That risk remains more true today than ever before. Indeed, to those who say that Barlow was just a purely techno-utopian dreamer, Doctorow's piece has the perfect antidote: When Barlow advocated for a free internet––“free” in all the usefully overlapping and ambiguous senses of that word––he wasn’t doing so because he lacked an appreciation of the risks of a monopolized internet, or an internet that was under the thumb of a repressive state. Rather, he did so precisely because he feared that a globe-spanning network of ubiquitous, sensor-studded, actuating devices that were designed and governed without some kind of ethical commitment, without the pioneering spirit of the early internet and its yeoman smallholders who defended it from those who sought to dominate or pervert it, that we would arrive at a dystopian future where the entertainment industry’s Huxelyism was the means for realizing the nightmares of Orwell. You don’t found an organization like the Electronic Frontier Foundation because you are sanguine about the future of the internet: you do so because your hope for an amazing, open future is haunted by terror of a network suborned for the purposes of spying and control. But there's a flip side to all of this, some of which comes out in the essays -- though I wish there were more. Barlow's hope is very much out of favor today, even if many of his claims about the good of the internet did, in fact, come true. Along with it came much of the bad, and the prevailing narrative today seems to dismiss all of the good and focus solely on the bad. The days of merely concerning ourselves with the fights over copyright online have mostly fallen by the wayside, with so much focus now on things like terrorist content, mis- and disinformation, human trafficking, illegal drug abuse, trolls, hate speech, and more. But the key point is still there. The key, underlying truth behind what Barlow meant to the internet remains. Yes, the open and free internet has enabled all of this. But it has enabled so much more that is good and useful and innovative and powerful. And we should not forget that. Indeed, forgetting it, and focusing solely on the bad stuff is a recipe for destruction of that which is good on the internet. It is exactly what Barlow feared most. Those of us who fight to keep the internet open and free don't do it because we're ignoring or downplaying the bad things that have occurred and do exist on the internet. We're not blind to the power that a few large companies have taken in shaping the current internet. But we're fearful of how misguided attempts to stop the bad are almost always being done without an understanding of the flipside. As Boyle notes in his essay, it's that lack of understanding and recognition that, yes, anonymity can lead to trolling, but it can also lead to amazing communities where the oppressed and isolated can connect with others and work for a better world. Yes, the fact that the internet is open can lead to greedy surveillance or companies trying to observe our every move -- but it also enables anyone to create something amazing, whether for fun or for profit, and has created tons of new jobs, new products, new services, and just plain fun. Yes, governments can use the internet for oppression and surveillance, but people can use it to organize and make change as well. The point Barlow was pushing for was that we need to understand the good opportunities to know how to stop the overreaction in the other direction. Yes, it's important to think about ways to limit all of the bad stuff described above, but we need to do it in ways that enhance the good, not kill it off. We should encourage privacy through encryption, not deputizing large companies to "protect" us. We should encourage competition through making it easier for new internet services to come about, not through locking in the dominance of Facebook and Google as "utilities." We should encourage good behavior online by allowing for widespread experimentation in models to figure out what works for each community, rather than mandating a strict course of action that all platforms must follow. John Perry Barlow saw the good and the bad of the internet, and recognized, inherently, that they were tied together. He promoted the utopian possibilities of the internet not because he was ignorant of the bad side, but because he knew that if people didn't recognize those possibilities, they'd likely be snuffed out in an overzealous attempt to protect us from the "bad" stuff that came with it. As we're now in an era where many of Barlow's worst fears are within the realm of possibility, now is the time to revisit Barlow's vision and understanding. We need to understand the possibilities and opportunities of the internet -- not because we're utopians who think it's coming naturally. But because we know that without understanding what's possible, we'll lock it away forever. Permalink | Comments | Email This Story

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posted about 13 hours ago on techdirt
The Python Power Coder BONUS Bundle has 8 courses to help you master Python. Python is an excellent first programming language because of its simple syntax, coding principles, and easy readability. You'll learn how to build a name generator, a website URL timed blocker, a face swapping app, a subnet calculator, and more. It's on sale $34. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted about 14 hours ago on techdirt
The North Carolina Appeals Court has revised its earlier decision finding that retaliatory arrests over free speech are a thing that is right and good and supported by case law. A man flipped the bird at a state trooper while passing him as he performed a traffic stop. The trooper decided this needed further investigation and pursued the passing vehicle. After demanding the rude passenger's identification (and being rebuffed), the trooper arrested him on contempt of cop charges (obstructing a public officer). The man sued. The appeals court reached the weird-as-fuck conclusion that the officer had probable cause to initiate a traffic stop because one man's extended middle finger could have conceivably resulted in an eventual disturbance of the peace. The court had to do a lot of work on behalf of the state trooper to reach this conclusion as there were several logical and legal hurdles to jump. It released this opinion to universal derision. Seemingly chastened by the backlash (and a seething dissent), the appeals court hastily withdrew the decision. Well, it's back now. And nothing has changed [PDF], outside of some additional text that pounds the table slightly harder during the court's re-assertion of its twisted take on free speech protections. (h/t T. Greg Doucette) The court revamps the opening to quote from one of its own decisions -- one that decided to rewrite a state statute on the fly by determining that it may violate state law to refuse to identify yourself during a valid stop. This 2017 ruling expanded the law to cover stops instead of just arrests. It works out well for law enforcement, which now has the leverage to force anyone to ID themselves. Refusing to ID yourself is now an arrestable offense. And once you're under arrest, you're definitely obligated to cough up identification. That's what the court hangs its new ruling on: that the arrest was due to the failure to identify, not in response to the extended middle finger. But it still has to find the stop valid. And so it does… because that's what it did last time. The court expands its rationalizing on behalf of the sued officer to ensure a future free of consequences for cops who engage in retaliatory stops/arrests. We note that there are a number of court decisions from across the country holding that one cannot be held criminally liable for simply raising his middle finger at an officer. This gesture obviously directed at a police officer is simply an exercise of free speech and, therefore, by itself typically would not give rise to reasonable suspicion sufficient to justify a stop. The key word is "obviously," according to the NC court. After quoting the Supreme Court's admonishment that law enforcement officers are "reasonably expected to exercise a higher degree of restraint than the average citizen" when faced with contemptuous words or hand gestures, the court decides no one needs to be held to a higher standard here. Unlike the circumstances in those other cases, where all that was involved was an individual expressing contempt to a law enforcement officer, here, it was not clear to the trooper to whom Defendant was continuously gesturing. Indeed, Defendant was well past the trooper when he changed his gesture to a pumping motion with his middle finger extended. While it may be reasonable for the trooper to suspect that the gesturing was, in fact, meant for him, and therefore maybe constitutionally protected speech, it was also objectively reasonable for the trooper to suspect that the gesturing was directed toward someone in another vehicle and that the situation was escalating. Such continuous and escalating gesturing directed at a driver in another vehicle, if unchecked, could constitute the crime of “disorderly conduct.” This doesn't sound like anything anyone who wants to be considered "reasonable" should claim they "suspected." Giving a cop the finger (or some sass, which I assume is a term used often in North Carolina) if there's anyone else in the conceivable vicinity is nothing more than issuing a fishing license to law enforcement officers. Permalink | Comments | Email This Story

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posted about 17 hours ago on techdirt
Facebook has continued to do the most Facebooky of Facebook things. Faced with almost entirely baseless claims of "anti-conservative bias" in how it moderates content, Facebook claimed to be doing something useful: bringing in a big outside law firm with big name partners (lead by former Republican Senator Jon Kyl) to analyze those claims. In response, they published... a whole lot of nothing. Kyl released an 8 page report that nearly anyone could have written (at much lower hourly rates, I'm sure). In it, it details areas that 133 different conservative users expressed concerns about how Facebook's platform operates. But the report does literally nothing to say (or better yet, show) whether or not those concerns are valid. It just lists them out. Yes, the "conservatives" interviewed were "concerned" that hate speech designations might disproportionately impact them. Duh. But did it? The report doesn't say. Even more importantly, did such designations lead to disparate treatment for analogous behavior? Again, the report fails to say. it just lists out what "concerns" were raised. Which is about as totally fucking useless as you can imagine. In short, it's Facebook's standard operating procedure. And, of course, this was announced in a meaningless way by former UK politician Nick Clegg, who is now Facebook's VP of Global Affairs and Communications. Seriously, read this blog post and tell me what useful information you can glean from it. It's nothing. It's nine paragraphs of "if we're doing something biased, we'll try to fix it, but we're still studying if we are." This is the weakest sauce from a company that only seems to know how to make weak sauce. Not surprisingly, no one's happy about it. Conservatives hate it because it doesn't say that Facebook is biased against them. Liberals are annoyed because it doesn't say that the claims of bias are nonsense. That's why the whole thing is not just useless, but literally counterproductive. By simply stating the concerns, but making no effort to say whether or not they're accurate, this is like the worst kind of "view from nowhere" reporting. He says this. She says that. Which one is right? Who can tell? Facebook is bending so far over backwards not to upset either side of the traditional political aisle that it's pissing off everyone. Just suck it up, do a real study, and show what the results actually say. Chances are they'll show absolutely no evidence of legitimate "anti-conservative bias," because to date, no credible studies have found any such evidence. But if the study did find something that would be useful to know. Instead, it releases this garbage. Permalink | Comments | Email This Story

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posted about 20 hours ago on techdirt
We've long explored how the nation's phone companies don't really even want to be in the broadband business. They routinely refuse to upgrade their networks despite millions in subsidies, yet often lobby to ensure nobody else can deliver broadband in these neglected footprints either. US telcos have a bizarre disdain for their paying customers, delivering the bare minimum (slow DSL) at the highest rates they can possibly charge without a full-scale consumer revolt. It's not surprising then that many telco DSL customers are fleeing to cable, assuming they even have a second broadband option. This dynamic often results in some absurd dysfunction. Like in West Virginia, where incumbent telco Frontier has repeatedly been busted in a series of scandals involving substandard service and the misuse of taxpayer money. The graft and corruption in the state is so severe, state leaders have buried reports, and, until recently, a Frontier executive did double duty as a state representative without anybody in the state thinking that was a conflict of interest. Things haven't been much better for the telco in states like Minnesota, where it's under investigation for failing to upgrade -- or even repair -- its shoddy networks. The same thing is also going on in New York, which just opened a renewed investigation after being inundated in complaints about terrible service: "NY Public Service Commission (PSC) staff reported "that several Frontier Communications subsidiaries have significant service-quality problems, including escalating complaint rates, lengthy repair durations, and localized network reliability issues," a PSC announcement Thursday said. PSC staff is seeking more detailed information from Frontier on customer trouble reports and "will work with Frontier to develop and implement a plan to improve poor localized network reliability conditions," the announcement said. You may be detecting a theme here. Things are so bad for Frontier, the company refused to even answer questions from analysts or the press during its latest earnings call. Most analysts think the company will ultimately teeter into bankruptcy, something that may also be in the cards for similarly large, dysfunctional telcos like CenturyLink. And while this kind of market failure is bad for consumers who already lack competitive broadband options, it's great for cable giants like Charter and Spectrum which are exploiting the US telco collapse to enjoy bigger regional monopolies than ever before. Less competition means higher prices and no incentive to fix the cable industry's abysmal customer service. Throw in regulatory capture at the FCC and the steady erosion of broadband consumer protections into the equation, and you should be able to see how this is recipe for even bigger problems. Permalink | Comments | Email This Story

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We've been discussing the new PC gaming platform wars that kicked off with Epic releasing their own Epic Store to rival Valve's Steam and attempting to power it with game exclusives built on a more generous split with publishers. There has obviously been a lot to talk about in this new rivalry, from Steam's response, to Epic's flubbing of its store's main purpose, to the effect Epic's exclusivity deals are hampering the use of crowdfunding to get more games made. But one of the most interesting aspects of this whole ordeal is how clearly Epic's leadership has attempted to frame this all as a PR war above all else. Essentially, Epic is combating the public's natural distaste for exclusivity deals by pointing the finger back at Steam, stating that none of this would be an issue and the exclusive deals could go away tomorrow if Steam mirrored Epic's revenue splits. The argument is that what Epic is really after is a better gaming industry that makes more and better games, something that should benefit the very fans now complaining about the company's tactics. So, how's that PR battle plan working? Not terribly well, judging by some of the peripherals. For instance, when part of the announcement for a game publisher releasing exclusively on Epic includes the company begging gamers not to hurl vitriol at it in response, that's an indication the gaming public hasn't been swayed. One of the easiest bits of news to miss on Monday’s Gamescom Opening Night Live show was tucked away in an ad for the Epic Games Store. A simple sizzle reel that showcased a number of games exclusive to the controversial digital PC game storefront included an upcoming indie that previously wasn’t in Epic’s roster: Oddworld Soulstorm. Shortly after, Oddworld creator Lorne Lanning posted a message via the Oddworld Twitter account. A message from Lorne: pic.twitter.com/uAvS53i156 — Oddworld (@OddworldInc) August 19, 2019 If that all reads to you as a thinly veiled attempt to plead with the public not to harass the Oddworld folks over the exclusivity deal, that's because that's exactly what it is. And, as you may have guessed, it didn't work. In fact, not only did the anger at the exclusive Epic Store release come through anyway, Glumberland, the company behind the game, was taken to task for attempting to head off the storm with the above message. It proved to be a futile effort, as post from Ben Wasser—one of Glumberland’s two members—detailed the deluge of harassment he received for choosing to sell his game in the way that he wished. Among the usual complaints was a new one: Wasser was rude for calling the mob of harassers toxic and entitled, and that the glibness of his initial post was disrespectful. A couple of things are worth noting here. First, most of the harassment thrown at gamemakers over their business practices is way, way out of hand. It's the kind of toxic overreaction and entitlement that gives gamers everywhere a bad name. Second, there is no real indication as to whether this is a vocal minority or majority, only that it is indeed vocal. Still, we're at a place in all of this where publishers are proactively sending out these messages to reason with that vocal group and to attempt to head off the shitstorm of backlash over exclusive deals with the Epic Store. Whatever that is, it is most certainly not an indication that Epic is winning the PR war it chose to start. Permalink | Comments | Email This Story

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Inside Attorney General William Barr's long rant about the lack of respect for police officers in this nation was a shot or two at recently-elected District Attorneys (like Philadelphia's Larry Krasner). Barr feels -- like many of the police union reps he was speaking to -- DAs that institute reforms, reduce incarceration, and punish police officers for misconduct are on the wrong side of history. There is another development that is demoralizing to law enforcement and dangerous to public safety. That is the emergence in some of our large cities of District Attorneys that style themselves as “social justice” reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law. These anti-law enforcement DAs have tended to emerge in jurisdictions where the election is largely determined by the primary. Frequently, these candidates ambush an incumbent DA in the primary with misleading campaigns and large infusions of money from outside groups. Once in office, they have been announcing their refusal to enforce broad swathes of the criminal law. Most disturbing is that some are refusing to prosecute cases of resisting police. Some are refusing to prosecute various theft cases or drug cases, even where the suspect is involved in distribution. And when they do deign to charge a criminal suspect, they are frequently seeking sentences that are pathetically lenient. So these cities are headed back to the days of revolving door justice. The results will be predictable. More crime; more victims. A department that frequently touts the power of prosecutorial discretion is angry because prosecutors are exercising discretion. And it's a bit rich for AG Barr to complain about "revolving door justice" when law enforcement agencies all over the nation continue to hire officers fired for misconduct and abuse by other agencies. The administration's back-the-blue attitude is on full display. Barr's angry speech about the respect he believes officers are owed has trickled down to the lower ranks of federal prosecutors. In the wake of a shootout between a criminal suspect and several Philadelphia police officers, US Attorney William McSwain decided to take his own shot at Philadelphia DA Larry Krasner. What I witnessed last night was true heroism by the Philadelphia police. But the crisis was precipitated by a stunning disrespect for law enforcement - a disrespect so flagrant and so reckless that the suspect immediately opened fire on every single officer within shooting distance. Only by the grace of God did they survive. Where does such disrespect come from? There is a new culture of disrespect for law enforcement in this City that is promoted and championed by District Attorney Larry Krasner - and I am fed up with it. It started with chants at the DA's victory party - chants of "F*** the police" and "No good cops in a racist system." We've now endured over a year and a half of the worst kinds of slander against law enforcement - the DA routinely calls police and prosecutors corrupt and racist, even "war criminals" that he compares to Nazis. This vile rhetoric puts our police in danger. It disgraces the Office of the District Attorney. And it harms the good people in the City of Philadelphia and rewards the wicked. While McSwain was bitching about a prosecutor he doesn't like, DA Larry Krasner was praising the Philadelphia PD -- which saw six of its officers wounded -- for their handling of the volatile situation. McSwain also suggested the federal branch would step in to directly control the actions of the Philly DA. His exact words were "We're going to provide some adult supervision." As Adam Steinbaugh points out, that's not how federalism works. Someone must have pointed that out McSwain, who walked back this comment (but none of his press conference remarks) less than two hours later. Perhaps the federal prosecutor was just being reflexively defensive. The person who allegedly shot all of these cops was a federal snitch who got a break on his most recent prison sentence because of how helpful he was. McSwain failed to mention, however, that alleged shooter Maurice Hill’s interactions with law enforcement predated Krasner taking office. Nor did McSwain acknowledge that the 36-year-old Hill, who on Saturday was charged by Krasner’s office with attempted murder and multiple counts of aggravated assault related to the incident, has been a federal informant for years, according to documents obtained by The Appeal. McSwain may have known this news would eventually come out and needed to get out ahead of the narrative before it flipped. Or he may have been blissfully unware and simply decided to engage in the DOJ's "criticizing law enforcement kills cops" politicking. Neither move makes McSwain or police officers look any better or does anything to close the divide between the public and its public servants. But this is the narrative that's being aggressively pushed with Bill Barr running the DOJ. Anyone who isn't willing to shower cops with respect and adulation is an enemy -- even those basically playing for the same team. There will be no prosecutorial discretion under this administration. There will only be as much cruelty and punishment as it can possibly mete out. Every time something bad happens to a cop, some federal law enforcement rep will be there to claim it was disrespect -- rather than guns and bullets -- that hurt or killed the officer. Permalink | Comments | Email This Story

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For the better part of two years, I've been noodling on a post (I've half written it a bunch of times) talking about how perhaps the biggest problem with so much of what we see today can be tied up in two related concepts: "fiduciary duty to shareholers" and the idea of "maximizing shareholder value." I talked a little about this a few weeks back in highlighting how almost all of the problems that people talk about when they complain about big tech can really be traced back to Wall Street and this idea of maximizing shareholder value. Conceptually, maximizing shareholder value makes some sense, but only if you don't think about it for more than a few minutes. Because the whole thing falls apart as soon as you ask "over what time frame?" I first wrote about this back in 2006, in what I called the "time function of profits," in trying to understand why so many people were claiming that Craigslist's approach to grow slowly (but massively) by leaving most of their site free and not doing all sorts of icky stuff, was seen by some as "leaving money on the table" or even being anti-capitalist. As I pointed out then, that only made sense if you thought in the very short-term. Taking a longer term view suggests that "maximizing" profits in the short run is likely to create significant problems in the long run, whether it be competition or customers annoyed at you and the like. In a follow up post I did in 2008, I pointed out that maximizing profits shouldn't mean screwing your customers. The real issue is the time frame. If you want to maximize profits for just this quarter, then, yes, screwing over your customers is a viable strategy. However, if it's more long term, then the incentives should change quite a bit. It's just like the Prisoner's Dilemma. If you are playing that game once, the incentives are heavily weighted towards cheating. However, if you're playing it many, many times, the incentive structure changes, and it should move to a more cooperative model. For some reason, however, this hasn't happened that much in real life. Many businesses (and many folks on Wall Street) assume that having a "fiduciary duty" to "maximize shareholder value" or "shareholder profits" means squeezing out every penny of profits right away, with no concern for the future. Perhaps stating this backwards thought process most clearly was former big record label exec Dick Morris who once famously told Wired magazine that if someone is asking you to give up some money now to make more later, it means that "someone, somewhere, is taking advantage of you." And, of course, one of the foremost proponents of this theory was Milton Friedman, who argued that the only responsibility of a company is to its shareholders, and that companies need to maximize the return to those shareholders. Friedman trashed the idea of social responsibility for corporations, but he, himself, didn't seem to recognize how the long term played against the short term here. Ignoring any sense of social responsibility, in favor of short term maximization, would lead not just to long term social harms, but also to limits on the long term value for shareholders. In recent years, we've started to see some pushback on these ideas. A few months ago, there was the announcement of a new Long Term Stock Exchange, designed to respond to these challenges, by giving companies more time to accomplish stuff than the usual quarterly heartbeat. But perhaps much bigger news is that the Business Roundtable, a gathering of top CEOs, has now put out a letter saying that shareholder value cannot and should not be the only focus of a corporation. I'd argue that the letter is not that well-written, and given the signatories, I'm sure it went through millions of dollars worth of lawyering before anyone agreed to sign onto it. However, it does set up a much more thorough framework for thinking about all of the stakeholders that a company should consider in doing business: customers, employees, suppliers, communities, and shareholders. It's signed by a bunch of big company CEOs (the letter itself is one page, then there are 11 more with signatures). Of course, it pays to be cynical about such things. It's one thing to say all of this, another thing altogether to actually walk the walk. And, certainly, some of the signatures come from CEOs who run companies who don't exactly have a strong history of paying attention to most of the stakeholders listed above. Indeed, if you want to find some of the worst behaving companies -- especially towards customers, employees, and communities -- this is a ready-made list (I mean, AT&T's and Comcast's CEOs, Randall Stephenson and Brian Roberts, both signed on to this). So, no one should take this as a real commitment to change. That's only going to come if the companies are seen to be putting this into action, and that's where the public (and the media) need to come into play. When companies -- especially those who signed onto this document -- are seen behaving badly, it should be called out, and this letter should be referenced. Yes, it's quite probable that many signed onto this thinking that it's a good PR effort to pretend to be good corporate citizens for a day or two. But if we want to enact real change, and have companies get past the short term view of screwing over everyone to "maximize shareholder value," it's only going to happen if these execs are held to the very standards they claim to support. Permalink | Comments | Email This Story

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Snitches no longer get stitches. In the year of our lord two-thousand-nineteen, snitches get street surveillance gear from Amazon. Amazon's Ring doorbell -- which sports a handy camera to catch all those package thieves -- has swallowed up more than 200 police departments with its charm offensive. Cops get doorbell cams at a discount and hand them out for free to locals with the assumption residents will repay the favor by granting officers warrant-free access to footage any time they ask. To decrease friction, Ring -- which has final edit approval on police publicity efforts -- nudges people towards its snitch app, Neighbors, which encourages users to post any suspicious footage they capture. Ring also nudges law enforcement towards more social media interaction with Ring users to blur the line between sharing with neighbors and sharing with government employees. The push continues. Amazon sees a market worth cornering and cops see a handy way to turn multiple doorsteps into extensions of their existing surveillance network. Win-win for all involved, I guess, except those who want to secure their homes without feeling obligated to hand over footage whenever the government thinks it might be helpful. The advantages for law enforcement are obvious. And that has led to more… um… proactive efforts by law enforcement to spread the good word about these doorbell cameras. Louise Matsakis reports for Wired that a California law enforcement agency recently offered Ring doorbells to citizens in exchange for some help with their cop work. On June 21, Chris Williams, the captain of the El Monte Police Department in California, sent an email to staff reminding them about a new incentive for crime witnesses to share information with law enforcement. Rather than the cash reward used by some programs, El Monte gave out camera-equipped doorbells made by the home security company Ring, which retail starting at $99. The asking price for a "free" $99 camera seems to be a bit steep. According to documents obtained by Caroline Haskins of Motherboard, the El Monte PD isn't interested in vague tips about somebody seeing somebody do something. This may be acceptable for confidential informants, but potential camera "winners" have a higher bar to hurdle. The tips must be specific, result in a prosecution, and -- here's the big one -- potential camera recipients must be willing to testify in court. Since the PD is also sort of getting a free camera -- what with Ring's online portal that allows cops to locate any Ring owner and ask them directly for footage sans warrant -- this seems like a raw deal for the general public. While most people do want to help law enforcement put criminals behind bars, a decent percentage of those probably aren't willing to go so far as to get on the stand during a trial. Ring says it doesn't encourage this sort of thing, nor does it craft scripts or write PR pitches suggesting cops offer free cameras in exchange for testimony. But Ring definitely encourages this sort of thing with its unending push to deploy more cameras and get more people using its Neighbors app. A few weeks after Williams sent out a reminder about the rewards program, a Ring employee emailed him with a congratulatory note: “Since EMPD first onboarded on 5/1, you have all increased your Neighbors app users (El Monte residents) by 1,058 users! Great job!” And there's even more encouragement where that came from. Ring nominated the El Monte Police Department for Ring’s “Agency of the Year Award,” according to new emails obtained by Motherboard. One email from a Ring representative, dated July 2019, asks the police department to submit “a success story” that resulted from using the Law Enforcement Neighborhood Portal. There's really no downside to the El Monte PD's exchange program, other than some negative press. If someone is willing to do all of this for a $99 camera, it's unlikely they'll push back at all when the PD starts asking for their doorbell footage. Permalink | Comments | Email This Story

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Just days after publishing yet more anti-internet nonsense, the Wall Street Journal, at least, allowed Andy Kessler to publish an excellent opinion piece calling our Senator Josh Hawley's ridiculous "big government" approach to regulating internet companies. Mr. Hawley’s new bill has all the worst instincts of the regulatory state—a disappointing achievement coming from a Republican. It would remove the autoplay feature from YouTube, end infinite scrolling on Twitter and Facebook feeds, limit scrolling time to three-minute sessions, set default limits on the use of platforms to 30 minutes a day, and outlaw Snapchat streaks (rewards for consecutive days of contact with friends) and most “gamification” (badges, rewards) for any online service. These diktats are the opposite of market freedom. The bill’s final kicker is a proposed triennial Federal Trade Commission report to Congress describing how internet companies “interfere with free choices of individuals” by “exploiting human psychology and brain physiology.” In other words, Mr. Hawley wants to restrict freedom because it interferes with free choice. Or something like that. Cut to a video of Orwell rolling over in his grave (though it won’t autoplay). OK, to be fair, Skopos Labs gives the bill a measly 3% chance of being enacted. But that doesn’t make it any less . . . cuckoo. Kessler's piece also calls out Hawley's laughable claim that there is no innovation at all in social media. This antitech inclination hasn’t always defined Mr. Hawley’s persona. As attorney general he said, “American workers and American entrepreneurs can compete with anybody, anywhere if our government will stop making America a cost-prohibitive place to do business.” Hear, hear. When he won his Senate seat last year he ran mostly as a conventional conservative. But even then he already had his enemies marked. His first Senate speech lamented the “cold and judgmental world of social media,” and things kind of went downhill from there. Hawley, of course, has been grandstanding a lot lately about how the "cosmopolitan elite" are the problem. He conveniently leaves out the fact that he attended Stanford and Yale Law School, clerked for the Supreme Court, worked at a massive "cosmopolitan" law firm (based in DC and London), Hogan Lovells, and then became Attorney General for Missouri before becoming Senator. Hawley is about as "cosmopolitan" a Senator as you can find. But apparently, in grandstanding to what he seems to believe is a very, very gullible base, he wants to convince them that he's standing up to the "elites" and that the only innovation that matters is innovation that comes from "the Heartland" or some such nonsense. As Kessler notes, cynically, Hawley's act is all for show: Whether that worry is real or not doesn’t matter; condemning tech is a form of pretend populism. Mr. Hawley is taking an Elizabeth Warren-esque “I have a plan for that” approach, which is more about grabbing headlines than actually passing laws. Yet the claim that big tech companies don’t deliver innovation is false. We can stream TV shows on subways, enjoy same-day package delivery, have a lady in our phones help us to avoid traffic, sort photos automatically by date, location and faces, and get instant answers to any question in our kitchens from something that looks like a hockey puck. Yeah, but what have you done for me lately? Kessler notes that Hawley's plans would completely destroy innovation online. Mr. Hawley’s style of heavy-handed regulation is what killed Detroit, distracted phone companies, inflated health-care costs, and wrecked education. Don’t let it kneecap the internet. It won’t be long before the senator announces, “If you like your social media, you can keep your social media.” Given the willingness of the WSJ to publish anti-internet nonsense of late, it's nice to see Kessler able to get at least something sensible through. Permalink | Comments | Email This Story

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The How to Hack from Beginner to Ethical Hacking Bundle has 8 courses designed to teach you the skills you need to become an ethical hacker. you’ll learn how to diagnose different kinds of cybersecurity attacks and how to defeat them. You'll practice all the skills and techniques in real-time using an ethical hacking lab so you can put your learning to the test. It's on sale for $39. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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An elaborate scheme involving a fake college set up in New Jersey by ICE has, unsurprisingly, resulted in a lawsuit by some of the foreign students swept up in the sting operation. Apparently having given up on rooting out the worst of the worst non-citizens, ICE is contenting itself with arresting and charging foreigners for attempting to stay in the country legally by continuing their education. The fake university looked pretty real to applicants. It had a website, a Facebook page, and -- most importantly -- accreditation by a national accreditation service. The school's website told students the fake school was certified by the DHS's Student and Exchange Visitor Program to "educate international students." It all looked legit. None of it was. ICE claims it was targeting people who defrauded students or universities by brokering illegitimate educational offerings meant to allow visitors to overstay their visas. That doesn't explain why ICE accepted registration fees from interested students. Nor why it arrested a bunch of students trying to do something they were legally allowed to do. ICE ended up with about eight criminal suspects from the hundred-plus arrests resulting from the sting operation. Some of the others caught up in the sting had their visas cancelled, supposedly due to "fraudulent enrollment." So, in the government's eyes, the people ICE tricked into enrolling in its very real-looking fake college are every bit as criminal as the criminals the government is actually prosecuting. The lawsuit deals with these suddenly-cancelled visas. The issue is the government's arbitrary decision to turn people they first referred to as "victims" into accused criminals solely for the purpose of stripping them of their visas. This determination comes without any form of due process attached, so it's up to federal courts to field these challenges, as the Appeals Court points out. The Appeals Court delves into administrative minutia to counter the government's arguments and point out where the lower court went wrong. But it also spends some time dealing with the government's contradictory assertions. After sending letters calling the duped students "frauds," the government argued in court it didn't actually mean what it said in the letters informing the students they were no longer welcome in this country. From the decision [PDF]: We held argument on September 25, 2018. There, for the first time, the Government informed this Court that its position was not that the students had committed fraud by enrolling in UNNJ. Rather, the Government believed that the students were the victims of fraud. The Government twice stated that the students “were caught up in it in the sense that they were victim by the academic recruiters” and that “[t]here was no fraud here. These students, as far as we are concerned, were the victims of fraud. . . . [T]hey were caught up in it.” [thinking face emoji] How does the government explain calling victims of fraud perpetrators of fraud when revoking their visa privileges? In a word, badly. When pressed about the language in the terminating letter, the Government (incorrectly) stated that “fraudulent enrollment” was “passive voice,” and therefore should not be read to imply that the students had committed fraud. That's a very fine -- and very understated -- parenthetical there. And it just keeps getting better. The government comes off as a petulant child who has decided only one thing will make it happy -- tossing these students out of the country -- and will do whatever it takes to ensure that happens. Despite the Government’s position that the students were the victims of fraud, it acknowledged that database entries for each student would reflect the “fraudulent enrollment” determination made by DHS. The Government acknowledged that it was able to, consistent with its stated position, eliminate any database notations that suggested that the students had committed fraud, yet it refused to do so. Beautiful. And that's followed immediately by another line of pure horseshit, delivered directly to bench by the government's lawyers. It argued that correcting the record on a preventive basis was not necessary because the “fraudulent enrollment” determination would not have any adverse impact on the students in future immigration proceedings. Ah, yes. Being accused of criminal acts by federal agencies tends to have no effect on the accused, especially during removal proceedings or the visa application process. After all this "no harm, no foul" stuff, delivered in hopes of persuading the judge the government wasn't just a tantrum-throwing child wearing its dad's suit, the government decided to embrace its inner child. On October 12, 2018, the Government changed course yet again. It filed a letter “to clear up any confusion from certain exchanges” that occurred during argument. The Government informed the Court that it was not, in fact, conceding “that all—or even most—UNNJ enrollees were innocent victims.” In fact, the Government now asserted that some of the students “in all likelihood, knew that their academic recruiters were committing visa fraud” and others even “conspired with their academic recruiters to commit visa fraud.” “Thus,” the letter concluded, “to the extent that any of the Government’s comments at oral argument left the misimpression that all of UNNJ’s enrollees were innocent victims of the academic recruiters’ visa fraud scheme, that is not the case.” After the discussion of the government's argumentative fuckery, the court turns to the issue at hand. The lower court said the students needed to take their problems up with the immigration court and/or the DHS first before bringing it to the district court. The Appeals Court disagrees. The students can bring this action directly because the determination made by the DHS was indeed final. There are no intermediate steps these students could have taken to challenge the DHS's determination. The order terminating these students’ F-1 visas marked the consummation of the agency’s decision-making process, and is therefore a final order, for two reasons. First, there is no statutory or regulatory requirement that a student seek reinstatement after his or her F-1 visa has been terminated. Moreover, even if the students attempt to pursue the administrative procedures for reinstatement, there is no mechanism to review the propriety of the original termination order. Second, the students need not wait for removal proceedings to be instituted. As we stated in Pinho, an order’s finality cannot depend on the institution of removal procedures which may never occur. And in any event, immigration judges cannot review the original denial of reinstatement. They do not have that authority. The court makes no statement on the propriety of the ICE's sting operation. It does, however, spend a few pages detailing all the efforts ICE made to ensure the bogus college looked legitimate. The decision is subtly damning in its construction, contrasting the "realness" of the college with the government's claim students it first called "victims" were now suddenly fraudsters. The lawsuit lives on, headed back to the lower court to give the plaintiffs a shot at getting the DHS's "fraud" designation scrubbed from their permanent record. Permalink | Comments | Email This Story

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Earlier this year, we wrote about a legal fight in New Hampshire, where patent trolling firm ATL, had sued a bunch of critics for defamation for calling them a patent troll. As we noted in February, this was an incredibly weak argument, as it's a statement of opinion. Thankfully, the New Hampshire Supreme Court got this one right and ruled that calling someone a patent troll is not defamatory. The ruling is a pretty straightforward, by-the-books ruling on a bogus defamation claim on an opinion statement. It cites all the usual cases -- mainly Phantom Touring -- to point out that "patent troll" is just an opinion that can't be defamatory, because there's no objective standard by which you would prove it true or false. People can (and do!) disagree over what constitutes a patent troll, and the court system is not there to settle that debate. We conclude that the challenged statement, that ATL is a well-known patent troll, is one of opinion rather than fact. As the slideshow demonstrates, the statement is an assertion that, among other things, ATL is a patent troll because its patent-enforcement activity is “aggressive.” This statement cannot be proven true or false because whether given behavior is “aggressive” cannot be objectively verified: “[w]hether or not a particular person’s behavior may be characterized as” aggressive is “a quintessential expression of personal judgment which is subjective in character.” Piccone, 785 F.3d at 772 (quotations and brackets omitted); see Catalfo, 657 F. Supp. at 468. “[I]t means different things to different people[,] and there is not a single usage in common phraseology.” McCabe, 814 F.2d at 842 (quotation and ellipsis omitted) (“The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); see also Phantom Touring, 953 F.2d at 728 (statements that plaintiff’s theater production was “fake” or “phony” could not be objectively verified “since those adjectives admit of numerous interpretations” (quotations omitted)). That CUNA acknowledged the “pejorative” nature of the phrase “patent troll” does not mean it is an assertion of fact rather than opinion. See Piccone, 785 F.3d at 772; see also Masson v. New Yorker Magazine, 832 F. Supp. 1350, 1367 (N.D. Cal. 1993) (“Falsity and defamatory meaning are analytically separate.”). To the extent the plaintiffs argue that CUNA’s or the other defendants’ use of “patent troll” is one of verifiable fact rather than opinion because those statements were accompanied by a definition of the phrase, we disagree. As should be apparent from our discussion above, and as the Catalfo court explained, if a challenged statement is defined, but that definition itself “does not have a precise meaning such that it is capable of verification,” neither does the challenged statement. Catalfo, 657 F. Supp. at 468 (even if “sleazy” carried definition of “marked by low ethical standards,” it was not “capable of verification” because “[e]thical standards are inherently subjective”). For the reasons explained above, the definition of “patent troll” offered by CUNA cannot be objectively verified. Other plaintiffs find their statements to be similarly protected: Similar to CUNA’s allegedly defamatory statements, we conclude that the “references to ATL as a patent troll” in ABA’s 2013 testimony are expressions of opinion. Unlike CUNA, ABA did not offer a precise definition of “patent troll” in its testimony.4 If anything, though, ABA’s failure to specifically define the phrase, coupled with the lack of any concrete common definition, see Golden, supra at 2112-13 n.7, as well as the myriad ways in which its utterers deploy it, see Allison et al., supra at 242, makes it even more difficult for us to “imagine . . . objective evidence that might conclusively prove or disprove it.” Levinsky’s, 127 F.3d at 130. Like other, similar pejorative terms, “patent troll” is “quintessentially subjective.” Id.; see, e.g., Piccone, 785 F.3d at 772; Gray, 221 F.3d at 248; Dilworth v. Dudley, 75 F.3d 307, 310 (7th Cir. 1996) (statement calling plaintiff a “crank” was not actionable because it was “just a colorful and insulting way of expressing” disapproval of the plaintiff’s work). “[T]he status as a troll is in the eye of the beholder. Every firm that has a patent valuable enough to support major [infringement] litigation . . . has acquired that patent from some person who has invested the resources to invent that technology.” Mann, supra at 1023-24; see also Electronic Frontier Foundation, 290 F. Supp. 3d at 946. The plaintiffs appear to argue that ABA’s 2013 statement referring to ATL as a patent troll cannot be construed as an opinion because it was made in the context of giving legislative testimony. According to the plaintiffs, “legislation cannot address an issue that cannot be defined.” We disagree with the plaintiffs’ “untenable premise” that all legislative testimony must, ipso facto, consist entirely of factual assertions. Riley, 292 F.3d at 294. People can, and regularly do, express their personal opinions before legislatures. The court also (easily, as have other courts) rejects the claims that if you don't say "I think" or "In my opinion" before a statement of opinion, it's not longer an opinion: The plaintiffs’ appellate arguments with respect to Stier and Pierce Atwood’s statements are generally duplicative of their arguments as to CUNA’s and ABA’s respective statements. Their arguments pertaining to these two defendants differ from those pertaining to the other defendants in two ways that bear mention. The plaintiffs contend that the context of Stier and Pierce Atwood’s patent troll statements make them actionable because they contain “no language to alert the audience that the statements . . . are expressions of opinion.” However, “the law does not force writers to clumsily begin each and every sentence with” language such as “I think,” or “in my opinion,” for a statement to constitute an opinion. Riley, 292 F.3d at 292 (quotation and brackets omitted). Rather, Stier and Pierce Atwood’s patent troll statements are opinions for the same reason that CUNA’s and ABA’s statements are: whether ATL is a patent troll cannot be “objectively verified.” Piccone, 785 F.3d at 772 (quotation omitted). I'm reminded of a lawyer who once pointed out to me that it's just as easy to start a sentence saying "in my opinion..." followed by a potentially defamatory factual statement, as it is to state "it is a fact..." followed by a statement that is purely opinion. All that matters is whether or not the claim itself is actually a fact or an opinion -- not whether your declare it one way or the other. And with that, ATL has to live with the, uh, fact that Vermont's Supreme Court has said it's not defamatory to call ATL a patent troll. So, sing it with me, folks: ATL is a patent troll. After all, it sent threat letters to a ton of banks and credit unions, claiming their ATMs violated its patents, and demanding licensing fees. It also set those license fees at a rate that would be below what it would likely cost to fight a patent lawsuit. These are hallmarks of what most of us consider to be patent trolls. Permalink | Comments | Email This Story

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While the Trump administration's war on Huawei may be largely fueled by evidence optional protectionism, that certainly doesn't mean Huawei is an ethical company. Like any good telecom and networking giant, it can routinely be found helping governments engage in behavior that's less than, say, moral. For example a damning report emerged this week in the Wall Street Journal (paywall, here's a non-paywalled video report and a fairly decent alternative take) showcasing how Huawei technicians have helped African leaders intercept encrypted transmissions of their political opponents: "Technicians from the Chinese powerhouse have, in at least two cases, personally helped African governments spy on their political opponents, including intercepting their encrypted communications and social media, and using cell data to track their whereabouts, according to senior security officials working directly with the Huawei employees in these countries. Yeah, gross. The "help" included helping government officials gain access to protected WhatsApp data from political opponents, which was then used against them: "The Huawei engineers, identified by name in internal police documents reviewed by the Journal, used the Israeli-made spyware to penetrate Mr. Wine’s WhatsApp chat group, named Firebase crew after his band. Authorities scuppered his plans to organize street rallies and arrested the politician and dozens of his supporters." Granted, the investigation did not turn up evidence that this spying was occurring on behalf of Beijing, or replicated in other countries like the US. Nor did it indicate that any kind of intentional flaw or backdoor in Huawei gear was used to gain access to this confidential data (the cornerstone of the effort to ban Huawei from international networks). But the report does a great job showing how most telecoms are happy to throw ethics in the toilet if it means cozying up to governments when it's profitable to do so. In this case, Huawei's "help" even included helping African governments access the phones and Facebook pages of bloggers running a pro-opposition news site that had been previously critical of the government. The fusion of telecoms and law enforcement is obviously of particular note when that fusion results in attacks on the press, usually disguised as something else. Enter that ever-menacing but nebulously defined villain known as "fake news": Zambia’s ruling party spokesman, Antonio Mwanza, said Huawei technicians, based inside the Zambia Information & Communications Technology Authority, or Zicta, regulator, were helping the government combat opposition news sites. “Whenever we want to track down perpetrators of fake news, we ask Zicta, which is the lead agency. They work with Huawei to ensure that people don’t use our telecommunications space to spread fake news,” he said. Ugandan officials said that Huawei representatives have stopped attending technical briefings since the Journal submitted questions to the Chinese company. China’s Foreign Ministry said in a written statement that it is common practice for countries to cooperate on policing. “Some African countries have enthusiastically built ‘safe cities’ in order to improve the lives of their people and their business environments,” the ministry said. “To equate this positive effort with ‘surveillance’ smacks of ulterior motives.” That said, none of this is historically unique. Telecoms are, again, routinely grafted to governments, law enforcement, and intelligence agencies in problematic ways. Just ask AT&T, who is so tightly wired to the NSA, you can't tell where the telco ends and the government begins. Similarly the US has a long history of partnering with companies to provide IT support and telecoms gear to a huge variety of dictators who then utilized that technology to help track and kill political opponents, dissidents, and even students. The press and public moral indignation at this kind of behavior tends to be... inconsistent and colored by patriotism. And while Huawei is clearly not ethical, you'd be hard pressed to find a telecom giant that is. The US blackballing of Huawei is still based on a lot of unproven allegations of wholesale spying on Americans at China's behest, something that would drive (and has driven) US companies bat-shit crazy when the shoe is on the other foot. And while the US war on Huawei is partially based on some genuine security concerns, it's also heavily driven by a protectionist bid by companies like Cisco that simply don't want to have to compete with cheaper Chinese kit. The exact percentage breakdown of this equation has yet to be seen. Permalink | Comments | Email This Story

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With the chief hurdle for infringement in trademark law being potential public confusion as to the source of a good or service, we sometimes toss that standard around as a blanket sort of thing. And, in trademark law, it kind of is just that binary. But the combination of the protectionist view of trademark law taking hold in America and the unfortunate habit of many people attempting to trademark their own names in one fashion or another, I wonder if the law might need to be updated in some ways. For example, we've seen several instances of intra-family trademark spats that arise from a person or business looking to trademark or simply use their own names. Any system of trademark enforcement that results in broadly disallowing someone to use their own name in the marketplace feels like a clear step too far, if only from a common sense perspective. Yet it keeps happening. The latest iteration of this involves a lawyer, George Sink Sr., suing his own son, George Sink Jr., for using his own name for his law firm and marketing material. The court overseeing the matter just this week issued a restraining order barring George Jr. from using his own name to advertise his firm. A Fourth Circuit judge issued a temporary restraining order that stops Sink Jr. from using the family name to advertise his personal injury firm on its website, in email, and on social media. “George Sink Jr. is of course not barred from practicing law under his birth name, but in advertising for his legal services he must do more to differentiate between him and plaintiff,” writes Judge David Norton. “The mere fact that it is George Sink Jr.’s given name does not automatically shield him from allegations of infringement.” The court documents note the similarities in the advertisements Sink’s son was using and said customers might and in some cases did get confused about which Sink law firm they were dealing coordinating with. “The logos that each party uses on their respective law firm websites, the name GEORGE SINK is more prominent than the auxiliary words,” writes Norton. Again, perhaps this all legally correct. But that sure feels like an indication that there is a problem with the law, not with a person using his or her own name in their business' name. And the fact that this sort of dispute incorporates an inter-family squabble makes this all the more bizarre. George Jr. apparently worked for his father's firm some time ago and practiced there as George Jr. His firm handles a different type of law than his father. But now that his son has opened up his own firm using the uncreative name George Sr. gave him, it's a legal matter. In the suit, Sink Sr. says the company name is "famous" around South Carolina and Georgia. He also notes in the document that the business' name is trademarked, and by using a similar name, his son is committing trademark infringement and creating unfair competition. According to the lawsuit, Sink Jr.'s firm was hurting his father’s online reviews and prominence on search websites. In the lawsuit, Sink Sr. alleges that his son has always preferred the nickname "Ted," and by going by the same name as his father, he is confusing customers. George Sr. sure seems fun. Regardless, I can't think of any reason why a bit more nuance couldn't be inputted into existing trademark law. All this really screams for is a provision in the law that would allow someone to use their birth-name so long as there was no other attempt to create confusion with another entity holding a similar mark. That...just doesn't seem too hard to do. Permalink | Comments | Email This Story

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As you'll recall, last year, the White House tried to remove CNN reporter Jim Acosta's press pass over a silly made up controversy claiming that he had "assaulted" an intern in trying to hold onto the microphone while the intern had tried to pull it away. CNN sued and a court sided with them in blocking the White House's action. Soon after, the White House released new rules, that we mentioned left them open to future 1st Amendment challenges. Well, here we are. On Friday, the White House removed Playboy reporter Brian Karem's press pass, claiming it was about some sort of weird yelling match Karem had with ex-Trump official Sebastian Gorka at Trump's silly social media troll summit back in July. Karem immediately said he'd sue over the removal and his attorney Ted Boutrous has sent a series of letters to White House press secretary, Stephanie Grisham over the last few weeks. The opening of the first one lays everything out pretty nicely. We write on behalf of our client, Brian Karem, who serves as the White House correspondent for Playboy, in response to your August 2, 2019 letter informing of your "preliminary decision" to suspend his hard pass for 30 days, supposedly "due to [his] conduct at the press event in the Rose Garden on July 11, 2019," and giving him one business day to submit a response before you "make a final decision on the matter." We object to this arbitrary and unfair procedure threatening to deprive Mr. Karem of his constitutionally protected liberty and property interests in his hard pass, which would flatly violate the First Amendment and the Due Process Clause and the principles established by the D.C. Circuit's decision in Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) and many other cases. Your invocation of the Rose Garden event weeks after it occurred and without any notice whatsoever that you were considering taking action against Mr. Karem is the opposite of due process, and is clearly pretext for punishing Mr. Karem based on his viewpoint and the content of his reporting on President Trump. It's the "arbitrary and unfair procedure" part of the above quote that is most important. The White House can't just cook up reasons to remove someone if the real reason is they don't like his reporting (as was the case with Acosta). In a later letter, Boutrous points out that Grisham herself has admitted to not following any basic due process, as required by the 1st Amendment: Your email of last night revealed that you failed to conduct a reasonable investigation before reaching your preliminary decision. Among other deficiencies, you admit that you did not speak to a single witness. You did not speak to Sebastian Gorka, Jim Hanson, or any of the other individuals who are seen on video taunting and/or threatening Mr. Karem. You did not speak to any of the journalists who were standing alongside Mr. Karem in the press pen and observed firsthand what happened. Nor did you speak to Mr. Karem himself, despite his efforts to speak with you. In fact, you claimed you lack evidence that Mr. Karem made any attempt to speak with you. Enclosed with this letter are emails reflecting his efforts. You have also elected to ignore publicly-available evidence that Mr. Gorka has trumpeted his confrontation with Mr. Karem, bragging that he took on the "fake news industrial complex," as well as evidence that the President himself viewed the events as humorous. All of this information is highly relevant to your decision, yet you have deliberately chosen to ignore it. After suggesting that Gorka was the one who initiated and escalated the confrontation, while Karem was the one who sought to de-escalate it, Boutrous also notes the following: The President himself has used far stronger language and imagery. Among other things, he has tweeted an image of himself wrestling a CNN icon to the ground, and stated that a congressman who body-slammed a reporter is "my kind of guy." He has also urged his supporters to "knock the hell" out of protestors at his rallies, and remarked about one protestor, "I'd like to punch him in the face." If the President's statements cannot reasonably be understood as endorsing or inciting violence, the White House cannot possibly deem Mr. Karem's offer to "go outside and have a long talk" as over the line. None of this seemed to matter. In the official suspension notice, Grisham insists that Karem's comment to go outside and have a conversation was obviously a threatening statement. It seems likely that Karem will now sue and we'll get yet another court to weigh in on the process by which the President (any President, not just this one...) can remove press passes. Permalink | Comments | Email This Story

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Last week, we featured part one of our discussion with lawyer Joshua de Larios-Heiman, about the details of the FCC's Facebook settlement, beyond the headline-grabbing fine. It was a long conversation that we cut off right in the middle, so be sure to listen to part one first and then come back for part two, in which we finish picking apart the settlement item by item. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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As announced by the Copyright Office's General Counsel, the DOJ and the Copyright Office have now filed an amicus brief in the 9th Circuit in support of Led Zeppelin in its never ending legal dispute with the estate of Randy Wolfe (aka Randy California) over whether or not Led Zeppelin infringed on the copyright of the Spirit song "Taurus" with their classic "Stairway to Heaven." We've discussed this case at length over the years. If you were to just listen to the recordings of Taurus and Stairway to Heaven, you can definitely hear some similarities. Yet, as we noted, you can hear the same similarities in J.S. Bach's Bourree in E Minor, which I believe predates both of those other songs. This video also shows a bunch of other songs (most predating Taurus) that have the same basic melody. There were a lot of issues in the case, including the unfortunate fact that the original court did make some mistakes, even if the overall outcome -- that Led Zeppelin didn't infringe on the Taurus composition -- seemed like the appropriate outcome. The 9th Circuit in reopening the case, has a chance to fix the problems of the original. But it also has the chance to muck things up. The case is so strange that even the RIAA and the NMPA stepped in to warn against overprotection by copyright. Let me repeat that. The RIAA argued to a court that you could go too far in protecting copyright. Really. And here, the Copyright Office and the DOJ are on the right side again. The government's brief is focused on the more narrow issue of what the copyright at issue here actually covers. As we've discussed, for musical works prior to 1973, you could only get a copyright in the "composition" and not the recording. One of the arguments in this case is that Randy Wolfe's estate argued that the copyright of Taurus, registered in 1968, somehow did encompass the recording (and that said recording should be played at the trial), as opposed to just showing the sheet music of the composition that had been deposited with the Copyright Office. As we discussed in earlier posts, this is crazy, as the composition copyright and the recording copyright are two separate things, and there was no sound recording copyright in 1968... so you don't just get to pretend that the composition copyright magically covers the sound recording. Even more to the point: playing the recording can be completely misleading, because it would include non-copyright covered material, but a jury would be unlikely to be able to parse out which parts are covered by copyright and which were not. And -- perhaps surprisingly -- the Copyright Office and the DOJ agree. In fact, they note that the various performance elements are not covered by copyright, and when you remove them, what's left is fairly basic and not covered by copyright either: The copyright at issue here was obtained, as the Copyright Act then required, by depositing a “complete copy” of the work with the Copyright Office. The copyright that was created by that deposit extends only to the work that was deposited with the Copyright Office. While there may be other, related works in which the author or his successors may hold or have held rights, the federal copyright at issue here extends only to the work that was deposited. The district court and the panel thus properly concluded that “performance elements,” which might have been present when the song was performed or recorded but were not reflected in the deposited sheet music, are not protected by the copyright registered with the Copyright Office. Once those performance elements are removed, the only similarity between the original work and the allegedly infringing work is the selection and arrangement of two basic musical elements: an A-minor chord and a descending chromatic scale. Those elements may not themselves be copyrighted. The selection and arrangement of a small number of standard elements such as these is entitled, at most, to a “thin” copyright that protects only against virtually identical copying. Because the works at issue here are not virtually identical, the district court’s judgment should be affirmed. The brief here is quite readable, and more or less mocks the arguments of the plaintiff for not recognizing that the same song can have a variety of different copyrights: Plaintiff’s suggestion that the copyrighted work is something other than the work deposited with the Copyright Office appears to be largely premised on the mistaken view that there cannot be multiple, distinct copyrightable works that are all versions of the same song. The statute expressly contemplates that there can be. It is not often that I find myself on the same side of a case with the RIAA, Copyright Office and the DOJ. Especially regarding a copyright case. But here we are. There is still time for the 9th Circuit to mess things up even worse, though. They're good at that when it comes to copyright. Also, no one tell Donald Trump that his DOJ just supported a UK band over an American one. Permalink | Comments | Email This Story

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The "law and order" administration is flexing its muscles. New Attorney General William Barr has been particularly vocal since his appointment, going after device encryption and the supposedly-dangerous "disrespect" for police. Barr's public statements -- the latter of which was delivered to a very receptive audience composed of police union reps -- have made it clear his DOJ is going to carry out Trump's back-the-blue mandates. Law enforcement officers will receive the federal government's seal of endless approval, as well as its benefit of a doubt when things go badly. Things go badly quite often. Cops are still killing more than 1,000 people (and nearly 10,000 dogs) every year, even as crime rates remain at historic lows. Barr's message to America was: comply, shut up, stop complaining. If you do somehow still feel your rights have been violated, you're welcome to lawyer up and attempt to sue your way past layers of immunity and multiple, ultra-flexible warrant exceptions. But while this administration talks a good game about respect for law and order, it certainly doesn't show the respect it believes is owed to the nation's law enforcement officers. Marcy Wheeler points out this hypocrisy to devastating effect in her post dissecting (and recasting) Barr's pro-police, anti-everyone else rant. Barr wants the public to comply immediately and without question when interacting with government employees empowered to enforce the law. But that's something he's not interested in doing himself. Replace "police" with entities empowered to police the Executive branch -- as Wheeler does here -- and Barr starts looking like the Great Unwashed he's complaining about. (Wheeler's alterations to Barr's original speech are in bold.) The anti-oversight narrative is fanning disrespect for the law. In recent years, we have witnessed increasing toleration of the notion that it is somehow okay to resist oversight. Previously, it was well understood that, regardless of the circumstances, legal resistance is unacceptable because it necessarily leads to a spiral of escalating resistance that endangers the ability of Congress to oversee the Executive. For that reason, virtually all jurisdictions have made resistance a serious crime. Not too long ago influential public voices — whether in the media or among community and civic leaders — stressed the need to comply with oversight commands, even if one thinks they are unjust. “Comply first” and, if you think you have been wronged, “complain later.” But we don’t hear this much anymore. Instead, when an incident escalates due to a suspect’s legal resistance to oversight, that fact is usually ignored by the commentary. Congress’ every action is dissected, but the suspect’s resistance, and the danger it posed, frequently goes without mention. There's a bit more in Wheeler's post, so definitely click through and check it out. Or just grab almost any part of Barr's speech and play Executive branch mad libs with it. The end result is lengthy rant condemning people like William Barr for doing the things Barr is currently doing. Sad! Permalink | Comments | Email This Story

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The Ultimate Microsoft Excel Training Bundle has six courses designed to help you master Excel. You'll learn about Macros, VBA, Pivot Tables, advanced formulas, and more. You'll also learn about Excel's powerful data modeling and business tools Power Query, Power Pivot, and Data Analysis Expressions (DAX), and the when, why, and how to use each Excel Chart or Graph type. It's on sale for $34. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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We've talked in the past about how Section (f) of the DMCA Section 512 is more or less a dead letter. 512(f) is the part that is supposed to stop bogus DMCA takedowns, by saying that you can be liable for "misrepresentations" in takedowns. In practice, though, courts never seem to award anything for bogus takedowns, meaning that it's a "free" way to censor anyone you'd like. Or worse. Earlier this year, we covered how some had taken the DMCA abuse process so far that they were using bogus YouTube DMCA takedowns as part of an extortion scheme. Literally, people would contact popular YouTubers (often those who made videos about Minecraft) and threaten to DMCA their videos if they didn't receive payment. It appears that YouTube was actually paying attention, and it has now filed a 512(f) claim against at least one of the people doing this, a guy in Omaha, Nebraska named Christopher Brady -- who probably is not having the best week. You can read the complaint here. It's pretty straightforward: Defendant, Christopher L. Brady (“Brady), has repeatedly attempted to harass and extort money from YouTube content creators through bogus allegations of copyright infringement. This lawsuit seeks to hold him accountable for that misconduct, and for the damage he has caused to YouTube. In 1998, Congress enacted the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”), to provide a framework for addressing claims of online copyright infringement. In general, the DMCA immunizes online service providers from claims of copyright infringement based on materials uploaded to the services by users, if the services promptly remove allegedly infringing materials upon receipt of notices from copyright holders. Through these notices, the content of which is statutorily prescribed, copyright holders are able to secure the expeditious removal of allegedly infringing materials from online services without the need to prove a claim of infringement in court. Users that receive infringement notices they contend are incorrect may file a counter notification by providing their name, address, and telephone number, and consent to service of process by the complaining party. Congress also recognized that these “takedown notices” could be used maliciously to secure the removal of content that was not legitimately claimed to be infringing. Accordingly, it included a provision in the DMCA authorizing those aggrieved by fraudulent notices to bring an action against the sender for damages. This is such an action. The complaint lays out Brady's behavior in fairly great detail. Defendant Brady targeted the YouTube accounts of Kenzo and ObbyRaidz, among others, in an extortionate scheme. In January 2019, Defendant Brady, using several falsified identities, sent YouTube multiple notices of alleged copyright infringement pursuant to the DMCA, claiming that two videos uploaded by Kenzo and two videos uploaded by ObbyRaidz supposedly infringed copyrights that he owned. Defendant Brady’s notices of alleged infringement included the various representations required under the DMCA. Brady identified the specific locations of the videos posted by Kenzo and ObbyRaidz. He represented that he was the original creator of those videos, that he held the copyright to them, that the videos posted by Kenzo and ObbyRaidz infringed his copyrights, and that each of his notices was accurate. And he certified: “UNDER PENALTY OF PERJURY, I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.” Brady even included links to other copies of the videos in question as “proof” that he, rather than Kenzo and ObbyRaidz, had created them. Defendant Brady’s notices of alleged infringement were fraudulent. The videos posted by Kenzo and ObbyRaidz that Brady identified in his notices did not infringe any copyright supposedly owned by Brady. Brady knew that at the time he sent the notices. Brady also knew that did not hold the copyright to the videos he identified as his own in the notices. His certifications under penalty of perjury in the notices were knowingly false. Defendant Brady sent the notices of alleged infringement for the improper purpose of inducing YouTube to remove the identified videos and assess unwarranted copyright strikes on the Kenzo and ObbyRaidz accounts. The complaint goes on to note -- as we had in our article earlier this year -- the blackmail messages sent to the account creators, noting that once these were publicized, YouTube investigated the claims, removed the strikes on the user accounts and restored the videos. However, it appears that Brady decided to try again -- though this time it appears that it was as part of some larger fight, in which Brady was trying to expose a YouTube user's home address, likely for swatting (the user was swatted a few days later). It's interesting to see that part of YouTube's investigation of the matter apparently involved observing others' Twitter accounts: A review of Defendant Brady’s and Cxlvxn’s Twitter accounts from this time period suggests they were engaged in some sort of online dispute and it appears that Brady sent the notices of alleged infringement for the improper purpose of inducing Cxlvxn to submit a counter notification, thereby exposing his home address. Cxlvxn submitted a counter notification on July 4th, 2019. On July 10th, he announced via Twitter that he had been the victim of a swatting scheme that day. “Swatting” is the act of making a bogus call to emergency services in an attempt to bring about the dispatch of a large number of armed police officers to a particular address. Given the timing of (i) Defendant Brady’s online dispute with Cxlvxn, (ii) Brady’s false copyright claims against Cxlvxn; (iii) Brady’s receipt of Cxlvxn’s true home address via Cxlvxn’s counter-notification; and (iv) the reported swatting incident, it appears Brady used the personal information gained through his abuse of the DMCA process to engage in swatting. Given this, it's possible that Brady may soon be in a lot deeper shit than a 512(f) civil complaint. Law enforcement often can't go after swatters since they're hard to track down. But if YouTube has done the work for them... Either way, it's interesting to see YouTube trying to breathe some life back into 512(f). This case seems perfectly made for just such a thing. If this case can't get a 512(f) win, then no case can. For what it's worth, YouTube isn't asking for monetary damages, but for Brady to cover their legal fees (which I'm sure are substantial), as well as an injunction barring Brady from submitting more bogus DMCA notices. It's interesting to note that they're not even looking to bar him from YouTube entirely -- just from submitting bogus DMCA takedowns. While Brady may end up in deeper hot water over the swatting claims (should prosecutors suddenly take an interest in him over this), from a purely copyright standpoint, it would be nice to see 512(f) succeed in one case before we reach the heat death of the universe. Permalink | Comments | Email This Story

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