posted about 7 hours ago on techdirt
An new annual tradition in the halls of Congress is being celebrated with the introduction of legislation targeting PACER fees. Representative Doug Collins (R-GA) reintroduced the Electronic Court Records Reform Act as HR 1164 Wednesday with cosponsors Mike Quigley (D-IL), David Roe (R-TN), and Henry “Hank” C. Johnson, Jr. (D-GA). The full title of the bill is “To direct the Director of the Administrative Office of the United States Courts to consolidate the Case Management/Electronic Case Files system, and for other purposes.” The full text of the bill is not currently available, but it is expected to be substantially similar to HR 6714 from the second session of the 115th Congress last year. Last year's bill died after being referred to the House Judiciary Committee, most likely trampled underfoot by Congressional hearings and wall-related legislation. Either that or it's tough to get Congress members excited about eliminating fees they already don't have to pay. There have been no successful attempts to curb PACER fees, much less turn it into a free service. We know this because PACER still charges $0.10/page for documents and dockets as if it were an aged librarian keeping close tabs on the Xerox machine. It has been nearly 20 years since PACER opened its doors to the public. Since its inception, prices have increased, fee collections have steadily ticked upward, and almost none of that money is being spent trying to lower access costs or update the archaic system that punishes the public for expressing an interest in court proceedings. The only thing PACER has really done over the last twenty years is attract legislation and lawsuits. While it did create an online portal for court documents that can be accessed from anywhere in the world, that's about all it's done with the time and money the US court system has had at its disposal. It's not that this step wasn't important. It was a huge step forward. Since then, the PACER system has been characterized by its inertia. Maybe this will be the year Congress finally decides to take this issue seriously. At least one federal court has suggested PACER is misusing fees. Another judge has decided to allow a class action suit against the US Courts system to proceed, stating that these litigants suffer directly from the costs imposed by the government's walled garden. At the heart of all this is the First Amendment and the presumption of openness the US court system is supposed to adhere to. Instituting a paywall allows only some people to exercise their right to access public court documents. Whatever arguments might be made about having to offset the (very minimal) costs of maintaining this portal ignore the obvious side effects of limiting access only to those who can afford it. Permalink | Comments | Email This Story

Read More...
posted about 11 hours ago on techdirt
It's clear at this point that the automated filtering and flagging done by YouTube is simply not good. Whatever legitimacy the platform might want to have by touting its successes must certainly be diminished by the repeated cases of YouTube flagging videos for infringing content that isn't infringing and the fact that the whole setup has been successfully repurposed by blackmailers that hold accounts hostage through strikes. While most of these failures center around ContentID's inability to discern actual intellectual property infringement and its avenues for abuse, YouTube's algorithms can't even suss out more grave occurrences, such as child exploitation. This became apparent recently when multiple Pokemon streamers had their accounts nuked due to discussions about child pornography that never occurred. A trio of popular Pokemon YouTubers were among the accounts wrongly banned by Google over the weekend for being involved in “activity that sexualises minors”. As the BBC report, Mystic7, Trainer Tips and Marksman all found their accounts removed not long after uploading footage of themselves playing Pokemon GO. It’s believed the error occurred thanks to their video’s continued use of the term “CP”, which in Pokemon GO refers to “Combat Points”, but which YouTube’s algorithm assumed was “Child Pornography”. That's pretty stupid and it certainly seems like the reliance for a ban of an entire Google account based on the use of an acronym ought to have come with a review from an actual human being. That human would have immediately understood the context of the use of "CP" in a way the automated system apparently could not. And, to be clear, this wasn't a YouTube ban. It was the elimination of each streamers entire Google account, email and all. Now, once the backlash ensued, Google got them their accounts back, but that simply isn't good enough. As there is more and more pressure to ramp up automated policing of the internet, at some point, everyone pushing for those solutions needs to realize that the technology just isn't any good. Permalink | Comments | Email This Story

Read More...
posted about 13 hours ago on techdirt
For many years, we wrote about the infamous monkey selfie copyright situation (and lawsuit) not just because it was hellishly entertaining, but also because the legal questions underlying the issue were likely to become a lot more important. Specifically, while I don't think anyone is expecting a rush of monkey-authored works to enter the market any time soon, we certainly do expect that works created by computers will be all over the damn place in the very, very near future (and, uh, even the immediate past). Just recently, IBM displayed its "Project Debater" offering, doing an AI-powered realtime debate against a human on the "Intelligence Squared" debates program. A few days after that, the Guardian used OpenAI to write an article about itself, which the Guardian then published (it's embedded about halfway down the fuller article which is written by a real life human, Alex Hern). In both cases, the output is mostly coherent, with a few quirks. Here's a snippet that shows... both: This new, artificial intelligence approach could revolutionize machine learning by making it a far more effective tool to teach machines about the workings of the language. Deep-learning systems currently only have the ability to learn something specific; a particular sentence, set of words or even a word or phrase; or what certain types of input (for example, how words are written on a paper) cause certain behaviors on computer screens. GPT2 learns by absorbing words and sentences like food does at a restaurant, said DeepFakes’ lead researcher Chris Nicholson, and then the system has to take the text and analyze it to find more meaning and meaning by the next layer of training. Instead of learning about words by themselves, the system learns by understanding word combinations, a technique researchers can then apply to the system’s work to teach its own language. Almost... but not quite. Anyway, in the ensuing discussion about all this on Twitter, James Green asked the "simple" question of who is the "author" of the piece in question. The answer, summed up by Parker Higgins is: legally speaking: ¯\_(ツ)_/¯ there are a few proposed frameworks and a few theories of what happens if none of the proposals get taken up, but it will likely be settled in court — Parker Higgins (@xor) February 15, 2019 This is why I think the monkey selfie case was so important. In determining, quite clearly, that creative works need a human author, it suggests that works created by a computer are squarely in the public domain. And while this seems to lead some (mainly lawyers) to freak out. There's this unfortunate assumption that many people (especially lawyers) seem to make: that every creative work must be "owned" under copyright. There is no legal or rational basis for such an argument. We lived for many years in which it was fine that many works entered life and went straight into the public domain, and we shouldn't fear going back to such a world. This certainly isn't a new question. Pam Samuelson wrote a seminal paper on allocating ownership rights in computer-generated works all the way back in 1985 (go Pam!), but it's an issue that is going to be at the forefront of a number of copyright discussions over the next few years. If you think that various companies, publishers and the like are going to just let those works go into the public domain without a fight, you haven't been paying attention to the copyright wars of the past few decades. I fully expect that there will be a number of other legal fights, not unlike the monkey selfie case but around AI-generated works, coming in the very near future. Having the successful monkey case in the books is good to start with, as it establishes the (correct) baseline of requiring a human. However, I imagine that we'll see ever more creative attempts to get around that in the courts, and if that fails, a strong push to get Congress to amend the law to magically create copyrights for AI-generated works. Permalink | Comments | Email This Story

Read More...
posted about 15 hours ago on techdirt
Yesterday, we wrote about web developer Daniel Quinn's harrowing experience receiving a $20,000 payment demand from copyright troll Higbee & Associaties. That post ended with Quinn explaining how he found lawyer Carolyn Homer to represent him. Today, we have a companion post by Homer to talk about her experience investigating and dealing with Higbee, and calling out some of his questionable legal practices. The moment I saw Higbee’s demand letter to Daniel Quinn I knew I was dealing with a troll. Although I’ve recently joined the #resistance, I spent the first five years of my career defending Silicon Valley companies against mass copyright trolls. Higbee is new to me, but I know this game. I immediately scanned his demand letter for problems. There were many — Michael Grecco’s power of attorney authorization isn’t even signed! — but I’ll focus on three major ones. Major Defect # 1: Pricing Unmoored From Market Reality As Daniel quoted yesterday, Higbee’s November letter threatens litigation, statutory damages up to $150,000 and attorney fees. Supposedly to avoid this terror of litigation, Higbee demands payment of $20,000 within seven days, accompanied by a non-disclosure agreement. Daniel Quinn did not pay the $20K. So Higbee sent a December follow-up letter which escalates the demand: “[P]lease do not make the mistake of ignoring this. If this matter is litigated, the demand amount will likely quadruple or more, and then you will also likely have to pay attorneys fees.” Higbee’s message is clear: pay $20,000 now or risk litigation and $80,000—maybe even $150,000—later. None of those numbers make sense. The market rate for a license to publish most individual photos on the internet ranges between $0-$1000. Similarly in my experience, typical litigation damages for adjudged infringement of individual photos on the internet range between $200-$2000. At this exact moment in time, a photograph from Michael Grecco’s same X-Files photoset is available to license for $1800. And that is itself insanely high—there’s a multitude of other professional X-Files stills available from stock photo agencies Alamy and Getty for $49-$499. Higbee’s settlement demand price for a single Grecco photo is facially absurd. Major Defect # 2: Ineligibility for Statutory Damages Higbee’s utter divorce from market reality aside, the firm might have an arguable basis for demanding $20,000 if Grecco was eligible to recover statutory damages. Due to the insanity of copyright law, $150,000 is the maximum statutory recovery for willful infringement. See 17 U.S.C. § 504(c)(2). Numerous commentators and courts have rejected that top-line figure as insanely out of proportion to the actual damages caused from publication of a single photograph on the internet. Most thoughtful people consider the $200-$750 minimum statutory damages numbers to be more fair. Nevertheless, the max-$150,000 provision exists. But it was immediately apparent to me that Higbee and Grecco have no claim to either statutory damages or attorneys’ fees. Daniel Quinn posted his X-Files review on May 24, 2016. Higbee’s demand letter includes a Michael Grecco copyright application (not an issued registration) dated January 22, 2017. Absent an issued registration, Grecco is not eligible to even file a lawsuit. See 17 U.S.C. § 411(a). Moreover, the Grecco application discloses the X-Files image’s first publication date as October 25, 1993. The X-Files image was published 23 years prior to Quinn’s use on his personal blog—which itself occurred 8 months prior to Grecco even bothering to apply to register it. The Copyright Act does not permit recovery of statutory damages or attorneys’ fees for “any infringement of copyright commenced after first publication of the work and before the effective date of its registration.” 17 U.S.C. § 412. Higbee / Grecco is threatening a lawsuit seeking $80,000 dollars in statutory damages plus attorneys fees for dquinn.net’s use of an unregistered thumbnail image Quinn found on Flickr. It took me two minutes to line up the dates and realize statutory damages did not apply. Higbee couldn’t bother to expend the same two minutes of effort before his firm spent two months chasing Quinn with threatening emails, letters, and phone calls demanding tens of thousands of dollars? I wrote a letter to Higbee & Associates on January 18, 2019, detailing this and other problems with their demand. I called them out for demanding statutory damages and attorneys fees for which Michael Grecco is plainly ineligible. A couple days later I received a response from one of their copyright associates, Theodore Sell. His email read like he had rush-typed it with his thumbs on his iPhone while stuck in L.A. rush-hour traffic. Regarding statutory damages, Sell wrote: Contrary to your claims, our client may still claim both Statutory Damages and Attorneys Fees. The infringement continued past the registration of the copyright of the image, for at least eight months following the registration. Thus, as the courts employ the Discovery Rule in matters of Copyright Law, there was an infringement of the copyright following the registration for at least eight months and both Statutory Damages and Attorney’s Fees are applicable. I responded: I note you cited no authority for your off-the-cuff argument about the discovery rule and statutory damages. That is probably because it has been rejected by every circuit to consider it. See generally Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 701 (9th Cir. 2008) (collecting cases). Mr. Grecco is categorically not eligible for either statutory damages or attorneys' fees, and federal courts regularly dismiss claims legally identical to yours on that basis. See, e.g., McGucken v. Chive Media Grp., LLC, No. 18-CV-01612, 2018 WL 5880751, at *5 (C.D. Cal. Nov. 8, 2018). Theodore Sell wrote back with a paragraph that doesn’t make any grammatical or logical sense. As for my citation to Andrews, since the Supreme Court acknowledged that most circuits have applied the Discovery Rule, I find it hard to believe that it was "rejected by every circuit to consider it.” Nevertheless, I admit that I may have misapplied it in this matter; I apologize and will speak of Statutory Damages or Attorneys Fees no further. Our client’s offer to settle remains $20,000[.] The gall of those sentences irked me. Higbee & Associates just flat-out admitted they are entitled to neither statutory damages nor attorneys fees—and then demanded $20,000 anyway. Once again, for dquinn.net’s non-commercial, innocent use on a personal review blog of a thumbnail image which is the sibling of an image available to license right now for $1800. Major Defect # 3: Does Michael Grecco Even Own The X-Files Image Rights? The X-Files launched in 1993. Michael Grecco’s photos are from a 1993 promotional photo shoot. The X-Files series and trademarks are Twentieth Century Fox Film Corporation properties. By default, any “work made for hire” should be Fox property. 17 U.S.C. § 201(b). I would be shocked if Fox commissioned Michael Grecco to take promotional X-Files photos in 1993, but their lawyers failed to ensure that Fox owned the copyrights or exclusive rights. My suspicions have deepened through research. In poking around the Copyright Office’s public catalog, I discovered multiple Grecco / X-Files copyright registrations of photographs from the same publication day. This looks and feels odd. Grecco has registered seven separate sets of photographs from the same 1993 X-Files promotional photoshoot. Yet Grecco filed no registrations until 10 years later. The first four registrations expressly name “Fox.” The last two, both in 2017, omit the “Fox” name, but their Copyright Office records note “Transfer: by assignment.” Meanwhile, Fox itself registered oodles of X-Files publicity photos during the 1990s. For one 1998 piece of merchandise, an X-Files postcard book (Registration # VA0000937875), Fox identified itself as the “employer for hire” of Michael Grecco alongside other X-Files photographers. To this day, other online publications credit Fox for the same set of 1993 Grecco photos. Adding to my suspicions, in 2008 a federal court in New York indicated that Fox may own the rights. In that case, Michael Grecco sued the Everett Collection, an archive of historical publicity stills for Hollywood productions. Some of the images at issue were publicity stills from the “X-Files/Fox 4” collection listed above. The Court expressed skepticism that Grecco owned the rights at all: it noted that Grecco’s standard arrangement appeared to give all rights to Fox, except for a limited sublicense back to Grecco for his own personal portfolio and marketing. In short: “If Grecco had to ask Fox for consent [before Grecco used Grecco’s own photos], it implies that he granted Fox an exclusive license.” Michael Grecco Photography, Inc. v. Everett Collection, Inc., 589 F. Supp. 2d 375, 384 (S.D.N.Y. 2008). Even more suspicious? A reverse-Google-image-search revealed that Google has delisted links to the 1993 Michael Grecco X-Files photoset. Google did so in response to a DMCA takedown notice sent by Fox Group Legal on May 30, 2016. That’s one week after Quinn published his review. If Fox owned the exclusive rights as of that week, they should be the ones contesting Quinn’s potential infringement. See 17 U.S.C. § 501(b). I have so many questions. What does Fox’s contractual paperwork with Michael Grecco say? Did Fox own the rights to Higbee’s challenged X-Files image in May 2016? If so, then Fox should have been the one complaining both about the X-Files image’s presence on both Flickr, where Daniel Quinn found the image designated as “creative commons,” and on dquinn.net. Maybe Fox doesn’t care? 1993 promotional stills are likely near-worthless. I can imagine a corporation making the business decision to let the images percolate as free internet marketing and meme material more than 20 years after the X-Files series premier. What led Grecco to submit two belated registrations in 2017? Is it possible Grecco submitted registrations for near-identical photos to ones Fox still owns, in order to confuse the public, send threats, and generate revenue? Or at some point, did Grecco buy the copyrights back from Fox? Is it possible the images were in the creative commons, and Grecco / Higbee clawed them back just to flood the internet with exorbitant demands? I’ve ordered the complete “Grecco / X-Files 5” electronic file from the U.S. Copyright Office to try and unpack this mystery. I’ve also reached out to copyright counsel for Fox, but so far I haven’t heard back. As for Higbee & Associates? I’ve now asked them, four separate times, for the following information: A copy of the final, issued copyright registration for the X-Files Image, and not just the application. A copy of the deposit materials for that registration, in order to confirm the X-Files Image is encompassed within it. A chain-of-title history of any transfer or licensing agreements surrounding the X-Files Image, particularly with respect to who held any exclusive rights throughout 2016. A copy of any DMCA notice(s) sent on behalf of Mr. Grecco to Flickr regarding the X-Files Image, between 2016-2018. They’ve refused to answer my questions, responding only that “[we] will not be conducting the pre-litigation discovery you want.” There’s only so much our ongoing investigation can accomplish short of litigation, discovery, and the power to issue third-party subpoenas to Fox and Yahoo/Flickr. But at the moment, based only on the information I have, I’m severely concerned that Higbee & Associates is failing to exercise due diligence and conduct reasonable investigations before issuing its boilerplate demand letters. Theodore Sell’s belated admission that they cannot seek statutory damages and attorneys fees supports their lack of diligence; so does Mathew Higbee’s contention last Thursday that “We never intentionally pursue private non-commercial infringements.” Daniel Quinn runs a private, non-commercial, hobbyist scifi review blog; Higbee & Associates has been chasing him with threats of litigation and demands for $20,000 - $80,000 in damages and attorneys fees for months. I thus echo Paul Levy’s warning: Higbee & Associates appears to be threatening claims unwarranted by either the facts or the law. This is copyright trolling. Permalink | Comments | Email This Story

Read More...
posted about 16 hours ago on techdirt
Great news on the asset forfeiture front, courtesy of the highest court in the land. The Supreme Court has ruled that forfeitures can violate the Eighth Amendment's protections against excessive fines. The case the Supreme Court ruled on deals with Indiana native Tyson Timbs. Timbs sold $260 worth of heroin to undercover officers. He pled guilty to criminal charges. The state decided to forfeit his $42,000 Land Rover via civil asset forfeiture, routing around the criminal system to make it easier for cops to make off with his vehicle. Timbs challenged this forfeiture as an excessive fine, given that the max fine for his criminal charges was $10,000. This case made its way to the state's Supreme Court, which overturned the lower court's decision finding in favor of Timbs and the US Constitution, which Indiana had incorporated. The state's highest court stated that this clause of the Eighth Amendment did not apply to civil asset forfeiture. This was a bizarre position to take, as the Supreme Court pointed out during oral arguments. JUSTICE GORSUCH: Well, whatever the Excessive Fine Clause guarantees, we can argue, again, about its scope and in rem and in personam, but whatever it, in fact, is, it applies against the states, right? MR. FISHER: Well, again, that depends. JUSTICE GORSUCH: I mean, most -- most of the incorporation cases took place in like the 1940s. MR. FISHER: Right. JUSTICE GORSUCH: And here we are in 2018 -­ MR. FISHER: Right. JUSTICE GORSUCH: -- still litigating incorporation of the Bill of Rights. Really? Come on, General. The Supreme Court's decision [PDF] makes it clear the US Constitution protects citizens from excessive fines, even if those fines are meted out at the state level. If the Constitution has been incorporated by the states (and it has!), the protections apply. Held: The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause. Pp. 2–9. (a) The Fourteenth Amendment’s Due Process Clause incorporates and renders applicable to the States Bill of Rights protections “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (alterations omitted). If a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires. The state tried to argue the protections only covered in personam (vs. a person) forfeiture -- the kind normally seen in criminal cases where property is seized as compensation for fines or as direct, provable ill-gotten goods obtained as the result of criminal activity. In rem forfeiture -- the civil route -- lowers the evidentiary bar law enforcement must meet to take property away from citizens. In most cases, there are no criminal charges involved -- only accusations of criminal origin that force citizens to prove a negative to reclaim their seized property. Here's where this decision has the chance to disrupt a majority of states' civil asset forfeiture programs: the Supreme Court says these incorporated protections also apply to in rem seizures. As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated. For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” Id., at ___ (slip op., at 1). We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted. See also, e.g., Riley v. California, 573 U. S. 373 (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged. So, the rhetorical question posed by this decision is one that's going to be asked of hundreds of state-level civil asset forfeiture programs: if there are no criminal charges, wouldn't ANY seizure of property be "excessive?" It certainly appears a lack of criminal charges would be fatal to in rem seizures, which almost always happen without accompanying charges. This case may not have been specifically about civil asset forfeiture, given Tyson Timbs' guilty plea, but the state made it about it by refusing to acknowledge its incorporation of the Bill of Rights. This may start a scramble by law enforcement to suss out just how much of the Bill of Rights their particular state has incorporated. Given the Supreme Court's disdain for arguments to the contrary, pushing legal challenges to forfeiture programs uphill is a non-starter. This case was a 9-0 rout in favor of protecting Americans from excessive fines and fees -- in this case taking the form of civil asset forfeiture. This hopefully will be the starting point for nationwide reform of these abusive programs. Permalink | Comments | Email This Story

Read More...
posted about 16 hours ago on techdirt
Between our smartphones, tablets, smartwatches, and the like, we tote around a wide variety of gadgets on the daily. And, keeping them all energized is next to impossible, unless you're willing to lug a tangled mass of chargers wherever you go. Enter SCOUT Portable Charger. Sporting a built-in wall charger, built-in cables, quick-charging USB port, and intelligent charging technology, SCOUT is hands-down a good way to juice up your entire tech collection. It even supports Qi-compatible devices. Choose either the 5,000mAH or the 10,000mAh, and both are only $40. 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

Read More...
posted about 16 hours ago on techdirt
The votes are in, and it's time to announce the winners of the Gaming Like It's 1923 game jam! At the beginning of January, we decided to celebrate the long-awaited entry of new works into the public domain with a game jam, inviting designers to submit games of all kinds based on newly-copyright-free works from 1923. We got way more entries than we expected, and handed them off to our huge judging panel of game designers and copyright experts, who left comments and nominated them in our six prize categories. Now we've tallied up the votes and reviews, so without further delay, here are the winners of Gaming Like It's 1923: Best Analog Game — Permanence by Jackson Tegu This award goes to the best overall non-computer game, with a clear consensus emerging from the judge's review scores. Permanence is perplexing at first glance, and requires some serious prep work, but sometimes that's the cost of a game this unique and creative. Using the format of a book that can be read in two directions, it weaves the painting Metempsychosis by Yokoyama Taikan and poetry from the book The Prophet by Kahlil Gibran into an artistic gaming experience that isn't quite like anything you've seen before. Best Digital Game — Stopping by Woods on a Snowy Evening to Steal Treasure by Alex Blechman The award for best digital game goes to this short, sweet, simple, and above all entertaining take on Robert Frost's famous poem. Stopping by Woods on a Snowy Evening to Steal Treasure tasks you with jazzing up the verse by subbing in some new material to entertain a modern gaming audience. Give it a try, or two or three... Best Adaptation — God of Vengeance by jrgoldb This award goes to the game that most faithfully and meaningfully adapted its source material, carrying its original intent forth into a new medium. God of Vengeance, based on the 1923 Yiddish language play of the same name, is an analog storytelling game that puts players in the main roles from the play and provides an interesting mechanical framework for improvising scenes and exploring the themes of a work they might otherwise have never encountered. Best Remix — Will You Do The Fandango? by Lari Assmuth This award goes to the game that made the best combined use of multiple public domain works. Will You Do The Fandango? starts with the 1923 film Scaramouche, but then draws on the whole world of Commedia dell'Arte and the mechanics from games like Apocalypse World and Lady Blackbird. The result is a high-energy tabletop roleplaying game, complete with dice and stats, in which a troupe of traveling players tour revolutionary France engaging in bombastic drama and romance — with printable masquerade masks to boot! Best Deep Cut — Not a Fish by J. Walton This award is for the best use of an obscure or unexpected source that doesn't appear on the typical roundup lists of works entering the public domain, and the cuts don't get much deeper than Not a Fish: a game based on a pair of 1923 science journal articles about Amphioxus fisheries in China. Like the jigsaw puzzles that inspired the mechanics, the game starts out seeming jumbled, but it quickly starts to resolve into an exploration of social and political themes you might not be expecting from the subject matter. Best Visuals (Tie!) — Chimneys and Tulips by litrouke, and The Garden of God by DreadRoach There wasn't a single stand-out winner for the best visuals category, and understandably so — one month is scarcely enough time to create or assemble a game's worth of stunning graphics. Instead, the award for best visuals goes to two browser-based submissions which, while they have their limitations, certainly caught our eye. Chimneys and Tulips is a creative arrangement of four poems by E. E. Cummings, with a focus on beautiful minimalist design. Though the gameplay is somewhat lacking, a lot of work and vision went into the colorful style in which the works are presented, and while the interactive elements may be simple, they aren't arbitrary. Fans of poetry, and of typography, will find plenty to explore. The Garden of God is a short narrative experience based on the novel of the same name by H. De Vere Stacpoole. It's built in RPG Maker MV, and most of the visuals are stock sprites and graphics from that tool — but a lot of thought and effort went into how they were used. The game has multiple unique settings and maps, and well-choreographed scripted scenes with attention to background detail. All the winners in all categories will receive their choice of a copy of our public domain card game CIA: Collect It All, or one of our copyright-themed t-shirts from Teespring. We'll be reaching out to all the winners on their games' Itch pages, so if you see your game listed here, keep an eye on your incoming comments! Thanks again to everyone who submitted a game — there are lots of entries worth checking out in addition to the winners. And thanks again to our panel of judges: Whitney “Strix” BeltránNicky CaseEric GoldmanCharlie HallCarolyn HomerDaphne KellerAlbert KongJ LiMark LemleyRandy LubinMike MasnickJason MorningstarRebecca TushnetApril Kit Walsh We'll likely be back with another game next year when, if all goes according to plan, the public domain will continue to grow! Permalink | Comments | Email This Story

Read More...
posted about 17 hours ago on techdirt
In an article for Quillette titled, “It Isn’t Your Imagination: Twitter Treats Conservatives More Harshly Than Liberals,” Columbia University research fellow Richard Hanania offers us proof–once and for all–that social media companies are biased against conservatives. Either that, or it’s the latest in a growing list of bogus, exaggerated or otherwise dubious anti-conservative bias claims (I’ll let you judge for yourself). “Until now, conservatives have had to rely on anecdotes to make their case,“ Hanania writes. Adding that, “[m]y results make it difficult to take [social media platforms’] claims of political neutrality seriously.” The data he collected (with the help two research assistants, no less) looks at “prominent, politically active” people suspended from Twitter since the company’s launch in 2006. Accounts included in the data set were selected from individuals and organizations whose suspension was covered in a “mainstream” news outlet, and who expressed a preference for either Donald Trump or Hillary Clinton in the 2016 presidential election. Out of 22 (!!!) accounts in the data set that met these criteria, 21 (or 95%) were Trump supporters. Despite the small sample size, the author argues this is compelling evidence for Twitter’s anti-conservative bias. Even if conservatives are more likely to break Twitter’s rules, he argues, it “doesn’t seem credible” the disparity would be so wide. But let’s look a little more closely at this. These are the 22 accounts make up the data set: Rose McGowan (the list’s lone Clinton supporter) Azealia Banks Tila Tequila James O'Keefe Richard Spencer Baked Alaska Roger Stone Gavin McInnes Candace Owens Alex Jones Chuck Johnson Robert Stacy McCain Milo Yiannopoulos Radix Journal National Policy Institute Craig R. Brittain David Duke American Nazi Party James Allsup American Renaissance Jared Taylor Laura Loomer Scanning the list, you probably noticed the “American Nazi Party.” This is not an anomaly. The bulk of the list is a who’s who of outspoken or accused white nationalists, neo-Confederates, holocaust deniers, conspiracy peddlers, professional trolls, and other alt-right or fringe personalities (go ahead, pick a couple and Google them). It does not include any mainstream conservatives, unless, I suppose, you count recently-indicted Trump campaign advisor and “dirty trickster” Roger Stone. Reasons listed for banning these individuals in Hanania’s own data sheet include “violent threats,” “harassment,” “inciting violence,” “targeted abuse,” “doxxing,” “pro-Nazi tweets,” and “racist slurs.” Additionally, about a quarter of the accounts listed are still active and no longer suspended. Kicking off a bunch of Nazis and trolls isn’t very compelling evidence that your average conservative is getting unfair treatment on Twitter. The majority of the “victims” here seem to have been engaged in abuse, and it’s reasonable for a private company like Twitter to kick off people who are undermining the quality of their platform by harassing or threatening other users. Considering the alt-right’s propensity to scream and yell about getting “deplatformed,” these 22 accounts probably aren’t that representative of Twitter’s 67 million U.S. monthly active users. Nor does their small number (despite the author having two research assistants) indicate a broad, systemic problem. Of course, social media companies may be not be perfectly neutral when it comes to politics. The Bay Area, where many of these companies are based, is a very liberal place. In 2016, only 9.4% of San Francisco County voted for Donald Trump. It’s entirely plausible that this disposition affects their products and policies in subtle ways. Yet, to date there has not been compelling evidence of systemic bias or a grand conspiracy to silence conservatives (despite this becoming a standard trope in congressional hearings and conservative conferences). But social media platforms aren’t bastions of free speech, either. Their evolving norms and policies around content moderation raise a host of concerns and issues. At minimum, platforms could do a lot better at being transparent in their enforcement and governance decisions. For conservatives, as I’ve argued before, crying wolf about censorship is a self-defeating strategy that will only make people not listen when it actually happens. Nazis, while sometimes useful in edge cases around free speech or references to Godwin’s law, are not stand ins for the median conservative American. Targeted abuse or incitements to violence are also not the same thing as free speech. Let’s not get these things mixed up. Permalink | Comments | Email This Story

Read More...
posted about 20 hours ago on techdirt
As several Attorneys General and the FBI investigate who was behind the fake net neutrality comments that plagued the FCC website during the late 2017 repeal, reporters like Jason Prechtel and Gizmodo's Dell Cameron continue to slowly and methodically connect the dots. Last month, Cameron obtained leaked investigation data linking many of the bogus comments to several Trumpland-linked astroturfing and policy operations like "Free Our Internet," a bogus consumer-rights group specifically built by ex-Trump campaign staffer Christie-Lee McNally. And this week, both Prechtel and Cameron leaned on FOIA data to discover that another sizeable chunk of the bogus comments appear to allegedly have been at least partially driven by both CQ Roll Call, a DC-based news and policy organization, and Center for Individual Freedom (CFIF), a "dark money" influence group with historical ties to defending tobacco companies: "Founded in 1998, CFIF is a reportedly a dark-money group whose early roots lie in defending Big Tobacco, but which supported the repeal of net neutrality more recently and has campaigned aggressively against state laws requiring political groups like itself to disclose the sources of its funding. Along with CQ, the group is among the 14 entities subpoenaed by the New York attorney general last fall, as first reported by former BuzzFeed reporter Kevin Collier in October. As late as last February, CFIF President Jeffrey Mazzella praised the FCC’s rollback of the Title II classification of broadband service underlying net neutrality in the Daily Caller, labeling the policy an “unprecedented power grab by the Obama administration,” which, he claimed, upended “two decades of bipartisan consensus for light-touch regulation of the internet sector." You might recall that many of these efforts during the net neutrality involved hijacking the names of both dead and living people (like myself), and using them to post comments in support of the FCC's plan via the agency's website open comment period. Most of these folks (obviously in the case of deceased) never even visited the FCC website, much less posted bogus comments in support of a telecom-industry-favored policy. In one instance, a bot was used to pluck names from a hacked database of some kind, posting their breathless support of killing net neutrality in perfect alphabetical order. In short, several groups were created by DC policy shops to generate the illusion of public support for a net neutrality repeal poll after poll shows was strongly opposed by a bipartisan majority of Americans. Especially since repealing those rules opened the door to ISPs using their network power to erect additional anti-competitive barriers for video competitors, driving up costs for everybody in the internet ecosystem. Of course none of this stuff is new. Telecom and other sector companies have spent decades creating entirely bogus consumer groups to prop up bad policy. And when telecom operators aren't busy having DC policy shops create fake groups, they can often be found co-opting existing groups; promising cash infusions in exchange for quid-pro-quo support for company policy positions. Meanwhile, countless government agency proceedings have been plagued by similar issues, suggesting this sort of stuff is a pretty common option on the menu of many K Street lobbying and policy shops. The goal is always the same: create the illusion of broad support for tech policy that consumers strongly oppose, usually with very good reason. While that itself isn't illegal (whether it should be is a good conversation to have), identity fraud clearly is. Of course identifying the dubious constructs acting as intermediaries is one thing. Connecting those constructs to entrenched broadband providers like AT&T, Verizon, and Comcast is something else entirely. Telecom operators historically leave layers upon layers of deniability between themselves and such groups, and aren't usually dumb enough to put much of this work in writing. As such, whether the NY AG, FBI, and other investigators are able to document a real money trail to the obvious beneficiaries of these shenanigans will be interesting to watch. Regardless of the outcome, there are more than a few DC policy outfits that aren't sleeping quite as well as they were this time two years ago. Permalink | Comments | Email This Story

Read More...
posted about 23 hours ago on techdirt
Promoters of the EU destructive copyright directive keep pushing the bogus line that it is necessary to give money to "artists and journalists." Take, for example, MEP Axel Voss (the EU Parliament member in charge of all of this nonsense) and his press release touting the final text: Internet platforms face incentives to pay for artists and journalists’ work used Except, actual journalists in the EU are realizing exactly what many of us have been talking about for months: nothing in the Directive will lead to more money for journalists. Instead, at best, it might lead to more money for publishers (though, even that is suspect, given the utter failure of similar plans already in place in Spain and Germany). While Voss's announcement claims that "Journalists must get a share of any copyright-related revenue obtained by their publishing house," journalists are pointing out that the opposite is actually true. The International Federation of Journalists, along with the European Federations of Journalists put out a statement noting that Article 11 "makes a mockery" of their rights and will only serve to help publishers strip the journalists of their own rights: While the directive acknowledges an obligation for journalists and all authors of the works incorporated in a press publication to receive an "appropriate share" of the revenues press publishers receive for the use of their publications online, it enables publishers to avoid such requirements by relying on existing "contractual arrangements" and "laws on ownership". Such moves could deny journalists any revenue arising from the re-use of their work online. These discriminatory provisions and proposals contained in Article 11 and Recital 35 of the text dash any hopes that the Directive would support authors in the press sector in obtaining fair and proportionate remuneration for their work under this law or in future national legislation.  Instead they boost the system whereby powerful publishers force employed journalists and freelancers alike to sign contracts giving up all their rights – thereby offering them a proportionate or appropriate share of nothing In short, the final text pays lip service to the idea that publishers should pass on money to journalists, but also provides a massive loophole in that all the publishers need to do is write this requirement out of any contract and not have to worry about it. It appears that this kind of tactic is found throughout Articles 11 and 13. The text says you don't have to use filters, but provides no workable alternative. The text says that memes are allowed, but never explains how a site can comply with the law without blocking all memes. The text of the directive basically pays lip service to all the complaints and obvious consequences, but rather than deal with the consequences, it just says "and don't let those consequences happen." This is no way to make policy. Permalink | Comments | Email This Story

Read More...
posted 1 day ago on techdirt
Recently, we discussed a proposed change to Japanese copyright law that would make literally all downloading of copyrighted material a criminal matter, rather than a civil one. This change would be fairly bonkers for an entire host of reasons. It has the potential to clog up the criminal courts with the same kind of minor copyright infringement cases that clog up America's civil courts. It would put a decisive chill on the sharing culture that brought the internet to its current state to begin with. And it would further the culture of ownership and protectionism already far too common across the globe. And, as states an "emergency statement" issued by nearly a hundred Japanese academics, it would possibly criminalize the kind of personal copying that facilitates research, education, and personal growth. In an ‘Emergency Statement’ signed by 87 academics, researchers, lawyers, and other experts, the government is urged to think again about the scope of the proposed legislation. Under the current proposals, the group believes that private copying could be rendered illegal, even to the extent of outlawing screenshots for private use. “We believe that the limitation on the right of reproduction for private use purposes has the function of restricting the freedom of information gathering in the private domain. It is a legal foundation that supports the intellectual and cultural activities of individuals, and even Japanese industry,” the signatories write. The group believes that the proposed legislation has been rushed through in a very short time (five meetings in three months), without carefully considering the consequences. They want the authorities to think again, to protect the public interest. It's as timid a statement as could be offered. And it's one that essentially amounts to, "Whoa, guys, take a breath, because you don't know what you're about to do." Given the timeline on which this has occurred, it's a wholly reasonable request as well, given the enormous stake the public has and its nearly complete lack of a seat at the legislative table. The chill on both expression and research that this cluster-bomb law would have can't really be overstated, as the kind of personal copying that it would seek to criminalize has become essential to both. And, to be clear, these academics aren't exactly against enforcing copyright laws generally, either. Importantly, those calling for the proposals to be considered more closely appear to be broadly in favor of tightening up the law to protect rightsholders. However, there are serious concerns over the potential for collateral damage when even snippets of text could be criminalized. To that end, they suggest amendments to the proposals to mandate that it’s only a crime to reproduce copyright works when the act causes real financial damage to content owners, in the case of those who pirate whole movies, music, manga publications, books, and so on. If you're looking for a silver lining in all of this, perhaps one can be found in this being a perfect litmus test for how government that bows to moneyed interests will react to the most modest of requests against those interests. In other words, the academics in this case are essentially asking that the law eventually do only 90% of what it originally aimed to do. If the Japanese government can't be bothered to take even that request seriously, then perhaps the public should give up on it entirely. Permalink | Comments | Email This Story

Read More...
posted 1 day ago on techdirt
Google this week found itself in luke warm water after Nest Secure users discovered that their home security system contained a "hidden" microphone the company had never publicly disclosed. The reveal came via a Google announcement sent to Nest customers earlier this month, informing them that their Nest Secure base stations (the motion detector and keypad at the heart of the system) would soon be updated to include Google Assistant functionality, essentially converting the hardware into another way to issue voice commands around the home: "Starting today, we’re adding a feature to Nest Secure to do just that: the Google Assistant will be available on your Nest Guard, so you can ask it questions like, “Hey Google, do I need an umbrella today?” before you set your alarm and leave the house. Nest Guard is the brains of your Nest Secure; it contains a keypad and all the smarts that power the system. It’s usually placed in a spot with lots of traffic (like the front doorway) making it useful as you come and go." On its face, this is certainly a welcome upgrade. Especially given the fact that we live in an era where the opposite often occurs, and companies have a habit of removing basic product functionality post sale, leaving you with less of a product, or in a few select instances no product at all. As such, that the Nest keypad for a home alarm system actually was upgraded to do more than users original thought is a good thing, at least superficially. The problem: more privacy-conscious Nest owners weren't aware that the Nest home security base stations had a microphone in the first place, raising questions about whether Google was using the microphone for data collection and monetization in some capacity. Given the fact that we can't go more than twenty minutes before another major privacy scandal breaks, and the general regulatory and government response to most of these scandals has been a collective ¯\_(ツ)_/¯, the concerns are understandable. If @Google's @Nest Secure devices really had secret microphones that they hid from consumers, those consumers should probably be forgiven if they don't trust the company's after-the-fact promises that it never spied on them. #DontBeEvil https://t.co/sZsFC31zdV via @csoonline — Tom Zeller Jr. (@tomzellerjr) February 20, 2019 Unlike some of its modern contemporaries, Google at least acknowledged that the company should have done a better job disclosing the microphone's existence simply by including it in the product hardware specs: "On Tuesday, a Google representative told Business Insider the company had made an "error." "The on-device microphone was never intended to be a secret and should have been listed in the tech specs," the person said. "That was an error on our part." And it does look like the company was also quick to update its product specs to make it clear the microphone exists moving forward. Still, Google should have been clearer from the start, and many went so far as to insist Google was lying to its customers: This is not “messing up.” This is deliberately misleading and lying to your customers about your product. https://t.co/FZcf55L1bU — Eva (@evacide) February 21, 2019 I would probably note that if privacy is your top concern, a company like Google with a long history of hoovering up personal information probably shouldn't be your top home security choice in the first place. And there's a litany of other products in the home that deserve the same level of scrutiny. Americans are connecting poorly secured crap to their home networks at an alarming rate, from televisions (with microphones) that have paper mache grade security, to Barbie dolls that can be easily hacked and converted into covert listening devices. While Google did the right thing here by coming clear, this episode also does a nice job illustrating the fact that whether we're talking about products getting better or worse, you don't really own the products you buy, and your agreement with the manufacturer in the firmware-update era can pivot on a dime, often with far less disclosure than we saw here, or none whatsoever. Permalink | Comments | Email This Story

Read More...
posted 1 day ago on techdirt
Tech companies are becoming far more than useful repositories of third party records. They're becoming far more active in terms of surveillance, pivoting from platform providers to private sector Big Brothers, weaponizing their data collection capabilities to keep tabs on customers and users. Facebook has decided to start scanning its platform for threats. Not threats against the many nations it serves or threats targeting other users, but rather threats against Facebook itself. One of the tools Facebook uses to monitor threats is a "be on lookout" or "BOLO" list, which is updated approximately once a week. The list was created in 2008, an early employee in Facebook's physical security group told CNBC. It now contains hundreds of people, according to four former Facebook security employees who have left the company since 2016. Facebook notifies its security professionals anytime a new person is added to the BOLO list, sending out a report that includes information about the person, such as their name, photo, their general location and a short description of why they were added. [...] Users who publicly threaten the company, its offices or employees — including posting threatening comments in response to posts from executives like CEO Mark Zuckerberg and COO Sheryl Sandberg — are often added to the list. These users are typically described as making "improper communication" or "threatening communication," according to former employees. It's not that Facebook shouldn't be on the lookout for credible threats. It's that it's turned its platform into a surveillance tool for its in-house knockoff law enforcement agency. It's not clear whether the company is turning over its internal BOLO list to actual law enforcement, but if it is, that raises even more concerns. Certainly the company should be concerned about legitimate threats. But the company is flagging people simply for expressing their displeasure with Facebook in general. While some users end up on the list after repeated appearances on company property or long email threats, others might find themselves on the BOLO list for saying something as simple as "F--- you, Mark," "F--- Facebook" or "I'm gonna go kick your a--," according to a former employee who worked with the executive protection team. This undercuts Facebook's official statements about "rigorous reviews" of detected threats. So does the claim made by former employees that fired employees are automatically added to the BOLO list, despite nearly 100% of fired employees from all vocations posing no threat to their former employers. And it goes further than simply flagging people (and, apparently, displaying their photos on monitors in the threat detection center). Facebook also tracks listed individuals using their smartphones, thanks to permissions granted to the Facebook app. The app comes pre-installed on most smartphones and most users are unaware how much data Facebook is gathering even when the app isn't in use. Presumably, if some "F--- you, Mark" person gets too close to the Facebook campus, actual law enforcement is alerted. This sort of situation can only lead to positive outcomes. A person mildly displeased with Facebook's endless fuckery will be greeted by armed officers under the impression a credible threat has been made against the company. Good times. More good times await. Facebook is also promising to "help" the suicidal by sending the cops after them. Since 2011, Facebook has allowed users to flag potential suicidal content; reports prompted emails from Facebook urging the poster to call the National Suicide Prevention Lifeline. But starting in 2017, Facebook introduced bots to search out and report potential suicidal content. The bots report suspected cries for help to human moderators, who may then "work with first responders, such as police departments to send help," says CNN. That's right: Facebook might call the cops on you because a bot thought you seemed sad. Facebook executives think that if a user exhibits signs of depression, it's up to Facebook—not the user's friends, family, or community—to intervene. Rather than trying to track down friends or family, Facebook is turning this over to "first responders." In most cases, the first responder on the scene is going to be the local PD. Given how often police officers have helped talk people out of suicide by killing them, this effort by Facebook is going to result in more dead suicidal people than simply doing nothing. I'm not saying Facebook should do nothing about threats against the company or to aid people with suicidal thoughts. But these efforts aren't going to make anything better and they're a misuse of Facebook's vast data collections and moderation efforts. There's an abuse of trust happening here and Facebook's efforts are so scattershot and half-assed they're going to cause a lot of collateral damage. Permalink | Comments | Email This Story

Read More...
posted 1 day ago on techdirt
Last week we wrote about the questionable practices of copyright troll Mathew Higbee, based on thorough research from lawyer Paul Levy. As we noted in the post, we've heard from a few recipients of Higbee's questionable letters, and one has agreed to share his experience. This will be a two part series, with the first part, below, written by the recipient of the threat, web developer Daniel Quinn, and tomorrow, more information from the perspective of his lawyer, Carolyn Homer. Hi. My name's Daniel Quinn. Off the bat, there's a few things you should know about me: I'm a self-taught web designer. I have a background in English literature, creative writing, and publishing. I'm a huge scifi nerd. I probably value those three things from most important to least important in reverse order. One of my favorite fandoms of all time is The X-Files. As a kid, I wanted to grow up to be as dreamy and mysterious as Fox Mulder himself. Of course I now have a lifelong affection for conspiracy theories, cerebral redheads, and aliens. I just finished writing a science fiction novel that features all three elements. Back when dial-up modems were a thing, I loved The X-Files so much I used to list my physical address on social media as Fox Mulder's fictional apartment in The X-Files: 2360 Hegal Place Apt #42 in Alexandria, VA 23242. To this day, my physical address on Facebook is listed as Mulder’s address—something I do intentionally to confuse Facebook’s greedy algorithm. (This will all become relevant later.) I never expected that the show which brought me so much happiness in my youth would become responsible for grief and terror at age thirty-four. In 2016, Fox released The X-Files season 10 and broke my heart with its retconning of the series' central mystery. I wrote a fraught review about it on my personal blog, as I am wont to do whenever a fandom lets me down. Writing stuffy, literary critiques of pop culture on my blog, usually about science fiction movies or TV shows (e.g., “A Feminist Reading of Grindhouse” or “Mr. Robot is Cyberpunk for the Masses”), is about the only hobby I have time for outside of freelancing. In both my web design work and scifi review-writing hobby, I'm rather meticulous about my IP research. I always source photography that accompanies my articles via Creative Commons-licensed or license-free photography on Flickr. I even check the “commercial use allowed” option just to be safe. That’s thanks to interesting coursework on intellectual property I took during my Masters in Writing & Publishing from Emerson College. There I learned about the copyleft movement. Larry Lessig is someone I admire. In fact, all of my website’s original content, including my blog posts, are licensed Creative Commons because I believe in its mission. As a web developer I work frequently with open source software. My very own WordPress boilerplate—for which my livelihood depends on as a web developer—is licensed open source. This is all to say I'm not some lazy pirate who copy-pastes from Google Image Search to source photography. As a creative, I care about copyright. And as a freelance web designer, I'm managing intellectual rights all the time, whether it's by signing over the copyright to websites that I create as a work-for-hire contractor, or by selecting stock assets for my clients to buy, be that photography or software. This winter I got a phone call out of the blue from one “Tuesday Maudlin” at the law firm Higbee & Associates claiming I was infringing on the copyright of a photographer Michael Grecco. I was more mortified than I was scared. How could that even be possible, given that I've been so careful to attribute everything I use? The photo in question was a thumbnail on my X-Files Season 10 review, a picture of Mulder and Scully I'd found listed as “Creative Commons” on Flickr over two years ago. Over the phone, I explained to Tuesday how I source photos, and asked her whether this image had been mistakenly uploaded or mislabeled. Tuesday said her client doesn’t provide Creative Commons licenses. While I had her on the phone, I clicked madly through the Flickr archive to see if I could still find the photo there … but of course, two years on the web is an eternity, and I couldn’t find that particular one. When I offered to take the photo down right then and there (which I did), Tuesday said her client “also wants to recover the license fee that should have been paid prior to the usage.” I asked her what his license fee might be for this image, thinking that I could pay Mr. Grecco a few hundred bucks for my (albeit accidental!) usage. After all, he seemed like a legit professional, and as a freelancer myself, I have respect for honest contract work. Tuesday said that Grecco’s license fee was $20,000. Honestly, my heart leapt into my throat. I freaked out. Winter is my slow season. It was the middle of December, the month I take off to recoup for new business in the new year. Like most working Americans, I didn't have $20k lying around. I had major end-of-year expenses coming up. I didn't have any assets, except my millennial-sized retirement fund. Would I have to dip into that in order to pay what seemed like an absolutely crazy license fee? I mean, I've bought stock from Getty in the past for clients. Getty can get pretty expensive, but honestly I’d never even seen a license for a single image that was more than $500. And that’s for 8,000+ pixel photos with global usage rights and unlimited print runs / digital impressions. I have some experience working in the publishing industry: $20k is what a midlist author would earn as an advance on an entire book, or what a photographer might earn for the exclusive rights to a photo that might appear on the cover of Rolling Stone, which has a paid circulation of like 1.5 million! My usage amounted to a single, 558-by-263 pixel-wide image that, according to my own analytics, reached a total worldwide audience of 98 visitors in the two years it’s been published on my personal blog. How the heck was I going to prove to Tuesday Maudlin that I innocently got the X-Files image from Flickr two years ago? And (just my luck), I couldn't find the damned thing in Flickr's ever changing archive. I also had a lingering suspicion in my head that Tuesday might not be a real person. Who has a name like Tuesday Maudlin? Her name sounds like a character from a Wes Anderson movie. Or maybe Higbee & Associates might not be a real law firm. While she was on the phone, I Googled “Higbee and Associates.” What I found was not comforting. Today, when I do the same search I get two links from the website of the supposed “National Law Firm,” and the third from a website called ExtortionLetter.info. The fourth is from /r/legaladvice with the title “Copyright Image: $1,000 payable to firm?” The fifth, from Techdirt with the excerpt “Back in June I was begrudged with a large piece of mail that I soon found out was from a National Law Firm, known as Higbee & Associates.” (I expect Paul Levy’s and Mike Masnick’s posts from last week will soon be indexed and rise up in the rankings.) Something seemed fishy. Tuesday then told me she'd emailed me several times about the claim. Now, I’m not one to overlook emails. I practice Inbox Zero every day. As a web designer, every missed email is a potential missed lead. It wasn't until I was off the phone that I found the Higbee emails: they had all been captured by my junk filter in Postbox. At a glance, I could see why my junk filter classified them as spam: the message headers were not DMARC compliant. Two of the three emails lacked SPF authentication and all of them lacked DKIM signatures. Tuesday’s email in particular was the spammiest looking, given the all-caps subject line “517865 / IMPORTANT LEGAL MATTER” and the scrunched together paragraphs of text with mismatched fonts. The original email links to an “online portal” and provides login credentials—all things which were, in my opinion as someone who’s created HTML emails for clients in the past, tell-tale signs of a phishing attack. Honestly, even if I had seen them prior to the phone call, I probably would've dismissed them as elements of an automated scam. But Tuesday also claimed she'd mailed a physical letter to me; the earliest-dated email that I recovered from my junk folder also mentioned a physical letter. Where to, I asked? After all, in the past two years, I had moved to three different apartments, so I wouldn’t have been surprised if a letter wasn’t forwarded. She gave an address: 2360 Hegal Place Apt #42 in Alexandria, VA 23242. I was too sick to laugh. Higbee & Associates must have found Fox Mulder’s fictional address from my Facebook, and mailed it there. I told her to mail me the paperwork to my actual address, and we could go from there. I told my wife the news when she got home. I felt helpless and ashamed. How could I, of all people, make this sort of mistake? My wife reassured me that whatever happened, we'd survive. I became less optimistic the more I learned about Higbee & Associates. I worked up the courage to download the Higbee emails into a virtual machine so I could safely open the files they'd attached to the emails. Sure enough, there was the supposedly infringing X-Files photo staring back at me, and in Higbee's letter, the scary demand: “If forced to go to court, my client will ask for the maximum relief possible, which may include statutory damages under 17 U.S.C. §504 for up to $150,000 for intentional infringement or $30,000 for unintentional infringement. My client would also ask the court to have you pay court costs and attorneys fees. Copyright lawsuits can result in judgments, wage garnishments and liens on property. In some instances, the business owner can be held individually liable.” The copyleft movement suddenly felt like a trap. What if other images I'd acquired from the Creative Commons were misattributed like this one? I took down ALL the posts on my blog and stayed up all night, going back to see which ones I could find again on Flickr, making a log of the attributions and screenshotting the links. If I had any doubt at all, I replaced images with better-sourced ones and live links. I couldn't afford to be ruined financially for any fandom, let alone my favorite. Higbee & Associates brags about their high success rate and the money they’re generating for their clients. That scares me. If Higbee & Associates is in fact using automated technology to search for infringements and then issuing these demands en masse, most people will not have the resources at their disposal to defend themselves or pay the mind-boggling settlements. How many thousands of other people are in a position similar to mine, right now? Unable to afford an exorbitant fee, believing the threat is real, and terrified to lose their home over a single photo? One of wife’s close friends suggested I get in touch with an attorney specializing in IP law. She said the demand letter looked suspect, but she was in no position to advise because her area of expertise wasn’t in intellectual property rights. My wife reached out to a women’s networking group for referrals—which led to my meeting Carolyn Homer. Needless to say, I am so glad I did. Not only is Carolyn a nerd like me, but she lives and breathes IP. The depth of her generosity in taking on my case was matched only by her confidence and knowledge of copyright law. I started to breathe again. There were serious problems with Higbee’s demand. I could contest them, not roll over and cough up $20k. Permalink | Comments | Email This Story

Read More...
posted 1 day ago on techdirt
Lawsuits were threatened after students from a Kentucky Catholic school were portrayed as engaging in racist behavior during an anti-abortion march at the nation's capital. An edited video swiftly circulated the internet, showing student Nick Sandmann facing off with a Native American protester while wearing a seemingly-smug file on his face and a Make America Great Again hat on his head. More footage of the incident appeared later providing a bit more context, making the obvious racism seem less obvious. But the Twitter ship had sailed and there was little hope of turning it around. Lessons could have been learned from rushing to judgment, but Nick Sandmann and his family's lawyers have decided this lessons should be taught via libel lawsuits. They've got an uphill battle as nearly everything said about Sandmann and the incident was protected opinion, but a lack of credible arguments has never prevented lawsuits from being filed. As Buzzfeed reports, one of the first targets is the Washington Post. Sandmann's complaint [PDF], composed by attorneys Lin Wood and Todd McMurtry, is about half op-ed, half federal complaint. Here's the lead off: The Post is a major American daily newspaper published in Washington, D.C. which is credited with inventing the term "McCarthyism" in an editorial cartoon published in 1950. Depicting buckets of tar, the cartoon made fun of then United States Senator Joseph McCarthy's "tarring" tactics of engaging in smear campaigns and character assassination against citizens whose political views made them targets of his accusations. In a span of three (3) days in January of this year commencing on January 19, the Post engaged in a modern-day form of McCarthyism by competing with CNN and NBC, among others, to claim leadership of a mainstream and social media mob of bullies which attacked, vilified, and threatened Nicholas Sandmann (“Nicholas”), an innocent secondary school child. The Post wrongfully targeted and bullied Nicholas because he was the white, Catholic student wearing a red “Make America Great Again” souvenir cap on a school field trip to the January 18 March for Life in Washington, D.C. when he was unexpectedly and suddenly confronted by Nathan Phillips (“Phillips”), a known Native American activist, who beat a drum and sang loudly within inches of his face (“the January 18 incident”) Moving along… The Post ignored basic journalist standards because it wanted to advance its well-known and easily documented, biased agenda against President Donald J. Trump (“the President”) by impugning individuals perceived to be supporters of the President. [Scrolls to the bottom of the filing to make sure it wasn't composed by Larry Klayman...] In this country, our society is dedicated to the protection of children regardless of the color of their skin, their religious beliefs, or the cap they wear. But the Post did not care about protecting Nicholas. To the contrary, the Post raced with a reckless disregard of the facts and truth because in this day and time there is a premium for being the first and loudest media bully. The Post wanted to lead the charge against this child because he was a pawn in its political war against its political adversary – a war so disconnected and beyond the comprehension of Nicholas that it might as well have been science fiction. Let's just try to find the factual allegations. It's established that Sandmann's lawyers wish to offer their opinion that the Washington Post is a bully that targeted Nick Sandmann because he supported a president the Post dislikes. But that's all that's been established -- despite the use of the term "defamation" here and there -- by the time the lawsuit drops its first mention of damages. Some weird eye-for-an-eye demand is being made by Sandmann's attorneys. In order to fully compensate Nicholas for his damages and to punish, deter, and teach the Post a lesson it will never forget, this action seeks money damages in excess of Two Hundred and Fifty Million Dollars ($250,000,000.00) – the amount Jeff Bezos, the world’s richest person, paid in cash for the Post when his company, Nash Holdings, purchased the newspaper in 2013. Eight pages in, we finally have an allegation that doesn't sound like an angry blog post: On January 19, 20 and 21, the Post ignored the truth and falsely accused Nicholas of, among other things, “accost[ing]” Phillips by “suddenly swarm[ing]” him in a “threaten[ing]” and “physically intimidat[ing]” manner as Phillips “and other activists were wrapping up the march and preparing to leave,” “block[ing]” Phillips path, refusing to allow Phillips “to retreat,” “taunting the dispersing indigenous crowd,” chanting “build that wall,” “Trump2020,” or “go back to Africa,” and otherwise engaging in racist and improper conduct which ended only “when Phillips and other activists walked away.” Seems straightforward except for a number of inconvenient facts. As the lawsuit admits, these reports were based on an edited video that led many, many people to the same conclusions. The lawsuit claims the Post acted carelessly by not acting on information it became aware of four days after it published its first article. By January 23, the Post conceded that the @2020fight account that was largely responsible for the edited video going viral on social media may have been purchased from Shoutcart.com for that specific purpose. With no investigation into the @2020fight account, the Post actively, negligently, and recklessly participated in making the 2020fight Video go viral on social media when on January 19 at 9:21 a.m., Post reporter Joe Heim re-posted the 2020fight Video. The lawsuit says the Post recklessly published a piece on the incident on January 19th, four hours after the edited video went viral. Somehow this is defamatory because the Post "recklessly" did not act on information it didn't have (the extended video posted a day later) prior to publishing this article. Then the lawsuit wanders off to discuss the investigation of the incident by a firm hired by the Catholic school Sandmann attends, as though this should have some bearing on an article published prior to an investigation the Washington Post wasn't involved with. When it comes to narrow down the alleged defamation, the lawsuit somehow gets even worse. It spends four paragraphs enumerating "false and defamatory gists" -- a legal concept usually offered as a defense, rather than an accusation. Then it accuses the Washington Post of defaming Sandmann by publishing statements made by other people to the Post reporter. In its First Article, the Post published or republished the following false and defamatory statements: (a) The headline “‘It was getting ugly’: Native American drummer speaks on the MAGA-hat wearing teens who surrounded him.” (b) “In an interview Saturday, Phillips, 64, said he felt threatened by the teens and that they suddenly swarmed around him as he and other activists were wrapping up the march and preparing to leave.” (c) “Phillips, who was singing the American Indian Movement song of unity that serves as a ceremony to send the spirits home, said he noticed tensions beginning to escalate when the teens and other apparent participants from the nearby March for Life rally began taunting the dispersing indigenous crowd.” (d) “A few people in the March for Life crowd began to chant ‘Build that wall, build that wall,’ he said.” (e) “‘It was getting ugly, and I was thinking: ‘I’ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial,’ Phillips recalled. ‘I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.’” (f) “‘It clearly demonstrates the validity of our concerns about the marginalization and disrespect of Indigenous peoples, and it shows that traditional knowledge is being ignored by those who should listen most closely,’ Darren Thompson, an organizer for the [Indigenous Peoples Movement], said in the statement. (g) “Chase Iron Eyes, an attorney with the Lakota People Law Project, said the incident lasted about 10 minutes and ended when Phillips and other activists walked away.” (h) “‘It was an aggressive display of physicality. They were rambunctious and trying to instigate a conflict,’ he said. ‘We were wondering where their chaperones were. [Phillips] was really trying to defuse the situation.’” (i) “Phillips, an Omaha tribe elder who also fought in the Vietnam war, has encountered anti-Native American sentiments before . . . .” From there, it discusses about a second article by the Washington Post, alleging it was somehow defamatory for the Post to publish a statement from the Covington Diocese decrying the teen's behavior. It also says a third article from the Post was defamatory -- again listing only things other people said to the Post's reporter. Then there's more stuff about "defamatory gists." And on it goes for several more pages, highlighting each Post article about the subject while failing to point out any defamatory statements actually made by the Washington Post. This is a garbage lawsuit. It makes zero credible defamation accusations, spending its entirety either stating its own opinions about the paper or attempting to hold it legally responsible for statements made by other people. It's not winnable. Its sole purpose appears to be to exist loudly, hoping to create a deterrent effect simply by banging about the place self-importantly. It will go nowhere, but it will do so as noisily as possible. If this is all Sandmann's parents wanted from their legal representation, they should have accepted the pro bono offers being made, rather than sink money into this ostentatious waste of time. Permalink | Comments | Email This Story

Read More...
posted 1 day ago on techdirt
DevOps is a software development methodology that combines software development with information technology operations in order to shorten the system development life cycle. Most software companies today employ extensive DevOps staffs and engineers are in constant demand. The DevOps Training Master Class Bundle will help you Master configuration management & continuous integration deployment, delivery and monitoring using DevOps tools such as Git, Docker, Jenkins, Cucumber, TeamCity, Ansible, and Nagios. You'll learn key concepts for Microsoft Azure, Agile Scrum, Puppet and more. It's on sale for $69. 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

Read More...
posted 1 day ago on techdirt
There's a pretty fascinating profile last week in Billboard magazine of teenage musician/rapper NLE Choppa who just turned down a $3 million record label deal. Choppa (real name: Bryson Potts) rocketed to fame thanks to YouTube, where his Shotta Flow video was uploaded just last month, but has over 10 million views. When given the chance to sign with a bunch of different labels all bidding for him, he decided to take a very different deal -- one where he retains all the rights and just partners with a distribution company, UnitedMasters: Within a month, Choppa, whose real name is Bryson Potts, had sparked a bidding war among record companies like Republic, Interscope and Caroline, with bids reaching as high as $3 million. This kind of story is familiar: Young, local rapper goes viral; labels pounce. But this week, the rapper tells Billboard, he turned down those offers to enter a distribution partnership with UnitedMasters, Steve Stoute’s independent distribution company, without an advance and while retaining full ownership of his master recordings. And why doesn't he need a full on record label deal? Because of the internet and all of the various internet services out there that are already making him wealthy: Stoute says that when the “Shotta Flow” music video caught the eye of UnitedMasters’ A&R team last month, he immediately reached out to Choppa and the rapper's mother, who was acting as his manager, offering distribution for the song. Choppa agreed. “Then, record companies are calling the guy and offering a bunch of money,” Stoute tells Billboard. “Here’s the issue: He’s already just seen, with him owning the rights and us doing distribution, he’s earning money on Spotify and Apple Music, and his song is growing on YouTube. What does he need a record company to do?” Let's repeat that for those of you who are a bit slow in class: He’s already just seen, with him owning the rights and us doing distribution, he’s earning money on Spotify and Apple Music, and his song is growing on YouTube. What does he need a record company to do? Just last week we were talking about how many independent artists are embracing the internet to avoid the legacy gatekeepers. Meanwhile, bureaucrats and recording industry lobbyists keep insisting that the EU needs Article 13 because the internet is unfair to artists? They're saying that there's a "value gap" because of YouTube? Maybe, just maybe, Article 13 has a lot more to do with the fact that the labels are losing relevance. When an artist like Choppa can retain his rights, build a massive audience, and make a ton of money thanks to internet platforms and does not need a label or all the downsides of a label deal, it certainly suggests that the "problem" Article 13 is claiming to solve might not be an actual problem. Indeed, the real "problem" that Article 13 seems to solve is the fact that the labels aren't needed as much any more. And that's not actually a problem for anyone who isn't, you know, a record label. Permalink | Comments | Email This Story

Read More...
posted 2 days ago on techdirt
Remember when the cable industry used to pretend that cord cutting wasn't real? Or perhaps you remember that once the industry was actually willing to admit it was a real trend, they'd claim it was only something being done by losers living in their parents' basement? Or perhaps you'll remember the cable and broadcast industry claims that cord cutting was just a temporary phenomenon that would go away once the housing markets stabilized and Millennials started procreating? Or how companies like ESPN routinely claimed that warnings about the trend were an unimportant fiction that should be ignored? Good times. While there are still a few sector analysts and executives here and there who'll bizarrely try to downplay one of the biggest trends in TV industry history, the numbers keep making it harder and harder to keep ones' head buried a foot below ground. Last year, for example, once again saw one of the highest defection rates of traditional TV subscribers in recent memory. According to Wall Street analysts, the top pay TV providers lost 2.5 million subscribers last year alone: 2018 PayTV net addsVerizon -168kCharter -296kComcast -344kAT&T -750kDISH -950kSub-total -2.5 million — Walter Piecyk (@WaltBTIG) February 13, 2019 Ironically the two companies that actually tried to adapt to the cord cutting trend suffered the worst losses. Both AT&T and Dish have launched DirecTV Now and Sling TV, respectively, in a bid to try and at least hoover up a few of these fleeing customers with their own streaming services. That's something to be applauded, especially since huge swaths of the sector have simply responded by doubling down on terrible ideas (from raising rates to fighting against real cable box competition). But even with adaptation, users are still fleeing to other alternatives (Amazon, Hulu, Netflix) instead. It's not going to be getting any easier for entrenched pay TV providers, especially the ones that stubbornly refuse to compete on price. The streaming market will soon face a new rival in the form of Apple's and Disney's new Disney+ streaming service, which will be the exclusive home of most Star Wars, Marvel, Pixar, and Disney children's' programming: "The clear implication is that year-over-year subscriber trends for programmers that improved throughout 2018 are set to worsen again in 2019,” Greenfield wrote. The analyst is widely known as bearish on the pay-TV sector, frequently using the hashtag #goodluckbundle in his commentary (as he did in Wednesday’s post). The cord-cutting problem promises to grow even more exacerbated as new subscription-streaming services from Disney (Disney+), WarnerMedia and NBCUniversal hit the market starting later this year. Those will via for consumers’ entertainment dollars against SVOD players like Netflix, Hulu, and Amazon Prime Video." So if companies like AT&T and Dish are actually trying to adapt to reality, why are they seeing such major departures? Many of these users were on unrealistically cheap discounted promotions intended to drive adoption that ended. And some users were frustrated by the a price hike by AT&T in the wake of its latest megamerger with Time Warner. New streaming companies are also actually good at customer service, something the cable and broadband industry hasn't been able to get a handle on for the better part of a generation. Between tight margins and an ocean of new arrivals, it's going to be pretty hard for the cable industry to make anywhere near the same profits they were used to during the heyday of cable TV. But that's generally how competition works. And you shouldn't feel too badly for the Comcasts of the world, since their solution will simply be to jack up the cost of broadband, where competition is far weaker. Still, there's a subset of executives who still seem to somehow believe they're owed a permanent position of dominance without having to work for it. That delusion is falling apart more quickly than most of them expected. Permalink | Comments | Email This Story

Read More...
posted 2 days ago on techdirt
If an appeals court doesn't step in within the next few days, California law enforcement agencies will have to start handing out police misconduct records to records requesters. Since the new transparency law went into effect at the beginning of this year, California police unions have been rushing to stop it from having any meaningful effect. The unions are hoping courts will side with their take on the law -- a take that allows law enforcement agencies to memory-hole misconduct and use of force files predating the law's effective date. The author of the law, Senator Nancy Skinner, made it clear the new law applies retroactively. The state attorney general, Xavier Becerra, chose to ignore the clarification sent directly to his office by the Senator, and claimed the issue of retroactivity was still open. The issue isn't as open as Becerra and a few dozen police unions think it is. One court has already said the law should apply retroactively, lifting its temporary injunction pending an appeal. Now another court has sided with the public and greater accountability, stating that the new law can reach old misconduct files. A Los Angeles judge dealt a blow Tuesday to law enforcement unions trying to limit the scope of a landmark transparency law, ruling that records from shootings, use of force and some misconduct by police officers in California are public even if they occurred before the new law took effect this year. The decision marks a provisional victory for open-government groups and media organizations that intervened in a case brought by the Los Angeles Police Protective League, which sought to keep records of older incidents confidential. Los Angeles County Superior Court Judge Mitchell L. Beckloff’s ruling involves records that fall under Senate Bill 1421 — internal investigations into shootings by officers, severe uses of force and confirmed cases of sexual assault and lying by officers. The expiration date for secrecy -- according to this decision -- is March 1st. The order will take effect and force affected agencies to start respecting the law that went into effect three months earlier. No doubt this will be appealed, but there's no indication this judge is willing to hand out a temporary injunction to the unions while they fight the inevitable. The only option left for agencies to do while the legal war wages on is stonewall requests and overvalue their redaction efforts. Permalink | Comments | Email This Story

Read More...
posted 2 days ago on techdirt
When one thinks about an Instagram account being taken over by a malicious actor, one usually imagines some kind of hack or social engineering resulting in the theft of an account password. The refrain "It wasn't me, I was hacked!" that you hear from some whose social media profiles are the subject of social scrutiny relies on this impression. But there are many different ways to hack a cat. The latest in Instagram account takeovers appears to be done through the avenue of trademark law, interestingly enough. Motherboard has a fascinating write-up detailing an entire ecosystem of malicious actors who are abusing trademarks to convince Instagram to hand over access to accounts. Scammers do this by creating fake companies and trademarks to convince Instagram they should be the legitimate owner of a username in question, with fraudsters using “trademarking,” as the technique is known, to get ahold of sought-after, valuable handles, according to posts and evidence of the process in action obtained by Motherboard. The scammers can then keep these handles as digital mementos, brag about their acquisition, or resell them at a profit in a thriving underground community. Instagram allows users to report handles that a person or company believes infringes on their trademark. For example (this is a hypothetical), if the creator of the @disney handle on Instagram was not actually associated with Disney, the company may want to appeal to obtain ownership of the username. If Instagram agrees, it may then hand over control of the account to the original trademark holder. Instagram told Motherboard it has a team that works on trademark and intellectual property issues, and as part of that process, the team reviews whether a complaint may be fraudulent. Judging by the sheer volume of bad actors that are "trademarking" in order to fool Instagram, it seems the company's team is at best not fully up to the task of weeding out the fraudsters. And, to be clear, this isn't so much a problem with trademark law as it is a problem with Instagram putting so much weight on supposed trademark ownership that it acts as the linchpin for account takeovers. That said, while time consuming, the ease with which bad actors can spin up trademarks makes this problem more wide-spread. Several users on the underground forum OGUsers, which focuses on the theft and sale of high value Instagram accounts, appear to engage in the practice. “I’m looking to get a trademark or fake trademark that will make it look like I own a word so I can get an insta username,” one user posted on the forum last year. “Need someone from the uk to file a trademark from me,” another OGUsers member wrote last year. “Willing to pay fees + 20% in bitcoin.” A previous Motherboard investigation found members of OGUsers often sell handles for thousands or sometimes tens of thousands of dollars worth of cryptocurrency, although most of those account hijackings likely rely on SIM-jacking, where a hacker takes control of a victim’s phone number. Again, the ultimate culprit here is Instagram using a trademark, or supposed trademark, as the chief justification for handing over an Instagram account. There obviously needs to be more of a check in place to ensure that this exact tactic is not allowed to be abused. It's also something of a symptom of ownership culture that an individual is allowed to point to a trademark, then to an Instagram account, and claim ownership. It seems the only barrier to abusing trademark law for malicious actions is one of creativity. Permalink | Comments | Email This Story

Read More...
posted 2 days ago on techdirt
A handful of semi-famous people rang in the New Year by bringing copyright infringement lawsuits against online gaming juggernaut, Fortnite. The plaintiffs all accused Fortnite's developers of swiping their dances to use as sellable "emotes" for players' avatars. There were several problems with these lawsuits, not the least of which were the claims Fortnite infringed on uncopyrightable dance steps. While the copyright office is willing to extend protection to choreographed dances with sufficiently complex steps, the dances at the center of these lawsuits hardly met the bar for protected creativity. That leads to one of the other problems: while statutory damages were threatened in the lawsuits, none of the plaintiffs appeared to have secured copyright protection for their dance steps before filing their lawsuits. The one filed by Alfonso Ribeiro -- targeting Fortnite's use of the "Carlton Dance" -- mentioned he had filed a registration for his dance but hadn't actually been granted any protection yet. Ribeiro spoke both too late and too soon. Can't seek statutory damages without a registration. And you can't use a registration as leverage for a settlement if the US Copyright Office doesn't find your dance sufficiently creative. The U.S. Copyright Office is skeptical about Fresh Prince of Bel-Air actor Alfonso Ribeiro's ownership claim over the signature "Carlton Dance," which became famous after a 1991 episode of the Will Smith series. In correspondence last month that was surfaced on Wednesday in California federal court, Saskia Florence, a supervisory registration specialist in the Office's Performing Arts Division, told Ribeiro's attorney that registration must be refused because his claimed "choreographic work" was a "simple dance routine." If you've ever wanted to hear the Carlton Dance dryly described in embarrassing detail, the correspondence [PDF] from the Copyright Office has you covered: The work submitted for registration with this application consists of a simple routine made up of three dance steps, the first of which is popularly known as "The Carlton." See Compendium (Third) § 309.2 (noting that the Office may take administrative notice of facts or matters known to the Office or the general public). The dancer sways their hips as they step from side to side, while swinging their arms in an exaggerated manner. In the second dance step, the dancer takes two steps to each side while opening and closing their legs and their arms in unison. In the final step, the dancer's feet are still and they lower one hand from above their head to the middle of their chest while fluttering their fingers. This recitation is too much. Ribeiro's dance is too little. Application refused. Ribeiro can certainly continue with his lawsuit, but this decision isn't going to make it any easier to win. The only leverage he might have had was a successful registration. If the copyright office doesn't find his dance protectable, it's unlikely a federal court is going to decide any infringement took place. Permalink | Comments | Email This Story

Read More...
posted 3 days ago on techdirt
California law enforcement's fight against transparency and accountability continues. Since a new law allowing the public to access police misconduct record went into effect, the following has happened: The City of Inglewood allowed the Inglewood PD to shred all of its pre-2019 misconduct records. A sheriff's union asked the state Supreme Court to declare that the new law did not apply retroactively. The court declined the union's premature request. Multiple agencies arbitrarily decided the law did not apply retroactively, prompting a number of lawsuits from public records requesters. The author of the law stepped up to point out the law was presumed to be retroactive, clarifying the legislative intent. The state's attorney general ignored the law's author's statement -- which had been sent to him directly -- to claim no agency needed to turn over historical misconduct records until the courts sorted this out. The courts began sorting this out. So far, two state courts have handed down rulings coming down on the side of retroactivity. It doesn't seem likely the state's courts are going to side with law enforcement agencies and their desire to whitewash their pasts. The legal battles will continue until every avenue of appeal has been exhausted, but until there's a definitive, unified ruling on the issue, agencies will continue to play keepaway with public records. With their dirty pasts in jeopardy of being exposed, law enforcement agencies are turning to another favorite dirty trick: pricing records requesters out of the market. Sara Libby of the Voice of San Diego says the San Diego Sheriff's Department wants $246,759.32 to process past use of force records. Comparatively, it's a bargain. There's a $100,000 markup on the request filed by KPBS, which is seeking the same records from the agency. The San Diego County Sheriff's Department estimated it'll cost hundreds of thousands of dollars to supply police misconduct and use of force records in response to a KPBS request. The agency's response is the latest development in a battle between law enforcement agencies and media organizations across the state to obtain records recently made available under a new law that took effect January 1. [...] A Monday letter from the Sheriff's Department to KPBS said the $354,524.22 fee will cover the cost to review and redact records from 48 use of force cases. It is still estimating the cost for 28 others, the response said. This is an insane amount of money to charge for records related to 48 use of force cases. The department claims it will need to obtain special equipment to redact audio and video files, and has decided to pass that entire cost on to KPBS despite the fact the equipment will be used to process records requests for years to come. The Sheriff's Department's justification for this move? The law says it can and doesn't require it to determine whether or not it should. Unsurprisingly, the law enforcement agency may be wrong about the law. However, James Chadwick, a partner of the law firm Sheppard Mullin said the court case the agency cites is currently under review by the California Supreme Court. "So that's actually not currently a citable precedent," Chadwick said. "It's not controlling authority on anything, so their reliance on that single precedent is pretty questionable as well." Whatever it takes to keep the public from knowing how many bad cops their tax dollars have paid for, I guess. There have been a few agencies in state acting in good faith since the new law went into effect, but the reaction from most has been to further damage their relationships with the public they serve with antagonism, stonewalling, and deliberate obtuseness. UPDATE: It appears a little public shaming goes a long way: San Diego County Sheriff Bill Gore confirmed to KPBS he will not charge to produce newly available records on incidents of use of force or confirmed cases of sexual assault and dishonesty by a deputy. KPBS previously received estimates totaling nearly $400,000 to remove private information from materials for dozens of cases. Even better, Sheriff Gore appears to realize exactly what message he sent -- intentionally or not -- by demanding a ridiculous amount of money for the processing of these files. "We looked at the perception that it creates that we’re trying to circumvent the law and make it cost prohibitive — that is not the intention of what we’re doing," Gore said in a phone interview. The department will absord the costs of the new equipment and hire more people to handle the influx of document requests triggered by the new public records law. Permalink | Comments | Email This Story

Read More...
posted 3 days ago on techdirt
Yesterday we published Part I of Danish journalist/author and Cato Institute Fellow Flemming Rose's very interesting conversation with Dutch MEP Marietje Schaake concerning questions around internet platforms and regulation. This is the second and final part of that conversation. FR: I want to focus on the small players. People concerned about regulation say that if you only focus on the big players like Facebook, Google or Twitter and how to regulate them, you will make it very difficult for the small players to stay in the market because transaction costs and other costs connected to regulation will kill the small companies. Regulation becomes a way to lock in the existing regime and market shares because it takes so many resources and so much money to stay in the market and compete. And new companies will never be able to enter the market. What do say to that argument? MS: It depends on how the regulations are made but it is a real risk. It is the risk of GDPR (general data protection regulation), and with filtering as suggested now. The size of a company is always a way to assess whether there is a problem, and I think we should do the same with these regulations so that there could be a progressive liability depending on how big the company is or there could be some kind of mechanism that would help small or medium size companies to deal with these requirements. Indeed, it is true that for companies that have billions of euros or dollars of revenue, it's easy to deploy lots of people. A representative of Google yesterday (at a conference in the European Parliament) said they have 10,000 people working on content moderation. Those are extraordinary figures, and they are proportionate because of the big the impact of these companies, but if you are a small company you may not be able to do it, and this is always an issue. It's not the first time we have been dealing with this. With every regulation the question is how hard it is for small and medium enterprises. FR: The challenge or threat from misinformation is also playing a big role in the debate about regulation and liability. We will soon have an election in Denmark. Sweden recently had an election where there was a big focus on misinformation, but it turns out that misinformation doesn't work as well in Denmark as in the US or some other countries because the public is more resilient. Why not focus more on resilience and less on regulation so people have a choice? We are up against human nature, these things are triggered by tribalism and other human characteristics. To counter it you need education, media pluralism, and so on. MS: I think you need to focus on both. First, what is choice if you have a few near monopolies dominating the market? Second, how much can we expect from citizens? If you look at the terms of service for a common digital provider that you and I use, they are quite lengthy. Is that a choice for a consumer? I think it's nonsense. That's one thing. Moreover, we are lucky because we are from countries where basic trust is relatively high, media pluralism exists, there are many political parties, and our governments will be committed to investing in education and media pluralism, knock on wood. How will this play out in a country like Italy where basic trust is lower and where there is less media pluralism, how are you ever going to overcome this with big tech, so I think there is a sufficient risk if you look at the entire European Union, Hungary and other countries, that governments will not commit resources to what is right and they will create the kind of resilience that our societies already have. In the Netherlands trust in the media is among the highest, and it's probably also because of a certain quality of life and certain kind of freedom that people have enjoyed for a long time. Even in our country you see a lot of anti-system political parties rise, so it's not a given that this balance will continue forever because it requires public resources to be spend on media and other factors. So I think both are very important and I don't want to suggest that we should not involve people but I don't know if we can expect of the average citizen to have the time and the ability to have access to information it would take to make them resilient enough on their own. FR: Do you think a version of the German "Facebook law" with the delegation of law enforcement to the digital platforms will make it to the agenda of lawmakers in the European Parliament? MS: No, I think there are too many flaws in it. It's bad. Some form of responsibility on behalf of companies to take down information will exist, but I hope the law will be the primary tool. The companies will take down content measured against the law with the proper safeguards and proportionality. If there are incentives like big fines to be overtly ambitious in taking down information, that's a risk. But on the other hand, the platforms as private companies already have all the freedom they want to take down any information with a reference to their terms of use. We are assuming that they are going to take the law as guidance, but nothing indicates they will. In fact, Facebook doesn't accept breastfeeding pictures, so they are already setting new social norms. A new generation may grow up thinking breastfeeding is obscene. The platforms are already regulating speech, and people who are scared about regulation should understand that it is Mark Zuckerberg who is regulating speech right now. FR: Recently the EU praised the Code of Conduct to fight hate speech online that they signed with the tech companies in 2016. A lot of speech has been taken down according to the EU: 89 percent of flagged content within 24 hours in the past year, but my question is: Do we know how much speech has been taken down that should not have been taken down? MS: No, we don't know. FR: That will concern those who value free speech. You have the law and you have community standards and then you have a mob mentality, i.e. the people who are complaining most and screaming louder will have their way and they will set the standards. So if you organize people to complain about certain content, it will be taken down to make life easier for Facebook and Twitter and Google. MS: Yes. FR: So you agree that it's a concern? MS: It's a huge concern. If you believe in freedom of expression which I know you do, and I think it's one of the most important rights and so many people have been fighting for it, why will we give it up? Just a little bit of erosion of freedom of expression is a huge danger and therefore to put responsibility on these companies to take down content without a check against the law is a risk, to allow these companies to set their own terms of use that can be at complete odds with the law and also with social norms (consider the restrictions on the breastfeeding, on Italian Renaissance statues as pornographic, or on the photo of a naked girl hit by napalm in Vietnam). Let me give you an example from my own experience. I gave a speech here in parliament, it was a very innocent and clearly political speech, but it was taken down by YouTube. They said it was marked as spam, which I don't believe. I have never posted anything that was labeled spam. What I think happened was that my speech was about banning goods and trade that can be used for torture and the death penalty. I think that the machine flagged torture because torture is bad, but a political debate about torture is not bad. I took a screenshot of the fact that YouTube took it down, posted it on twitter and said "wow!, see what happened", and they were on the phone within two hours, but that's not the experience most people (including the people I represent) will have. That's the danger. We also know examples of Russians having flagged Ukrainian websites and then they were taken down. And if that happens to a political candidate in the last 24 hours before an election it could be decisive, even if the companies say they'll restore it within 24 hours. FR: I spoke to a representative from one of the tech companies who said that when they consult with German lawyers whether something is legal or not, they will get three different answers from three different lawyers. He said that his company would be willing to do certain things on behalf of the government, but it requires clear rules and today the rules aren't clear. MS: Right, so now you see incentives coming from the companies as well. It's no longer working for them to take on all these responsibilities whether they are pushed to do so or just asked to do it. The fact that they have to do things is also a consequence of them saying "don't regulate us, we can fix this." I think it's a slippery slope. I don't want to see privatized law enforcement. What if Facebook is bought by Alibaba tomorrow? How happy would we be? FR: I want to ask you about monopolies, competition and regulation. If you go back to 2007 MySpace was the biggest platform, then it was outcompeted by Facebook. As you say, there are concerns about the way Facebook manages our data and its business model with ads and sensational news driving traffic and getting more eyeballs. But why not let the market sort things out? If there is dissatisfaction with the way Facebook is running their business and our data, why not set up a competing company based on a different business model that will satisfy customers' need? MS: States don't built companies in Europe. FR: I was having private companies in mind. Netflix has a subscription model, wouldn't a digital platform like Facebook be able to do the same? MS: I think it would be difficult now, because there is a lock-in effect. In Europe we are trying to provide people with the ability to take their data out again. If you use gmail for 12 years, your pictures, your correspondence with your family and loved ones, with your boss and colleagues, it could all be in there, and you want to take all those data with you. It's your correspondence, it's private, you may need it for your personal records. You may have filed your taxes and saved your returns and receipts in the cloud. If you are not able to move that data to another place, then competition exist only in theory. Also, if you look at Facebook, almost everybody is on Facebook now. For somebody else to start from scratch and reach everybody is very difficult. It's not impossible but it's difficult. And for those models to make money the question is how much are customers willing to pay as required by the subscription model? Facebook and Google already have so much data about us. Even if I am not on Facebook, but all my friends are, then a sketch of my identity emerges because I am the empty spot between everybody else. If people start posting pictures of a birthday party with the 10 people who are on Facebook and the one person that is not, and then somebody says I can't wait to go on holiday with Marietje or whatever, then at some point it would be clear who I am, even if I am not on the platform, so they already know so much and they already has access to so much data about people's behaviour that effectively it will be very hard for any competitor to get close, and we have seen it in practice. Why hasn't there been more competition? FR: Do you compare notes with US lawmakers on this? And do you see that your positions are getting closer to one another? MS: Yes. FR: Can you say a bit more about that? MS: First of all the talk has changed. The Europeans were dismissed as being jealous of US companies and therefore proposing regulations, i.e. we were proposing regulations in order to destroy US competitors. I don't think that's true, but this stereotypical view has been widespread. Also, we were being accused of being too emotional about this, so we were dismissed as being irrational which is quite insulting, but not unusual when Americans look at Europeans. I think we are in a different place now with a privacy law in California, with New York Times editorials about the need for tougher competition regulations, with senators proposing more drastic measures, with organizations like the Center for Humane Technology focusing om time well spent, and with Apple hiring people to focus on privacy issues. Recall also conversations about inequality in San Francisco. We have a flow of topics and conversations that suggest that the excessive outcomes of this platform economy need boundaries. I think this has become more and more accepted. The election of Donald Trump was probably the tipping point. We learned later how Facebook and others had been manipulated. FR: You said that the problem with these companies is that they have become so powerful and therefore we need to regulate them. Is the line between public and private as blurred in Europe compared to the US? You focus on power no matter whether it's the government or a private company when it comes to protection of free speech, while in the US the First Amendment exclusively deals with the government. Do you see that as a fundamental distinction between Europe and the US? MS: There are more articulated limitations on speech in Europe: for example, Holocaust denial, hate speech and other forms of expression may be prohibited by law. I think there is another context here that matters. Americans in general trust private companies more than they trust the government, and in Europe roughly speaking it's the other way round, so intuitively most people in Europe would prefer safeguards coming from law than trusting the market to regulate itself. That might be more important than the line between private and public and the First Amendment compared to European free speech doctrine. Permalink | Comments | Email This Story

Read More...
posted 3 days ago on techdirt
Law enforcement agencies love their automatic license plate readers. ALPRs do what cops physically can't: scan millions of plates a year and run them against a number of shared databases. The systems are black boxes. The public is often given little information about how many plate images databases store or for how long. Law enforcement agencies rarely audit the data, providing zero insight on the number of false positives ALPRs return. Non-hit photos are sometimes held indefinitely, creating databases of people's movements. All of these negatives are supposed to be outweighed by the fact that cops sometimes catch criminals with ALPRs. How often this happens is anyone's guess. Officials will tout the tech's ability to track down criminals, but these anecdotes are usually only provided when government officials start asking questions about the tech -- questions they should have asked during the approval process. Getting tagged as a hit by an ALPR is a frightening experience for innocent drivers. The tech tells cops they have a potentially dangerous criminal on their hands and they react accordingly. Drivers are somehow supposed to prove a negative at gunpoint and their inability to do only ratchets up the tension. A false hit by an ALPR has resulted in a federal lawsuit [PDF]. And the Contra Costa (CA) Sheriff's Department quite possibly found the worst person to pull over because a machine told it to. As chair of Oakland’s Privacy Advisory Commission, [Brian] Hofer, 41, has railed against what he describes as the seemingly arbitrary use of Automated License Plate Readers -- cameras that ping police and private agencies by matching plate numbers with "vehicles of interest." So the irony is not lost on him when he said he and his brother, a 23-year-old political science student at UC Berkeley, were detained, sometimes at gunpoint, on Nov. 25 when a license plate reader near the San Pablo Lytton Casino off Interstate Highway 80 alerted police that they were riding in a stolen car. Out came the guns, attached to officers sure they had caught a car thief. Hofer and his brother were detained at gunpoint while their rental vehicle was searched. Nearly a half-hour passed before any deputy attempted to determine whether the rental vehicle/contract was legit. Compounded errors are always a potential problem, but they reach critical mass quickly when government power attached to deadly force is involved. Here's the backstory to the stop -- a string of system failures that could have resulted in injury or death. Turns out though, that while the rental car he was driving had indeed been stolen from San Jose in October, either the police or the rental car agency hadn't updated the proper authorities that the white Getaround Kia had been recovered and should therefore be removed from the “hot list” database. The question isn't necessarily whether or not officers responded to the hot list hit inappropriately. The question is whether this response -- which has the potential to see people not only wrongfully detained, but possibly injured or killed -- is worth the tradeoff. Law enforcement will always say the errors are worth the labor tradeoff when it comes to ALPRs. Citizens held at gunpoint and warrantlessly searched will always disagree with this assessment. It's up to those policing the police -- city/county/federal authorities -- to make the right call when it comes to ALPRs. Without better data on these devices' potential for error, government officials are literally trading citizens' live and liberty for law enforcement convenience. Permalink | Comments | Email This Story

Read More...
posted 3 days ago on techdirt
TREBLAB Z2 Wireless Noise-Cancelling Headphones feature top-grade, high-performance neodymium-backed 40mm speakers. The Z2s use T-Quiet active noise canceling technology to drown out unwanted background noise and have a signal range of 38 feet. With a 35 hour battery life, you can listen for multiple days between charges. They're on sale for $79. 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

Read More...