posted about 1 month ago on techdirt
Turkey's president Recep Erdogan is the pettiest of tyrants, ruling with an iron fist and an easily-bruised ego. In addition to snuffing out dissent in his own country with a combination of arrests and intimidation, Erdogan and his government scour the planet for non-Turkish citizens who have offended Lord Gollum. This doesn't just take the form of content removal requests and site blocking. It also means actual arrests of foreign citizens residing in other countries. Germany's government was shocked to find an old law on its books -- one that forbade insulting foreign states -- being used against one of its own, a German comedian who wrote an immensely unflattering poem about the Turkish dictator. The government gave in at first before swiftly excising the law. The same can't be said about the Netherlands, another country with bad laws Erdogan is more than happy to exploit to silence criticism. This makes things a little easier for the Turkish government. The last time it punished a Dutch citizen for criticizing the Turkish president, it had to wait for the journalist to visit the country before arresting her. This time the Dutch government is going to be doing the punishing. Erdogan has spoken and, rather than being greeted with laughter followed by a dial tone, the Dutch government appears to be moving forward with a local prosecution. A 64-year-old man from Sittard in the Netherlands will face prosecution for insulting President Recep Tayyip Erdoğan in a series of offensive e-mails he sent to the Turkish Embassy back in 2016. In the e-mails, he compared Erdoğan to Adolf Hitler and also attached a photo of the Turkish president in Nazi uniforms, according to the BBC. Erdogan knows the laws of foreign countries at least as well as he knows his own. He's found another "insulting a friendly foreign head of state" law on the books in the Netherlands and has successfully demanded punishment for this violation of a foreign law by a foreign citizen. This is an unacceptable turn of events. Just because the law is on the books doesn't mean Dutch prosecutors have to actually prosecute anyone. Laws are broken every day, and even those incidents that law enforcement witness don't always result in charges. For this person, there's the possibility of a 6-8 month jail sentence for comparing Erdogan to Hitler, which isn't that much of a stretch. This bad law remains on the books for now. An effort to repeal it stalled, but hopefully the government's disgraceful bootlicking of a "friendly" foreign head of state will result in enough outrage the law will be stricken before it does any more damage. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Trademark disputes in the alcohol industries are often times absurd enough to make the comments section question whether everyone involved was simply drunk. While I'm sure the lawyers on all sides tend to be sober, every once in a while you read a claim in a big-boy legal document that makes you pause and wonder. And, then, sometimes the dispute centers around a public figure punning off his own notoriety, making the trademark claims extra ludicrous. Meet Bob Dylan. Bob used to be a counterculture folksinger hero that eschewed the trappings of materialism and sang as one of the original social justice warriors. Present day Bob sings songs on car commercials and owns a Whiskey brand. And, hey, Bob's allowed to make money, no matter how jarring this might be to those born decades ago. His Heaven's Door Whiskey is, sigh, allowed to exist. It's also allowed to fight back against the absurd trademark lawsuit brought by Heaven's Hill Distillery over its logo and trade dress. Heaven Hill Distillery has filed a trademark infringement lawsuit against Heaven’s Door Spirits, a whiskey line co-owned by Dylan that was released earlier this year. The company's name is a reference to Dylan’s 1973 song Knockin' on Heaven’s Door. The lawsuit, filed Friday in U.S. District Court in Louisville, argues that the Bardstown-based company was founded by the Shapira family shortly after prohibition ended in the 1930s and has used the trademark for more than 80 years. A Heaven Hill attorney sent a cease-and-desist letter to Chicago-based Heaven’s Door in April, saying the start-up distillery’s use of its trademark “will create a likelihood of confusion” with the Kentucky bourbon brand's products. The letter specifically notes that Heaven's Door has introduced a “stacked" logo similar to the one used by Heaven Hill. Dylan's company responded saying it didn't believe there would be any public confusion over the logos and trade dress and that it wasn't going to be making any of the changes requested. When it comes to these disputes, it's useful to actually put the entire products next to one another to see how similar they are. Simple logos can sometimes be squinted at and seen as similar, but on the question of confusion in the marketplace you really have to put the products side by side and imagine yourself in a store trying to decide between the two. I've done that for you below. It's frankly hard to imagine how anyone is going to be confused between these two liquor brands. The bottle shape is different. The label placement is different. The fonts aren't the same and neither are the color schemes for the labels. Even the logos themselves aren't particularly similar, stacked or otherwise. And, of course, there is the mockup of the ironwork sculpting on Dylan's bottle, modeled after his own iron sculpting artwork. Even the name of the brand is a reference to Dylan. How any of this adds up to market confusion is beyond me. And, yet, Heaven Hill essentially wants to scuttle Dylan's whiskey business altogether. The lawsuit is asking a judge to grant a temporary injunction prohibiting Heaven’s Door from producing, distributing or marketing until the lawsuit is concluded. In addition, attorneys for Heaven Hill want a judge to force Heaven’s Door to “deliver up for destruction or other disposition all goods, packaging, containers, advertisements, promotions, signs, displays” with their company name.The suit is also seeking unspecified monetary damages. Somehow, despite this suit, I would guess that Dylan's whiskey will continue to be released. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
For quite some time now, we've been trying to demonstrate just how impossible it is to expect internet platforms to do a consistent or error-free job of moderating content. Especially at the scale they're at, it's an impossible request, not least because so much of what goes into content moderation decisions is entirely subjective about what's good and what's bad, and not everyone agrees on that. It's why I've been advocating for moving controls out to the end users, rather than expecting platforms to be the final arbiters. It's also part of the reason why we ran that content moderation game at a conference a few months ago, in which no one could fully agree on what to do about the content examples we presented (for every single one there were at least some people who argued for keeping the content up or taking it down). On Twitter, I recently joked that anyone with opinions on content moderation should first have to read Professor Kate Klonick's recent Harvard Law Review paper on The New Governors: The People, Rules and Processes Governing Online Speech, as it's one of the most thorough and comprehensive explanations of the realities and history of content moderation. But, if reading a 73 page law review article isn't your cup of tea, my next recommendation is to spend an hour listening to the new Radiolab podcast, entitled Post No Evil. I think it provides the best representation of just how impossible it is to moderate this kind of content at scale. It discusses the history of content moderation, but also deftly shows how impossible it is to do it at scale with any sort of consistency without creating new problems. I won't ruin it for you entirely, but it does a brilliant job highlighting how as the scale increases, the only reasonable way to deal with things is to create a set of rules that everyone can follow. And then you suddenly realize that the rules don't work. You have thousands of people who need to follow those rules, and they each have a few seconds to decide before moving on. And as such, there's not only no time for understanding context, but there's little time to recognize that (1) content has a funny way of not falling within the rules nicely and (2) no matter what you do, you'll end up with horrible results (one of the examples in the podcast is one we talked about last year, explaining the ridiculous results, but logical reasons, for why Facebook had a rule that you couldn't say mean things about white men, but could about black boys). The most telling part of the podcast is the comparison between two situations, in which the content moderation team at Facebook struggled over what to do. One was a photo that went viral during the Boston Marathon bombings a few years ago, showing some of the carnage created by the bombs. In the Facebook rulebook was a rule against "gore" that basically said you couldn't show a person's "insides on the outside." And yet, these photos did that. The moderation team said that they should take it down to follow the rules (even though there was vigorous debate). But, they were overruled by execs who said "that's newsworthy." But this was then contrasted with another viral video in Mexico of a woman being beheaded. Many people in Mexico wanted it shown, in order to document and alert the world of the brutality and violence that was happening there, which the government and media were mostly hiding. But... immediately people around the world freaked out about the possibility that "children" might accidentally come across such a video and be scarred for life. The Facebook content moderation team said leave it up, because it's newsworthy... and the press crushed Facebook for being so callous in pushing gore and violence... so top execs stepped in again to say that video could no longer be shown. As the podcast does a nice job showing, these are basically impossible situations, in part because there are all different reasons why some people may want to see some content, and others should not see it. And we already have enough trouble understanding the context of the content, let alone the context of the viewer in relation to the content. I've been seeing a microcosm of this myself in the last few days. After my last post about platforms and content moderation around the Alex Jones question, Twitter's Jack Dorsey was kind enough to tweet about it (even though I questioned his response to the whole mess). And, so for the past week or so I've been getting notified of every response to that tweet, which seems pretty equally divided between people who hate Alex Jones screaming about how Jack is an idiot for not banning Jones and how he's enabling hate mongers, and people who love Alex Jones screaming about how Jack is silencing dissent and how he's a liberal asshole silencing conservatives. And no matter where on the spectrum of responses you may fall (or even totally outside of that spectrum), it should come down to this: we shouldn't be leaving these decisions up to Jack. Or Mark. Yes, those companies can and must do a better job, but what people fail to realize is that the job we're asking them to do is literally an impossible one. And that's why we really should be looking to move away from the situation in which they even need to be doing it. My solution is to move the controls outwards to the ends, allowing individuals and third parties to make their own calls. But there may be other solutions as well. But something that is not a solution is merely expecting that these platforms can magically "get it right." Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
As expected, Mozilla, 22 State attorneys general, INCOMPAS, and numerous consumer groups this week asked a U.S. appeals court to reinstate FCC net neutrality rules. The state AGs, led by New York Attorney General Barbara Underwood, filed a lawsuit back in January attempting to overturn the repeal, arguing that the decision will ultimately be a "disaster for New York consumers and businesses." Mozilla and a few other companies also filed suit, as well as consumer groups including Free Press and Public Knowledge. The AG's statement-- as well as the brief (pdf) filed with the U.S. Court of Appeals for the District of Columbia Circuit late Monday night--not only urges the court to restore the FCC's 2015 net neutrality rules, but asks the court to scuttle ISP and FCC efforts to block states from protecting consumers: "The government petitioners’ brief focuses on two critical issues: first, that the FCC’s order is arbitrary and capricious because it puts consumers at risk of abusive practices by broadband providers, jeopardizes public safety, and more; and second, that the FCC’s order unlawfully purports to preempt state and local regulation of broadband service." As we've noted previously, both Comcast and Verizon successfully lobbied the FCC to include language in its "Restoring Internet Freedom" order that attempts to "pre-empt" (read: neuter) state authority over broadband ISPs. ISPs like Charter (Spectrum) have already tried to use this language to wiggle out of state lawsuits over terrible service and false advertising, though the courts so far haven't thought much of the effort. ISPs have threatened to sue states that try to pass state level net neutrality laws in response to federal apathy, but those suits have yet to materialize. While Facebook and Google have been largely AWOL from the net neutrality fight this go round, INCOMPAS also jumped into the mix this week, issuing its own filing and statement getting to the crux of the issue, a lack of competition in broadband: "At its core, net neutrality is a competition issue. The FCC’s own order acknowledged that nearly 50 percent of consumers are living in a broadband monopoly. Yet, in the face of a brazenly uncompetitive marketplace, the FCC abandoned two decades of bipartisan consensus that ISPs should not block, throttle, implement paid prioritization, or otherwise harm online content by engaging in anticompetitive behavior. "The FCC also refused to consider extremely relevant findings from previous merger investigations involving ISPs that control access to almost 65 percent of consumers, which found that despite their public statements to the contrary, ISPs have the means and motive to interfere with online content they perceive as a threat." US telecom, a lobbying organization primarily funded and managed by AT&T, issued a statement responding to the filings that claimed the repeal of net neutrality was no big deal because the internet has yet to implode: "As this case winds its way through federal court, it is worth noting what has not happened since the FCC’s order: the internet as we know it is still thriving, growing, open and continues to spin on its axis. The predictions made by some that ISPs would engage in throttling, blocking, and anti-competitive prioritization, have not happened." Of course ISPs like AT&T have only behaved so far because they know this lawsuit could easily go badly, and they're not keen on adding any fuel to the fire before the court fight heats up (oral arguments should arrive sometime in the fall). All of today's filers are eager to show that the FCC not only violated agency procedures, but violated laws like the Administrative Procedures Act by basing such a stark reversal of policy on little more than fluff and nonsense. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Last week, Tim Cushing had a post about yet another out of control automated DMCA notifier, sending a ton of bogus notices to Google (most of which Google removed from its search engine index, since the sender, "Topple Track" from Symphonic Distribution was a part of Google's "Trusted Copyright Program," giving those notices more weight). The post listed many of the perfectly legitimate content that got removed from Google's index because of that rogue automated filter, including an EFF page about a lawsuit, the official (authorized) pages of Beyonce and Bruno Mars, and a blog post about a lawsuit by Professor Eric Goldman. But, seeing as we're getting towards September when the EU Parliament will again be voting on the big Copyright Directive proposal there, including Article 13, which will require mandatory filters or other automated tools for preventing copyright infringement, I thought it was important to do a separate post calling out one of the other pages taken down by Symphonic Distribution's out of control Topple Track. And that was that it got Google to de-index an article by Julia Reda, a member of the EU Parliament who has been leading the charge against the problematic provisions in the Copyright Directive proposal. Specifically -- and it would be hard to make this up if we tried -- Topple Track's automated filter got Google to de-index this blog post by Reda, in which she details the problems in Article 13 and how it will create mandatory censorship machines, that would likely lead to massive internet censorship of perfectly legitimate content. Let's repeat that so it can sink in. An automated filter helped take down an article by a Member of the EU Parliament, explaining how a (still being debated) proposal would create automated filtering systems that would take down all sorts of legitimate content. This feels like the sort of thing that should end all debate about just how damaging Article 13 might be (though, of course, it won't). When you force more mandatory filters onto the internet, these kinds of problems will only increase. Tons and tons of legitimate and perfectly legal content will get blocked. Last month, we posted a useful demonstration of just how much legitimate content would get censored under such a plan, but we never imagined that a perfect example would present itself just weeks later showing just how bad an idea Article 13 is. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
The US government isn't supposed to seek general warrants. And US judges aren't supposed to approve them. The Fourth Amendment requires a showing of probable cause to justify the intrusion by the government into citizens' lives and property. None of that appears to have happened in this case, brought to us by Thomas Fox-Brewster at Forbes. Back in March, as it investigated a spate of armed robberies across Portland, Maine, the FBI made an astonishing, unprecedented request of Google. The feds wanted the tech giant to find all users of its services who’d been within the vicinity of at least two of nine of those robberies. They limited the search to within 30-minute timeframes around when the crimes were committed. But the request covered a total space of 45 hectares and could’ve included anyone with an Android or iPhone using Google’s tools, not just the suspect. This wasn't just a demand for device IDs. The FBI -- as detailed in the warrant request [PDF] -- wanted everything Google had on hand. In addition, for any Google accounts linked to the accounts or identifiers listed in Attachment A by HTTP cookies, recovery email address, or telephone number, the Provider is required to disclose all records or other information regarding the identification of the account, to include full name, physical address, telephone numbers and other identifiers, records of session times and durations, the date on which the account was created, the length of service, the IP address used to register the account, log-in IP addresses associated with session times and dates, account status, alternative email addresses provided during registration, methods of connecting, log files, and means and source of payment (including any credit or bank account number). This is the sort of rummaging the Constitution is supposed to prevent. It's understandable the FBI needed some assistance tracking down robbery suspects, but this grab for a wealth of information about 45 hectares of people milling about minding their own business, isn't. And this sort of thing isn't limited to the FBI. As was covered here earlier this year, the Raleigh PD did the same thing at least four times during criminal investigations in 2017. In this case, hundreds of people would have been swept up in the dragnet. Certainly, some post-acquisition data sifting would have occurred to narrow it down to people/devices near the location of robberies when they occurred. But whatever happens after info is obtained cannot be used to justify the original acquisition. This warrant never should have been signed. If there's any good news coming out of this, it's that Google either didn't hand over the info requested or didn't have the info requested on hand. Google was expected to return the information on April 19, but didn’t. The FBI filed a motion to extend the time it had to get the data, which a judge granted. But Google never handed it over, despite another three FBI motions to extend. Though the prosecutor, assistant U.S. attorney Michael Conley, said a fifth motion would be filed if the data didn’t arrive, the government gave up the ghost earlier this month. A final returned warrant, dated August 6, simply stated: “Google did not provide information responsive to the warrant.” The reason for this is unknown. Google provided no comment to Forbes and Brewster-Smith points out the company never filed an objection to warrant itself. It's hard to believe Google didn't have any of this info on hand -- especially considering Google has collected location data even when device users have turned location services off. If nothing else, it should have had some data points on hand. Perhaps there was a lot of discussion behind the scenes between lawyers from both sides that never made it to court but did result in the FBI's please-don't-call-it-"general" warrant being denied. It also may be the FBI didn't press the issue because it didn't have much confidence in securing a favorable ruling from a judge higher-placed than the magistrate that signed the warrant request. The last thing the FBI wants is precedent set forbidding this sort of collection effort. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Clogged drain? Engine trouble? It helps to be able to see just where the problem is, which is where this handy Waterproof WiFi Wireless Endoscopic Camera comes in. With an 8-way adjustable LED, this 1080p HD camera can slip into the tight or dark spaces where fingers or eyes can't and send a feed right back to any device you're using via WiFi. It's important to diagnose a problem at the source. This camera will help you get there for 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 1 month ago on techdirt
Back in 2010, we posted an infographic from The Root showing just how little money that was spent on music actually went to the artist: In 2015, using a report put out by Ernst & Young, we put together our own graphics showing how much of streaming went to the actual artists: You may be noticing a pattern? Very little of the money being made actually goes to the artist. Now we have even more data on this. Citibank recently released a massive and incredibly thorough report on the entire music industry showing how and where the money is made. There's lots of interesting and useful information in the report, but the headline grabbing fact is that musicians end up with just about 12% of global music revenue. As I said, the report is incredibly thorough (and a really useful read if you want to get a sense of just how convoluted and complex the music business really is), but the key is that there was ~$43 billion spent on music in 2017. Approximately $25 billion of that went to everyone (outside of the labels) who helped make the music available: digital streaming services, retail stores, concert venues: That leaves $18.2 billion in money distributed out to the labels. But of that amount, only about $5 billion actually goes to artists, which means right around 12% goes to artists: Of course, it's especially notable that a significant chunk of that revenue going to artists actually comes from... live performances: This shouldn't be a surprise. Hell, we've spent the better part of two decades here talking about how artists need to embrace "scarcities" where they can make money, with live shows being a big part of that. And we kept having people from the recording industry scream about us saying that, but the numbers above don't lie. Citibank notes that one of the big reasons why live drives so much artist revenue? You don't have the same amount of monopolistic middlemen sucking the artists dry: If we divide artists’ incomes into four groups — Concerts, Music Platforms (Spotify, Apple, YouTube, Sirius, FM radio), Music Publishing, and Music Sales (CD, digital downloads) — it’s clear that concerts have, by a wide margin, contributed most significantly to the growth in an artist’s income. That’s because music labels don’t directly participate in concert economics. But, they do participate in the revenues collected by the various music platforms (like Spotify, Apple, Sirius and YouTube). That statement isn't 100% accurate, as many artists these days are signed to so-called 360 contracts, in which some of their live revenue also goes to the labels, but the general concept holds. In short, reading through this report, you see that the entire music ecosystem is a huge mess. And it's not hard to see how this developed. Basically with each new layer of innovation, rather than rethinking how we handle music and copyright, we simply slapped on another set of royalties and rights. That's why there are so many different kinds of royalties that have to be paid to do basically anything in music (synch rights, mechanicals, performance rights and more for each the sound recording and the composition). In the Citibank report they show this nice graphic, which I'd argue overly simplifies the reality: But each of these really seems to be a use of copyright to prop up another set of middlemen, and remove the effects of competition and innovation from ever touching them. And so we keep building this ever more convoluted house of cards, built on a giant mess of a copyright system, where massive inefficiencies mean that these propped up middlemen end up taking home most of the money. And, as the Citibank report nicely summarizes, thanks to the internet, artists could connect much more directly with fans and take home a lot more money: Oh, and the real kicker in all of this? For years, the record labels (and some musicians) have been screaming about how piracy is to blame for people no longer spending on music. Except, of course, that's hogwash. As we pointed out a few years back with our very own Sky is Rising report (and, to a lesser extent, with our Carrot or the Stick? report) there's still plenty of spending happening on music. Indeed, the Citibank report shows consumer spending at an all time high: In short, lots of money is still going towards music, but thanks to a ridiculous historical legacy of copyright law that kept piling on new rights, rather than cleaning out obsolete ones, there's a massive inefficient infrastructure whose only purpose basically seems to collect a bunch of the money for themselves, leaving 12 cents on the dollar for the actual artists. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Last week we noted how an FCC "oversight" hearing fell well short of anything actually resembling, well, actual oversight. Three FCC staffers had just been caught making up a DDOS attack and misleading Congress, the press and the FBI about it -- yet the subject was was barely even broached by lawmakers on either side of the aisle. It was another embarrassing example of the absence of anything resembling genuine accountability at the agency. Fortunately one subject that did get a little attention was the FCC's comically-terrible broadband maps, something we've covered at great lengths here at Techdirt. If you want to see our terrible broadband maps at work, you need only go visit the FCC's $300+ million broadband availability map, which is based on the Form 477 data collected from ISPs. If you plug in your address, you'll find that not only does the FCC not include prices (at industry behest), the map hallucinates speed and ISP availability at most U.S. addresses. For example, at my home in Seattle there's only one real ISP available: Comcast. But according to the FCC's data, I supposedly have seven broadband providers to choose from: Three of those options (CenturyLink DSL, CenturyLink fiber, and Startouch Broadband) don't actually exist at my address, something I've confirmed with company engineers. Another three are satellite broadband providers, whose sky-high latency, high prices and daily or monthly usage caps make the services barely qualify as real broadband. That again leaves just Comcast as my only fixed line broadband option (aka a monopoly) in Seattle, supposedly one of the bigger tech-oriented cities in America. If you plug your address into the FCC's map you'll likely see similarly-misleading results. As the FCC eyes where to deploy $4.5 billion in new rural broadband subsidies, more and more lawmakers are growing annoyed at the FCC's failure on this front. That includes Senator Jon Tester, who at last week's hearing proclaimed that the FCC's broadband maps "stink", and figuratively suggested that somebody (¯\_(ツ)_/¯) should have their "ass kicked" for the failure: "We've got to kick somebody's ass," he told the chairman. Pai joked that the FCC would take that as a figurative, rather than literal, congressional directive. Tester aligned himself with Democrat Commissioner Jessica Rosenworcel's comment that without good maps, a lot of money would be unnecessarily spent. Tester also said he was pleased Verizon was rolling out 5G in Indianapolis and other big markets, but said he was afraid they would never get it in Montana." While hearing attendees giggled and chortled about this figurative ass kicking somebody was supposed to receive, nobody actually addressed why this has been a problem for the better part of the last two decades. The real reason our broadband maps remain terrible is that telecom monopolies would prefer the public and lawmakers not receive an accurate picture of American broadband, lest somebody notice the mammoth deployment gaps and the countless American markets that lack any meaningful broadband competition whatsoever (especially at faster speeds). The source of the FCC's mapping data is the Form 477 data the agency collects from ISPs. This data has long been overly optimistic, and historically nobody really audits data provided by ISPs with a vested interest in downplaying deployment and competitive gaps. Worse, FCC policy dictates that the FCC deems an area "served" with broadband if just one ISP in a census tract has broadband. When somebody suggests that we should perhaps improve this data collection methodology, large ISPs like AT&T and Verizon pretty routinely lobby to prevent that from actually happening. For example, when the previous, Wheeler-run FCC suggested we improve this methodology (pdf), Verizon complained in a filing (pdf) that more accurate data would be too costly and difficult for Verizon to adhere to: "...the Commission must ensure that the costs of any new broadband data collection requirements do not outweigh the benefits. With respect to the Form 477, the Commission should avoid collecting data that is so detailed or voluminous that it is expensive for providers to produce, difficult for the Commission to process, or unhelpful to the public." Again though, ISPs like Verizon aren't really worried about cost, the benefits to the public or how much work FCC staffers would have to do to process it, they're simply worried that if we had accurate broadband maps, somebody might realize that U.S. broadband is a terrible hodgepodge of barely-motivated monopolies abusing angry and captive customers. Accurate data would highlight how Verizon has all but given up on upgrading or repairing aging DSL in countless states, and pricing data specifically would show how Americans pay some of the highest prices for the slowest service among all developed nations. Once Ajit Pai was appointed FCC head, efforts to shore up broadband mapping were quickly forgotten. And again, you'd think that somebody at last week's "oversight" hearing might have pointed this out. Instead, hearing attendees pretended that the United States' terrible broadband maps had simply mysteriously materialized out of the ether, a blameless phenomenon apparently caused by shadowy gremlins. In reality, it's long been abundantly clear why nobody wants to fix the problem: deep-pocketed ISPs by the name of Verizon, Comcast, Charter and AT&T don't want the problem fixed. If more accurate data further highlighted the massive problems in the U.S. broadband market, somebody might just get the crazy idea to actually fix it, and we certainly wouldn't want that. Instead, for several decades now, the FCC and U.S. lawmakers have happily donned their ISP-provided rose-colored glasses, then played dumb when their real world experience doesn't quite add up. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Governments -- which will process requests from citizens in statutorily-required time almost zero percent of the time -- never think the private sector moves fast enough. The government says "Jump" and then immediately asks why the jumping wasn't already in progress when it ordered the jumping to commence. Content that isn't even of the "I know it when I see it" variety isn't being taken down quickly enough for the EU. Various members have implemented their own 24-hour policies for the removal of everything from "hate speech" to "extremist content" -- both particularly difficult to classify immediately when context and newsworthiness must be considered. The EU Commission is reeling in the leash it has attached to US social media companies. It pitched the idea back in March but now appears to following through with its threats. The latest move towards impossibility is detailed by The Financial Times. Brussels plans to force companies including Facebook, YouTube and Twitter to identify and delete online terrorist propaganda and extremist violence or face the threat of fines. The European Commission has decided to abandon a voluntary approach to get big internet platforms to remove terror-related videos, posts and audio clips from their websites, in favour of tougher draft regulation due to be published next month. Here's the stipulation that will turn popular social media sites into EU-owned ATMs. Although details of the regulation are still being drawn up inside the commission, a senior EU official said the draft legislation was likely to impose a limit of one hour for platforms to delete material flagged as terrorist content by police and law enforcement bodies. Imagine imposing this sort of time limit on anything a government agency does. Imagine the outcry about the impossibility of serving citizens in a timely fashion. But nothing's too short for the private sector, which can set about nuking content indiscriminately just in case, rather than write checks to the EU on an hourly basis. The impetus is recent terrorist attacks, of course. Any amount of ridiculousness can be excused in the name of public safety and national security, even if the resulting mess has almost zero impact on either of those two concerns. The incumbent social media sites already have algorithms and live moderation teams addressing questionable content. And it's still not enough for insatiable government officials. Entrants into the market may as well not even bother. They cannot hope to stay alive, much less compete, if governments are going to hold them directly responsible for content posted by their users. Then there's the fact that burying stuff as soon as it shows up does little to aid investigations or the pursuit of terrorists. Ask anyone who's witnessed the damage done to law enforcement efforts by SESTA/FOSTA -- a law touted as a crushing blow to human trafficking. All it's done is make traffickers harder to find by forcing them to utilize less visible platforms and communication methods. The same thing is happening here and every time "terrorist content" is nuked, it makes martyrs of villains and proves to acolytes and new recruits the West is out to get them. The EU would be better off letting the voluntary measures already in place go to work. The press for one-hour turn time reeks of rent collection, not honest concerns about public safety. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
We've often made the point in the past that much of the trademark legal strife and bullying that occurs throughout the country ought to be squarely blamed on a USPTO that can't be bothered to put much thought into the trademarks it approves. All too often, the Trademark Office acts as a mindless rubber stamping facility, pushing through the application paperwork without thinking about the broader consequences of its approvals, nor the legal minutia involved into what makes a term a valid trademark. That bureaucratic lethargy is precisely how you get trademark bullies wielding trademarks that should never have been granted. And, because trademark bullying generally works, it's rare that anyone outside the USPTO is actually forced to clean up this mess it created. But, on rare occasions, sanity puts a win up on the board. Such is the case with Express Homebuyers USA of Virginia, which defeated WBH Marketing Inc.'s trademark suit in which the latter claimed infringement based on its registered trademark for the phrase "We Buy Houses." In a thorough and well-reasoned decision, Judge T.S. Ellis, III, of the Eastern District of Virginia, concluded that the federal trademarks “We Buy Houses” and “Webuyhouses.com” are generic, are not protected under trademark law, and therefore should be canceled. The court found that the phrase “we buy houses” has been used in the real estate industry since as early as 1898 in millions of newspapers and advertisements. That evidence, coupled with other evidence and the testimony of Express Homebuyer’s CEO Brad Chandler, was “overwhelming and unrefuted.” Finding that the marks are generic and should be canceled was “logical” according to Judge Ellis because “allowing one member [of the real estate industry] to have exclusive use of the phrase ‘we buy houses’ would be the equivalent of allowing a professional football team to trademark ‘we play football’ or a fast-food chain to trademark ‘we sell burgers,’” which are phrases that should be available for all to use. First, if the name T.S. Ellis is ringing in your ears, yes, he's the judge presiding over the Paul Manafort trial. That isn't relevant to this case, other than being an encouraging sign that the judge overseeing Manafort's case has some grasp of common sense. Beyond that, this case should be a wonderful counterexample for any proponents of the USPTO's staff when it comes to the job they do in approving trademarks. To approve "We Buy Houses" for the real estate market as a trademark requires such a dearth of cognition as to undermine every other bit of work that office does. As Ellis points out, allowing one entity in real estate to lock up the phrase would enable the exact kind of bullying that WBH Marketing subsequently engaged in by going after Express Homebuyers for daring to say that it too, yes, buys homes. If the ruling had gone the other way, it would have been an unmitigated disaster for the real estate industry writ large. The ruling is significant because, if Mr. Brandt’s company prevailed, thousands of real estate investors across the country could have been prohibited from using the vitally important phrase “we buy houses” in their marketing and advertising materials. Having concluded that the trademarks “We Buy Houses” and “Webuyhouses.com” were generic and should be canceled, Judge Ellis also dismissed WBH Marketing’s claim that Express Homebuyers infringed on the trademarks. Judge Ellis thus threw out WBH’s multimillion dollar damages claim against Express Homebuyers. This country is practically starving for this kind of result for trademark bullies. Too often these bullies are allowed to cut and run from trademark suits when it's clear their own trademarks are in danger of invalidation. Why in the world WBH Marketing elected to let this thing get to a ruling is completely beyond me, but invalidating bad trademarks that the USPTO is only too happy to approve can't be fully a function of bullying hubris. But for this case, at least, the right outcome was achieved. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Turkish president Recep Erdogan figures the best critic is a silenced critic. Determined to "earn" the respect of people worldwide, Erdogan and his government have engaged in unprecedented censorship. This goes far beyond the punishment of its own citizens. Erdogan has tried to secure charges and prosecutions from other governments against their own citizens for having the temerity to not take him as seriously as he takes himself. Erdogan takes down newspapers and platforms with equal aplomb. He does this to stop things like the following from circulating: It doesn't work, of course. Nothing gets censored worldwide and whatever censorship hits home can be circumvented. But of all the internet targets, Twitter is Erdogan's absolute favorite. The Committee to Protect Journalists has done the math. Its excellent article on Erdogan's censorship activities makes it clear that all other countries are merely pretenders to the throne when it comes to talking Twitter into doing their dirty work. Over 1.5 million tweets have been withheld in Turkey by Twitter, thanks to Turkish government demands. Frequently targeted by removal requests are citizens who would normally be afforded extra speech protections in countries not run by a thin-skinned thug. And an American company playing ball with an authoritarian doesn't leave much room for recourse. When CPJ reviewed a Buzzfeed News database of over 1,700 accounts withheld in one or more countries, along with court orders uploaded by tech companies to Harvard University's Lumen database, tweets, Twitter lists, and news reports, it was able to identify at least 59 Twitter accounts that belong to journalists and media outlets censored using the CWC tool in Turkey. As of late July, those 59 accounts had a combined following of over six million, in a country of about 11 million Twitter users. Journalists whose accounts have been censored by CWC [country withheld content]requests told CPJ that Twitter is inconsistent with its compliance with such requests and complained about the lack of remediation options. Journalists tweeting about the decline of press freedoms in Turkey are seeing their tweets removed by a compliant Twitter. And this is all Twitter has to say about its compliance in the decline of press freedoms in Turkey: Colin Crowell, Twitter's head of global public policy, told CPJ, "If [we] don't use CWC, then the alternative is to remove [the content] globally [then] nobody can see it." But that simply isn't true. Twitter has to know there's a third option: no removal at all. Even if the request is lawful in Turkey, Turkey's speech laws are terrible. Twitter doesn't have to make things worse by letting the Turkish government steamroll critics via removal requests. Sure, that means it might lose access to an entire country, but it shouldn't be so willing to be an extension of an abusive government. It's not just a Twitter problem. Google's decision to help build the Chinese government a censored search engine is unacceptable, no matter how many more millions of users Google might reach. Turkey's government may drive the content removal business on Twitter, but there's censorship everywhere from authoritarian regimes being aided by US companies that should act as a bulwark against tyranny. At the very least, there should be constant pushback against demands like these, rather than acquiescence under the disingenuous theory that blocking content worldwide is the only alternative. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Recently, Attorney General Jeff Sessions attended the Eighth Circuit Judicial Conference. Considering he was speaking to members of the judiciary, it seems odd he would have used this occasion to deliver a rant against the judicial system. As a prosecutor, Sessions greatly benefited from the system he now maligns. The justice system barely enters the lives of those being prosecuted. An adversarial system designed to provide the accused with due process is rarely engaged. The outcome is predetermined, except for arguments over minor details. As the Supreme Court wrote in a 2012 decision, the criminal justice system is a downhill slope for prosecutors who rarely need more than a light shove to put someone behind bars. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. [...] The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Having been a beneficiary of a barely-engaged court system for so many years (and now overseeing more beneficiaries as the head of the DOJ), you'd think Sessions would be grateful for all the years the courts rendered themselves pretty much invisible. Instead, Sessions wants to complain about a supposedly unfair system that keeps acting as a check against the Executive Branch… you know, exactly what it's supposed to be doing. I am the top lawyer for the Executive Branch. It is a co-equal branch. It too is entitled to proper respect from the courts. Our Assistant U.S. Attorneys, advocating for legal positions—even if the judge may not agree—are due proper respect. Judges are not sent from Olympus. They are not always correct. Indeed, our appeals in a number of cases have borne fruit in whole or in part. Some of the erroneous rulings have been quite costly to the taxpayers, have delayed executive action, and have engendered criticism of the President, and the Department of Justice, in the media and various groups. In Sessions' mind, "co-equal" does not mean counterbalanced or of equal power. Sessions' adheres to an Animal Farm version of equality, where the Executive Branch is more equal than the court system he feels isn't handing out enough respect. This is a truly bizarre -- and somewhat frightening -- take on the legal challenges filed against Trump's executive orders. Some challenges have been denied. Others have been granted. Injunctions have been issued, with a few of those rolled back after an appeal. This is the way the judicial system is supposed to work, but Sessions wants to hate on it for functioning exactly how it's designed to. We have a government to run. It is not the duty of the courts to manage this government or to pass judgment on every policy action the Executive Branch takes. Ah, but it is the duty of the courts to "manage the government" or "pass judgment on policy actions." If policies are challenged in court -- by citizens -- the court has to take the case. Just because Sessions doesn't like some of the outcomes doesn't mean the system isn't working. But it is plainly disingenuous to claim judges have no business passing judgment. JFC, it's right in the name. For all the talk about "co-equal," it's clear Sessions -- as the head of the goddamn Department of Justice -- feels the justice system has too much power. We are also defending the constitutional structure of the federal government against nationwide injunctions—orders by a single district judge that block the entire Executive Branch from enforcing or implementing a statute, regulation, executive order, or policy. You could also call them “non-party injunctions” or “global injunctions”—because they apply across America or even the world, and grant relief, whether they want it or not, to those who are not parties to the case. Scholars have not found a single example of this type of remedy in the first 175 years of the Republic. But the Executive Branch has been hit with 22 in less than two years’ time in office. Wow. That sures sounds like the judiciary has it in for the President. Let's see if this unprecedented thing has any precedent… This goes beyond politics. This has been a problem for administrations of both parties. Until President Trump, the President with the most limitless injunctions was President Obama. Before him, it was President Clinton. That's Sessions undercutting his own narrative. What this looks like isn't some grotesque misuse of judicial power. No, administrations regularly setting new injunction records indicates to me the Executive Branch has routinely overstepped its Constitutional boundaries before being reined in by courts -- courts designed from the ground up to act as check against overreach by other branches of the government. The very thing he complains about -- being "held back" by the judicial branch -- he claims to celebrate towards the end of his prepared remarks. Our Constitution has governed us from the horse and buggy age to the digital age. Ours is the oldest and most resilient constitution in the world. We don’t need conservative judges or liberal judges. As Chief Justice Roberts testified, we just need judges to adjudicate disputes, calling the balls and strikes as they are without taking sides in the game. But we must be vigilant to our Constitution's design and to its most central feature: the separation of powers. That is what the American people rightly expect from those who enforce the laws of the United States. Let's be vigilant to protect the separation of powers, says Sessions, as he suggests the judicial branch might need some trimming if it won't stop standing in the way of questionable executive orders and policies. Good lord. You'd expect this sort of nonsensical drivel from internet randos, not the head of the DOJ. Sessions is like anyone else: the courts are working when they deliver decisions he likes and a complete failure when they don't. That's fine. And that's expected, especially when partisan agitation seems to be at an all-time high. But that's not the sort of thing you tell a judiciary conference. That's the crap you save for preaching to the converted. The real ugliness, though, is this: Sessions obviously feels the courts should serve the Executive Branch, no matter how many times he says he values the system of checks and balances that prevents the judiciary from being a subsidiary of the presidential administration. Fortunately, Sessions only has the power to bitch about it. If he could do any real damage to the court system itself, he'd be dangerous. This mini-rant shows Sessions is a small man with a small mind and a willing participant in spreading the Trump Administration's narrative of victimization -- something painfully embarrassing to observe when its being issued by the people leading one of the most powerful nations in the world. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Phew. After a surprising (and very, very weird) ruling in a California state court earlier this summer, that suggested that a well known racist might have a legitimate legal case against Twitter for kicking him off their platform, an appeals court has quickly and thoroughly corrected that error. To understand what happened here requires a little bit of background, so let's dig in. Back in March, we wrote about a silly case filed by noted racist (he prefers "race realist" or "white advocate" but come on), Jared Taylor, who had been kicked off Twitter. Taylor sued, claiming that Twitter kicking him off the platform violated various rights. As we noted at the time, the case had no chance, and would be tossed out on CDA 230 grounds, as the law makes it clear that platforms cannot be liable for their moderation choices. Indeed, the whole reason CDA 230 was first created was in response to a horrible court ruling that said moderation choices could make you liable. CDA 230 was a correction to that mistaken court. And in the two decades since then we've seen all sorts of attempts by people to argue their way around CDA 230 and nearly all of them fail, and thus we expected this one to fail easily. As I noted in that original post, I had spent some time going back and forth with some of Taylor's lawyers, who seemed surprisingly uninformed about CDA 230. So, I will admit that I was a bit surprised back in July when the court refused to dump the case. While the official ruling came in July, the Judge's rational was laid out at a hearing in June, in which he did agree to dump some of the claims, but kept one claim: an "unfair competition" claim. The reasoning was... very, very strange. Basically, the court claimed that under California law, Taylor could claim that Twitter's terms of service were "unconscionable" because they said the site could kick you off for any reason. It is true that California code 1670.5 says that "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract." But how is Twitter's terms of service unconscionable? During the hearing, Twitter's lawyers seemed reasonably flummoxed that this was even being brought up and asked for more time to go back and research and brief the issue. And they were right to be confused. Because there's never been any other court finding that a basic online terms of service that says the site has the final word in deciding who can use the platform is "unconscionable" -- and that's partly because of CDA 230, that makes it clear the platform has the final say, and state law can't interfere with that. But here, the judge ignored all of that and suddenly decided that the "we can kick you off for any reason at all" clause must be both outside the purview of CDA 230 and possibly unconscionable. From the hearing (Carome is Twitter's lawyer, Patrick Carome, Peters is one of Taylor's lawyers, Noah Peters:): MR. CAROME: What are the unconscionable provisions that Your Honor possibly sees here? I -- THE COURT: I can tell you what's alleged, and I believe adequately so, something to the -- I could get the first amended complaint to quote it exactly, but something to the effect that Twitter can, at any time, for any reason, or no reason, pull any account. Have I stated that correctly? MR. PETERS: Yeah; that's right. MR. CAROME: There is language to that effect, Your Honor; I would submit that that's not... remotely unconscionable for a on-line platform, such as Twitter, which is completely free, given to the world for free, that requires users -- it has a gating -- THE COURT: And -- MR. CAROME: -- requirement, and let's users in under certain conditions, it is absolutely permissible and, indeed, subject to First Amendment rights and editorial decision that a platform that is engaged in the distribution of speech may, for any reason, just like a newspaper editor could, for any reason, choose not to run a letter to the editor that it receives. That's not unconscionable; that's not remotely unconscionable; that's the way systems work. That's the way -- and so I would certainly -- THE COURT: So let me explain to you why I see differently and the rules that I believe I am bound by in making my determination: First, I am required to liberally construe the complaint. It's right there in the California Code of Civil Procedure. And, if you want, I can cite that for you, as well; Second, I need to draw whatever reasonable inferences I can draw in favor of the pleading that is being challenged. And in doing both of those things, and liberally construing the complaint, and in drawing reasonable inferences in its favor, I envision or I believe that the complaint alleges something along the lines of: Twitter is the largest communication source in the world. And the way to get your word out and the way to be heard in the modern era, particularly with regard to such important matters as being able to petition the elected leaders and others who are involved in government, for redress, is to be able to be on the Twitter platform. And for Twitter to know that and nonetheless impose language, as it did here, an otherwise prolix document that's not highlighted, and done on an adhesion contract basis, and on a take it or leave it basis, it is procedurally unconscionable in a large measure. There's more, but that was the crux of it. And, I should note that this is crazy. Part of the reason I didn't even blog about it at the time was that it was such a crazy ruling, completely divorced from basically all precedent on how online platforms manage their services, that it seemed inevitable that it would be overturned. What's surprising is just how quickly it was overturned. First noted by Eric Goldman in a detailed post over the weekend, the appeals court seemed so perplexed by the judge's ruling that it smacked it down without even hearing from Taylor's lawyers, more or less saying that ruling was so egregiously off-base that it wouldn't matter what Taylor's lawyers had to say. Of course, the Appeals Court is a bit nicer in how it put it, and basically tries to suggest that maybe the reason the court got it so wrong was because it had not yet read the important Hassell v. Bird ruling that came out in between the Taylor hearing and the official ruling by the judge. The Hassell ruling reinforced how broad CDA 230 was for internet platforms, and how they are given wide latitude in determining how to manage their own platforms, including editorial choices on what to keep up and what to take down. So, here the appeals court basically says to the lower court "you totally screwed this up, but maybe because you hadn't yet read this latest ruling" (leaving out that the Hassell ruling more or less reconfirmed what dozens of other courts have said): It appears respondent superior court erred in issuing its July 10, 2018 order overruling in part petitioner's demurrer to the first amended complaint of real parties in interest. We recognize, however, that when respondent issued its order, it may not have had the benefit of the analysis of Hassell v. Bird..., which the California Supreme Court had filed on July 2. It then goes on and presents a nice thorough analysis of why CDA 230 clearly protects Twitter in this regard and the entire case should be dismissed. It goes through the whole history of the case, along with some history of CDA 230, listing out a bunch of cases that make it clear that internet platforms can kick people off. And then explains why the lower court was simply wrong to think that an unfair competition claim is pre-empted by CDA 230: That real parties allege a cause of action under the UCL does not place their claim outside the scope of immunity provided by the CDA. (See Cross, supra, 14 Cal.App.5th at pp. 196, 208; Caraccioli v. Facebook, Inc. (N.D. Cal. 2016) 167 F.Supp.3d 1056, 1064.) Like the plaintiffs in Cross, real parties claim they are seeking to hold petitioner liable for statements or promises made in its TOS and Rules. (See Cross, supra, at pp. 200-201, 206-207.) But evaluating whether a claim treats a provider as a publisher or speaker of user-generated content, 'what matters is not the name of the cause of action'; instead, what matters is whether the cause of action inherently requires the court to treat the defendant as the "publisher or speaker" of content provided by another.' " (Id. at p. 207, quoting Barnes, supra, 570 F.3d at pp. 1101--1102.) Here, the duties real parties allege Twitter violated derive from its status or conduct as publisher because petitioner's decision to suspend real parties' accounts constitutes publishing activity. (Cohen v. Facebook, Inc., supra, 252 F.Supp.3d at p. 157; Fields v. Twitter, Ina, supra, 217 F.Supp.3d at pp. 1123-1124.) As Hassell reiterated, "lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions--such as deciding whether to publish, withdraw, postpone or alter content--are barred.'" (Hassell, supra, 5 Cal.5th at p. 536.) Therefore, let an alternative writ of mandate issue commanding respondent San Francisco County Superior Court, in Jared Taylor, et v. Twitter, Inc., San Francisco County Superior Court case No. CGC18564460, to set aside and vacate its order of July 10, 2018 order overruling part in part petitioner's demurrer to the first amended complaint of real parties in interest, and to enter a new and different order sustaining petitioner's demurrer in its entirety; or, in the alternative, to appear and show cause before Division One of this court why a peremptory writ of mandate should not be granted. Basically, toss this case, or come back to the appeals court and explain in great detail how this case somehow goes against the rulings in every other case. Taylor's lawyers indicate that they'll continue fighting back, but I stand by my original prediction in this case that it's a lost cause. Separately, I will note that the weird ruling back in June/July in this case, set off a bunch of people online who believed it showed -- as some have been ridiculously claiming -- that moderating platforms somehow makes you lose CDA 230 protections. I do wonder how they'll all react to this quick action on appeal... If what's happening on Twitter is anything to go on, they're going to ignore it. After all, over the weekend I saw at least one tweeter still pointing to the June decision to "prove" that kicking people off of Twitter might violate the law. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Animatron Studio gives you the tools you need to create animations and graphics that will engage your audience, even if you have zero design or coding technical know-how. You can make mobile-friendly, entertaining animations in an intuitive, collaborative environment right in your browser. With Animatron, you've got the power to reach, engage with, educate, and connect to millions in new and unique ways. It's on sale for $50. 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 1 month ago on techdirt
The DOJ's war on encryption continues, this time in a secret court battle involving Facebook. The case is under seal so no documents are available, but Reuters has obtained details suggesting the government is trying to compel the production of encryption-breaking software. The U.S. government is trying to force Facebook Inc to break the encryption in its popular Messenger app so law enforcement may listen to a suspect’s voice conversations in a criminal probe, three people briefed on the case said, resurrecting the issue of whether companies can be compelled to alter their products to enable surveillance. The request seeks Facebook's assistance in tapping calls placed through its Messenger service. Facebook has refused, stating it simply cannot do this without stripping the protection it offers to all of its Messenger users. The government disagrees and has asked the court for contempt charges. Underneath it all, this is a wiretap order -- one obtained in an MS-13 investigation. This might mean the government hasn't used an All Writs Acts request, but is rather seeking to have the court declare Messenger calls to be similar to VoIP calls. If so, it can try to compel the production of software under older laws and rulings governing assistance of law enforcement by telcos. A federal appeals court in Washington D.C. ruled in 2006 that the law forcing telephone companies to enable police eavesdropping also applies to some large providers of Voice over Internet Protocol, including cable and other broadband carriers servicing homes. VoIP enables voice calls online rather than by traditional circuit transmission. However, in cases of chat, gaming, or other internet services that are not tightly integrated with existing phone infrastructure, such as Google Hangouts, Signal and Facebook Messenger, federal regulators have not attempted to extend the eavesdropping law to cover them, said Al Gidari, a director of privacy at Stanford University Law School’s Center for Internet and Society. Calls via Messenger are still in a gray area. Facebook claims calls are end-to-end encrypted so it cannot -- without completely altering the underlying software -- assist with an interception. Regular messages via Facebook's services can still be decrypted by the company but voice calls appear to be out of its reach. Obviously, the government would very much like a favorable ruling from a federal judge. An order to alter this service to allow interception or collection could then be used against a number of other services offering end-to-end encryption. It's unknown what legal options Facebook has pursued, but it does have a First Amendment argument to deploy, if nothing else. If code is speech -- an idea that does have legal precedent -- the burden falls on the government to explain why it so badly needs to violate a Constitutional right with its interception request. This is a case worth watching. However, unlike the DOJ's very public battle with Apple in the San Bernardino case, there's nothing to see. I'm sure Facebook has filed motions to have court documents unsealed -- if only to draw more attention to this case -- but the Reuters article says there are currently no visible documents on the docket. (The docket may be sealed as well.) There is clearly public interest in this case, so the presumption of openness should apply. So far, that hasn't worked out too well for the public. And if the DOJ gets what it wants, that's not going to work out too well for the public either. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
So much for my powers of prediction. After a Florida newspaper was hit with a request for contempt charges for publishing parts of a document a local school board tried (but failed) to redact, I suggested the court would side with the paper and say a few strong words about proper redaction techniques and the First Amendment. I could not be more wrong. Broward Circuit Judge Elizabeth Scherer said the newspaper flouted her order that portions of a school district report about Cruz should remain shielded from the public. In the future, she declared, she will consider listing exactly what the newspaper can and cannot print. So much for the vaunted First Amendment. While judges are welcome to deliver instructions about what can or cannot be printed (provided they don't mind violating the First Amendment 90% of the time), there's no reason to hand out these instructions to document recipients in public records lawsuits like this one. That's why redaction exists: so public entities can fulfill their public records obligations while withholding information that qualifies for exemptions or to comply with privacy laws. If the respondent screws up the redaction, there's no legal obligation for new agencies or any other records requester to pretend what wasn't supposed to be accessible isn't accessible. The burden is on the government to perform its job correctly. No laws were violated by the Sun Sentinel's discussion of parts of the document that were supposed to be withheld. It acquired the document lawfully -- in fact, as a result of this court's order -- and discovered the redaction technique used didn't actually redact anything. Parts of what was withheld by the school shows the Broward County School Board mishandled some of its interactions with the Parkland shooter. This obviously was of great interest to the public, so there's no question that part weighs heavily in the favor of the paper's First Amendment rights. What's worse is the judge stated in court the Sun Sentinel did something devious to expose the supposedly-redacted information, when it was actually the Broward County School Board that failed to do its job properly. “You all manipulated that document so that it could be unredacted,” Scherer said. “That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It’s no different.” Um… OK. What the hell does this even mean? Would she be coming down on a public records recipient who was handed the wrong documents or entire pages that were supposed to be withheld? Would she have harsh words for a recipient who received someone else's requested documents thanks to a bureaucratic screw-up and published those? Here's how Judge Scherer thinks the First Amendment should be applied to public records: “From now on if I have to specifically write word for word exactly what you are and are not permitted to print – and I have to take the papers myself and redact them with a Sharpie … then I’ll do that,” she said. Whew. Sounds like prior restraint. The only entity that should be restrained is the government in public records lawsuits, and only what's absolutely necessary to be withheld should be withheld. It's not up to the judge to hand out a line-by-line order on publication to recipients. The restraint should target the government and no one else. If the government screws up, that's on it, not those who've lawfully acquired the documents. Given this terrible take on the First Amendment, I can offer a much better prediction this time around: the Sun Sentinel's anti-SLAPP motion against the Broward County School most likely will not be entertained by this court. Whatever was said here is the judiciary standard in Judge Scherer's court. And it sets an extremely low bar for government agencies who think others should be yelled at for the government's failures. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
After fighting for years, it appears that Paul Hansmeier realized he was cooked. On Friday, he pleaded guilty to various fraud and money laundering charges related to his copyright trolling under the Prenda name. Hansmeier, of course, was one of the two "masterminds" (and I use that term loosely) behind Prenda along with John Steele, who pleaded guilty last year, and was set to be a witness against Hansmeier, who came up with some colorfully ludicrous theories to try to talk his way out of these charges. If you don't recall, Hansmeier and Steele started out as garden variety copyright trolls, suing tons of people and shaking them down for money, but they kept expanding the scam, to the point that they were setting up bogus honeypots with content they themselves uploaded to get IP addresses to shake down (with hilariously dumb attempts to cover up that it was them). They also set up fake shell companies as their own "clients" which didn't go over well in court. That's not even getting to the way that Steele and Hansmeier were clearly the beneficiaries of these shakedowns, or the fact that they tried to hide the money. And do we even mention the outright lying in court? One of the most incredible things in watching the whole Prenda saga over the years was just how much Steele and Hansmeier seemed absolutely 100% convinced that they could talk their way out of everything. No matter how bad it was getting, they would scream to the heavens about how everyone was lying about them and that eventually they'd be shown to be innocent. Yet now they've both pleaded guilty. Hansmeier's plea agreement has him pleading guilty to mail fraud and wire fraud, along with conspiracy to commit money laundering. The "deal" is that prosecutors won't charge him with even more crimes that they've since uncovered "including conduct associated with the defendant's bankruptcy proceedings." The agreement lays out much of the scam in pretty clear terms (the P.H. in the agreement appears to be Paul's brother Peter Hansmeier who there are differing opinions about his level of involvement in the scam, P.D. is obviously Paul Duffy, who was another bumbling part of the scam, and who died a few years back of "chronic ethanolism" as all of this was unraveling): Defendants Uploaded Clients' Movies to File-Sharing Websites Beginning no later than in or about April 2011, HANSMEIER and Steele caused PH. to upload their clients' pornographic movies to BitTorrent file-sharing websites, including a website named the Pirate Bay in order to entice people to download the movies and make it easier to catch those who attempted to obtain the movies. As defendants knew, the BitTorrent websites to which they uploaded their clients' movies were specifically designed to aid copyright infringement by allowing users to share files, including movies, without paying any fees to the copyright holders. Defendants Obscured Their Involvement in the Lawsuits In or about November 2011, in order to distance themselves from the copyright infringement lawsuits and any potential fallout, defendants caused Prenda Law to be created. Although P.D.--an attorney located in Chicago--nominally owned Prenda Law, HANSMEIER and Steele exerted defacto control over Prenda Law, including the primary direction of its employees and dispensation of its finances. Additionally, beginning in or about 2011, defendants created various entities they surreptitiously controlled, including AF Holdings LLC, Ingenuity 13 LLC, Guava LLC, and LW Systems LLC. The defendants used these entities as plaintiffs in copyright infringement lawsuits the defendants filed against individuals who had downloaded movies the defendants had uploaded to BitTorrent websites. Defendants Filmed Their Own Pornographic Movies and Uploaded Them to File-Sharing Websites Beginning no later than in or about May 2012, defendants participated in filming pornographic movies. On at least three separate occasions in Chicago, Miami, and Las Vegas, HANSMEIER and Steele--at times assisted by P.D., M.L., and P.H.--contracted with adult film actresses and produced multiple short pornographic films. HANSMEIER and Steele then caused Ingenuity 13 to obtain copyrights to the films, which bore names such as "Five Fan Favorites" and "A Peek Behind the Scenes at the Show." Shortly after filming the movies, HANSMEIER instructed P.H. to upload the movies to file-sharing websitessuch as the Pirate Bay in order to catch, and filed lawsuits against, people who attempted to download the movies. Defendants Concealed Actions from Courts After uploading their clients' and their own pornographic movies to BitTorrent who purportedly downloaded the movies did so without "authorization" or "consent" from the copyright holder or its agents and that their client had suffered "damages." After filing the initial complaint in these lawsuits, defendants then filed ex parte motions seeking to obtain early discovery regarding the identities of the subscribers associated with the IP Addresses used to download the movies, and therein represented to the court that the unnamed defendants downloaded the movies without authorization. In each of these lawsuits and the accompanying ex parte motions for early discovery, HANSMEIER and Steele concealed from the court that they: (a) uploaded their clients' movies to BitTorrent websites, (b) filmed their own pornographic movies in order to upload them to BitTorrent websites, and (c) owned and controlled the plaintiffs and thus had a significant personal stake in the litigation. HANSMEIER and Steele knew that these facts were material to the courts' decisions whether to permit early discovery. The courts, relying on the defendants' lawsuits and motions, granted early discovery and thereby authorized the defendants to subpoena internet service providers for subscriber information associated with the IP Addresses set forth in the motions and/or civil complaints. After obtaining the subscriber information associated with the IP Addresses, the defendants sent letters and made phone calls to the subscribers seeking settlement payments in exchange for dismissing the lawsuit against those subscribers. Then there's the discussion about the CFAA related scam that Prenda tried to pull: Hacking Allegations Beginning in or about October 2012, HANSMEIER and Steele caused lawsuits to be filed, generally on behalf of Guava LLC, falsely alleging that certain named defendants had "hacked" into their client's computer systems. In fact, and as the defendants knew, the defendants named in these lawsuits had been caught downloading one of HANSMEIER and Steele's clients' movies from a file-sharing website. These "defendants" had agreed that, in exchange for HANSMEIER and Steele waiving a settlement payment, the defendant would be sued and permit HANSMEIER and Steele to seek discovery about his/her alleged co-conspirators. HANSMEIER and Steele brought several lawsuits falsely alleging that these defendants had participated in hacking Guava's computers in order to attempt to obtain authority from the court to issue subpoenas to intemet service providers. There's much more in there as well. For what it's worth, kudos should be directed to the person behind the Fight Copyright Trolls website, who really was the first to not only call out Prenda's bad behavior, but who figured out many of the details of the scam way before anyone else did. I'll admit that some of that site's early reporting seemed so outlandish that I was initially skeptical that it could possibly be accurate. But as more and more evidence came to light, basically everything that FCT initially suggested turned out to be incredibly accurate. Also, many kudos to the various lawyers who helped bring Prenda down in court in a variety of different cases, which helped highlight the details of the scam. I know I'm forgetting some, but Morgan Pietz, Nick Ranallo, Dan Booth, Jason Sweet and Erin Russell put in quite a lot of effort in unraveling Prenda in court. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
This week, our first place winner on the insightful side is Mason Wheeler with a response to Nintendo's takedown of major ROM sites and one professor's comments about the importance of libraries and archives: This is exactly right, and it reaches well beyond games; it's a massive problem throughout the software industry. Because we have a copyright regime that incentivizes closed-source software distribution, we end up with essentially the only medium in all of the creative arts or engineering disciplines where the development techniques of a masterpiece cannot be studied because they can't be known. Instead of Foddy's university libraries, imagine a world in which the only literature students who could study and learn from the techniques of Hemingway's work were those who went to Hemingway University or went on to get a job at HemingCorp, which would have his work available but lacked access to Mark Twain, Jules Verne and Victor Hugo. This sounds absurd, but it's exactly the state of software development today, and a big part of the reason why we have so many quality problems in computer programs. Contrast this with actual literature, where the ability to read and analyze the words that went into a book is inherent in the medium. I'll always remember something I heard bestselling author Brandon Sanderson say after someone compared his work favorably to that of Robert Jordan: "the only reason you're saying that is because I had an unfair advantage. I was able to start out my writing having read and learned from the work of Robert Jordan, and he wasn't." In second place, we've got an anonymous response to a commenter who criticized the often-used "Copyright Duration and the Mickey Mouse Curve" graph on the basis that "correlation is not causation": Correlation is not causation. Causation, though, is causation. Since 1990, The Walt Disney Company had lobbied for copyright extension.[12][13] The legislation delayed the entry into the public domain of the earliest Mickey Mouse movies, leading detractors to the nickname "The Mickey Mouse Protection Act".[4] For editor's choice on the insightful side, we start out with a comment from Ninja about the oh-so-baffling popularity of Kodi boxes: Maybe if we had good, reliable services that offered content without fragmentation, with ease of access, no bullshit windows and that could be used offline in conjunction with such apps if the user wanted? I mean, why do they like to leave money on the table that much? Next, it's a response from James Burkhardt to a comparison between our defense of Section 230 and the DMCA to telcos' comments about local loop unbundling: I would argue that you miss the detail on this situation. Namely, when discussing the burden of Local loop unbundling, telecos use broad language that is short on detail, always highlighting the 'burden', but never explaining what that burden is. Never explaining the scenario in which the presence of this rule makes difficult or impossible moves that are beneficial to consumers. Because there aren't any. Even in a world of competition, I have been unable to find anyone who supports repealing local loop unbundling who can articulate the 'burden' it places on incumbents. Contrast this with the support SEC 230, where Techdirt has repeatedly noted how it A) prevents a disincentive to moderation, allowing sites to moderate without fear that moderation will create liability (something that happened prior to SEC 230) and B) puts the focus for illegal or Tortuous conduct on the entities responsible, which can include the website, but often does not. Support for SEC 230 comes out of articulable concerns about the internet post repeal. A better contrast comes in the DMCA and calls for its repeal, as we now discuss arguments for repeal on both ends. And again, we see clear, detailed, articulable concerns about how the DMCA is harming both consumers and creators. The abuses we have seen in the take down provisions combines with a lack of legal remedy for those abuses created by poor drafting and bad jurisprudence. The way the anti-circumvention provision has been used to prevent repair, security research, and circumvent the right of first sale. I can point to specific events if you want to hear it, but the point stands that we can point to not just theoretical harm, but real world harms that have occured. And while yes, the repeal of the DMCA might have negative effects for some content creators, Techdirt has, in my memory, generally called for an overhaul of the system, not tearing it down. Notice and notice, rather than notice and take down. Reinforcing fair use and allowing fair use to bypass technical protection measures. Establishing real legal repercussions for the abuse of the law. You might think that looking at the effects on consumers and creators rather than copyright holders is 'obfusication'. Or a focus on cost-benefit concerns in enforcement efforts is just 'spaghetti logic'. But here in the real world, those type of concerns are major legal and business concerns, respectively, and should be considered when discussing these topics. Over on the funny side, our first place winner is an anonymous take on this week's popular story about an 11-year-old hacking election website replicas at DEF CON: Voting machine company: "This was a useless test of the machine's vulnerabilities. Eleven-year-olds can't vote. So your machines are safe from them getting into and changing any records." In second place, it's Michael dutifully offering up a now-standard joke that comes around when we criticize Google: Another attempt for Mike Masnick, Google shill, to highlight how great Google is. When are you going to get out of their pocket and start talking about the things they do wrong? For editor's choice on the funny side, we start out with another comment about the DEF CON election hacking, with That One Guy homing in on a software company's complaint that the exercise violates their licensing agreements: I mean, that's certainly a valid argument, everyone knows that the sort of people who would hack a voting machine would absolutely be the sorts that would stop in a moment the second they realized that doing so would violate the licensing agreement regarding the software. They're criminals trying to undermine if not shift an election, something with potentially huge repercussions, but that doesn't mean they'd be rude enough to ignore a license, and as such simulated hacking that does so isn't really an accurate scenario, and can be completely dismissed as non-representative of reality. And finally we head to our post about a police department deciding it can search someone's house because a suspected drug dealer once parked in the driveway. Toom1275 mocked this conclusion with a slightly truncated version of a great Carl Sagan monologue: "Observation: I can't see a thing on the surface of Venus Conclusion: Dinosaurs." - Carl Sagan That's all for this week, folks! Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Five Years Ago This week in 2013, the White House incredibly put James Clapper in charge of independent NSA review, then tried to change its tune a bit when people rightly pointed out that this was insane. Meanwhile, Rep. Justin Amash discovered that the House Intelligence Committee had withheld important NSA documents from the rest of Congress, and that the White House knew it. Then, the latest leak revealed that the NSA abused the rules to spy on Americans thousands of times every year — since there was no real oversight, the FISC court just relied on the NSA's own statements to determine what was legal, and agents were told to withhold information from those in charge of oversight. Senators Wyden and Udall hinted that this was just the tip of the iceberg, while NSA defenders claimed the abuses were evidence of the system working well and that the numbers were impressive compared to the amount of spying the NSA does. Ten Years Ago This week in 2008, Italy tried and failed to block all access to The Pirate Bay, with the predictable result of a spike in Italian traffic to the site. Universities were realizing that the RIAA was taking advantage of them in its crusade against file-sharing students, while one teenager targeted in a lawsuit managed to get damages reduced with an "innocent infringement" defense. Nintendo was freaking out about memory cards for the Nintendo DS, while Tiffany was continuing its futile efforts to hold eBay accountable for counterfeit products by appealing a court ruling that said they weren't (and this same week, a Belgian court was ruling the same thing). Fifteen Years Ago This week in 2003, eBay was only just starting to become the ecommerce platform of choice with folks setting up entire businesses on the site. ISPs were the ones fighting back against the RIAA, along with one accused file-sharer who was hitting the agency with a countersuit arguing that sharing does not equal distribution. There were early rumblings of "personalization" as the future of search engines, and the fairly new technology of MMS picture messages was being put to use for networked security cameras and medical emergencies. And nearly seven years before the iPad, there were lots of tablet computers hitting the market, but nobody wanted them. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
The key idea behind open access is that everyone with an Internet connection should be able to read academic papers without needing to pay for them. Or rather without needing to pay again, since most research is funded using taxpayers' money. It's hard to argue against that proposition, or that making information available in this way is likely to increase the rate at which medical and scientific discoveries are made for the benefit of all. And yet, as Techdirt has reported, academic publishers that often enjoy profit margins of 30-40% have adopted a range of approaches to undermine open access and its aims -- and with considerable success. A recent opinion column in the Canadian journal University Affairs explains how traditional publishers have managed to subvert open access for their own benefit: An ironic twist to the open-access movement is that it has actually made the publishers richer. They've jumped on the bandwagon by offering authors the option of paying article processing charges (APCs) in order to make their articles open access, while continuing to increase subscription charges to libraries at the institutions where those authors work. So, in many cases, the publishers are being paid twice for the same content -- often charging APCs higher than purely open access journals. Another serious problem is the rise of so-called "predatory" open access publishers that have distorted the original ideas behind the movement even more. The Guardian reported recently: More than 175,000 scientific articles have been produced by five of the largest "predatory open-access publishers", including India-based Omics publishing group and the Turkish World Academy of Science, Engineering and Technology, or Waset. But the vast majority of those articles skip almost all of the traditional checks and balances of scientific publishing, from peer review to an editorial board. Instead, most journals run by those companies will publish anything submitted to them -- provided the required fee is paid. These issues will be hard, if not impossible, to solve. As a result, many are now looking for a different solution to the problem of providing easy and cost-free access to academic knowledge, this time in the form of preprints. Techdirt reported earlier this year that there is evidence the published versions of papers add very little to the early, preprint version that is placed online directly by the authors. The negligible barriers to entry, the speed at which work can be published, and the extremely low costs involved have led many to see preprints as the best solution to providing open access to academic papers without needing to go through publishers at all. Inevitably, perhaps, criticisms of the idea are starting to appear. Recently, Tom Sheldon, who is a senior press manager at the Science Media Centre in London, published a commentary in one of the leading academic journals, Nature, under the headline: "Preprints could promote confusion and distortion". As he noted, this grew out of an earlier discussion paper that he published on the Science Media Centre's blog. The Science Media Centre describes itself as "an independent press office helping to ensure that the public have access to the best scientific evidence and expertise through the news media when science hits the headlines." Its funding comes from "scientific institutions, science-based companies, charities, media organisations and government". Sheldon's concerns are not so much about preprints themselves, but their impact on how science is reported: I am a big fan of bold and disruptive changes which can lead to fundamental culture change. My reading around work on reproducibility, open access and preprint make me proud to be part of a scientific community intent on finding ways to make science better. But I am concerned about how this change might affect the bit of science publication that we are involved with at the Science Media Centre. The bit which is all about the way scientific findings find their way to the wider public and policymakers via the mass media. One of his concerns is the lack of embargoes for preprints. At the moment, when researchers have what they think is an important result or discovery appearing in a paper, they typically offer trusted journalists a chance to read it in advance on the understanding that they won't write about it until the paper is officially released. This has a number of advantages. It creates a level playing field for those journalists, who all get to see the paper at the same time. Crucially, it allows journalists to contact other experts to ask their opinion of the results, which helps to catch rogue papers, and also provides much-needed context. Sheldon writes: Contrast this with preprints. As soon as research is in the public domain, there is nothing to stop a journalist writing about it, and rushing to be the first to do so. Imagine early findings that seem to show that climate change is natural or that a common vaccine is unsafe. Preprints on subjects such as those could, if they become a story that goes viral, end up misleading millions, whether or not that was the intention of the authors. That's certainly true, but is easy to remedy. Academics who plan to publish a preprint could offer a copy of the paper to the group of trusted journalists under embargo -- just as they would with traditional papers. One sentence describing why it would be worth reading is all that is required by way of introduction. To the extent that the system works for today's published papers, it will also work for preprints. Some authors may publish without giving journalists time to check with other experts, but that's also true for current papers. Similarly, some journalists may hanker after full press releases that spoon-feed them the results, but if they can't be bothered working it out for themselves, or contacting the researchers and asking for an explanation, they probably wouldn't write a very good article anyway. The other concern relates to the quality of preprints. One of the key differences between a preprint and a paper published in a journal is that the latter usually goes through the process of "peer review", whereby fellow academics read and critique it. But it is widely agreed that the peer review process has serious flaws, as many have pointed out for years -- and as Sheldon himself admits. Indeed, as defenders note, preprints allow far more scrutiny to be applied than with traditional peer review, because they are open for all to read and spot mistakes. There are some new and interesting projects to formalize this kind of open review. Sheldon rightly has particular concerns about papers on public health matters, where lives might be put at risk by erroneous or misleading results. But major preprint sites like bioRxiv (for biology) and the upcoming medRxiv (for medicine and health sciences) are already trying to reduce that problem by actively screening preprints before they are posted. Sheldon certainly raises some valid questions about the impact of preprints on the communication of science to a general audience. None of the issues is insurmountable, but it may require journalists as well as scientists to adapt to the changed landscape. However, changing how things are done is precisely the point about preprints. The present academic publishing system does not promote general access to knowledge that is largely funded by the taxpayer. The attempt by the open access movement to make that happen has arguably been neutered by shrewd moves on the part of traditional publishers, helped by complaisant politicians. Preprints are probably the best hope we have now for achieving a more equitable and efficient way of sharing knowledge and building on it more effectively. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
It's been a week or so since we last checked in on the Aloha Poke situation, so perhaps you were wondering how things were coming along with the Chicago chain that wasn't founded by Hawaiians attempting to bully native Hawaiian poke joints across the country out of using their own language and culture over trademark concerns. You will recall that Aloha Poke Co. had sent cease and desist notices to many poke restaurants that dared to use the ubiquitous Hawaiian term "Aloha" in their names, including to proprietors on the Hawaiian Islands themselves. That many operations throughout the country had been chugging along sharing this name and food culture without issue apparently didn't prevent Aloha Poke Co. from registering "Aloha Poke" as a trademark and then go the bullying route. The last touchstone in all of this was a hundreds-strong planned protest at the company's headquarters in Chicago, which indeed ended up happening. So, how have things gone since? Well, Aloha Poke Co. appears to be simply digging in its heels and trying to ride this storm out rather than backing down, but it's a strategy that doesn't appear to be working all that well. Just this week, the Office of Hawaiian Affairs, an organization that promotes and protects Hawaiian culture, has jumped into the fray, both voicing its displeasure at Aloha Poke Co.'s bullying and essentially filling up its homepage with news about the protests. In a statement, OHA CEO Kamana’opono Crabbe described the attitude of OHA as “appalled” over the food chain’s trademarks, which uses culturally significant words from ‘Ōlelo Hawai’i, the traditional native Hawaiian language. OHA also asserted that they were currently contacting prominent stakeholders to “discuss possible solutions” to the trademark controversy. The organisation went on to highlight the continuous “commercialisation and exploitation” of traditional Hawaiian culture that hinders attempts to preserve customs and languages in an appropriate manner. As we've said in past posts, the concerns about cultural appropriation, particularly in light of the subsequent bullying, are valid and very real, but the better route to victory against Aloha Poke Co. is almost certainly legal arguments over its trademark more generally. Whatever you might think of this sort of cultural appropriation, it seems obvious to me that the United States government and its USPTO wing are not sure-fire candidates for swaying on arguments that big business isn't treating natives all that well. Backing that statement up for citation purposes is: history. Instead, we should be seeing as many or more arguments that the term "Aloha" is, as stated, ubiquitous and non-identifying, whereas the term "poke" simply refers to the goods sold at these establishments. Marrying a generic term with a name of a product you can't trademark obviously doesn't create a valid trademark. But none of that is to suggest that efforts to gin up anger over the appropriation side of this doesn't have a place in getting Aloha Poke Co. to reverse course on its bullying. Public shaming does indeed work and it's good to see that the company's current strategy of waiting out the anger simply isn't working. In other words: Dear Aloha Poke Co., it's probably time to cut your losses and issue a mea culpa. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
You may have heard the general mantra that "puns are the lowest form of comedy." Heathens say that, because puns are great and, if I had my way, there would be a legal requirement to use at least one in every legal document this country produces. They can also be used to lighten up what would otherwise be heavy legal actions. Such is the case with In-N-Out Burger, which decided to respond to what is pretty likely trademark infringement with a pun-laden cease and desist. We'll start with the product that was likely infringing on In-N-Out's trademarks, which itself involves some punnery. The back and forth banter all started on July 12 when Seven Stills took to Instagram and posted a photo of its soon-to-be-released "barrel aged neopolitan milkshake stout." The beverage's logo featured In-N-Out's famous red palm tree lining, arrow logo and the phrase "In-N-Stout Beer." In case you're wondering just how clearly Seven Stills' use of In-N-Out's trade dress was, here is the brewery's own Instagram post. Barrel aged neopolitan milkshake stout coming soon. @innout A post shared by Seven Stills of SF (@sevenstills) on Jul 12, 2018 at 10:34am PDT In case you're somehow unaware of In-N-Out's log and cup design, the In-N-Stout effort above is a very clear play on it: So, yeah, despite the two companies being in different markets, this sort of use could still cause some kind of confusion and create an impression of affiliation between the two entities. If you really want to argue any of that, I suppose you can, but this is probably trademark infringement. In-N-Out, which we have criticized in the past for some dodgy trademark behavior, deserves some credit here instead for firing off a cease and desist that certainly didn't take itself too seriously. After In-N-Out caught wind of the idea, its legal team crafted a cease and desist letter jam-packed with puns related to beer making. "Based on your use of our marks, we felt obligated to hop to action in order to prevent further issues from brewing," part of the letter read. The C&D actually had way more puns than just those, however. Given the gentle and congenial nature of the C&D, in fact, Seven Stills made a point to post the entire thing to its Instagram account, as well as agreeing to alter its beer's trade dress to remove In-N-Out's branding from the can. We count 9. Can you find them all? A post shared by Seven Stills of SF (@sevenstills) on Aug 13, 2018 at 4:00pm PDT If you can't see that, it reads: Dear Seven Sills Brewery & Distillery, We at In-N-Out Burgers ("In-N-Out") received multiple reports of your "In-N-Stout Beer" featured on your social media pages. The In-N-Stout Beer label features In-N-Out's trademarks including our palm tree and arrow logos along with a substantial similarity to In-N-Out's brand name. Based on your use of our marks, we felt obligated to hop to action in order to prevent further issues from brewing. In case you are not already aware, In-N-Out owns multiple trademark registrations in these marks. As you may expect, we tap into a lot of effort in protecting our marks, which includes limiting their use by others. Please understand that use of our marks by third parties ales us to the extent that this could cause confusion in the marketplace or prevent us from protecting our marks in the future. We hope you can appreciate, however, that we are attempting to clearly distill our rights by crafting an amicable approach with you, rather than barrel through this. Accordingly, we request that you refrain from further use of In-N-Out's marks by not selling or promoting items featuring our marks, and removing images of "In-N-Stout" and any other items featuring our marks from your website and social media pages. Please contact us as soon as possible, so this does not continue to ferment. Thank you for your time and consideration, and we look froward to resolving this in good spirits. The lesson here isn't that there wasn't some other way to work this out beyond a cease and desist notice. No, the point here is that trademark issues can reach amicable ends if only companies are congenial with one another... and use as many puns as possible. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Earlier this week, the Associated Press did a story revealing that even for Google users (on both Android and iPhone) who turned off location tracking Google was still tracking their location in some cases. Google says that will prevent the company from remembering where you’ve been. Google’s support page on the subject states: “You can turn off Location History at any time. With Location History off, the places you go are no longer stored.” That isn’t true. Even with Location History paused, some Google apps automatically store time-stamped location data without asking. (It’s possible, although laborious, to delete it .) For example, Google stores a snapshot of where you are when you merely open its Maps app. Automatic daily weather updates on Android phones pinpoint roughly where you are. And some searches that have nothing to do with location, like “chocolate chip cookies,” or “kids science kits,” pinpoint your precise latitude and longitude — accurate to the square foot — and save it to your Google account. If you squint, you can kind of see why this might have happened. Apps like Maps and weather more or less need your location info to work well (though, the search part is a bit more baffling). But, even so, this seems like a huge blunder by Google, a company that should absolutely know better. The latest, of course, is that Google has quietly moved to update the language that users see to "clarify" that some location data may still be recorded: But its help page for the Location History setting now states: “This setting does not affect other location services on your device.” It also acknowledges that “some location data may be saved as part of your activity on other services, like Search and Maps.” Previously, the page stated: “With Location History off, the places you go are no longer stored.” It's entirely possible, if not likely, that the location history feature is completely disconnected from the location specific data within these other apps. But, still, the average consumer is not going to realize that. Indeed, the tech savvy consumer is mostly unlikely to understand that. And Google's new "clarification" isn't really going to do a very good job actually clarifying this for people either. Google certainly has done a better job than a lot of other companies both in providing transparency about what data it collects on you and giving you controls to see that data, and delete some of it. But this was still a boneheaded move, and it's simply ridiculous that someone at the company didn't spot this issue and do something about it sooner. As I've been pointing out for a while, a big part of why so many people are concerned about privacy on digital services is because those services have done a piss poor job of both informing users what's happening, and giving them more control over the usage of their data. This kind of situation is even worse, in that under the guise of giving users control (a good thing), Google appears to have muddied the waters over what information it was actually collecting. I also wonder if this will make the FTC's ears perk up. There is still an FTC consent decree that binds the company with regards to certain privacy practices, and that includes that the company "shall not misrepresent in any manner, expressly or by implication... the extent to which consumers may exercise control over the collection, use, or disclosure of covered information." And "covered information" includes "physical location." Would these practices count as misrepresenting the extent to which consumers could stop Google from collecting location info? It certainly seems like a case could be made that it does. There are many areas where it feels like people attack the big internet companies just because they're big and easy targets. Sometimes those attacks are made without understanding the underlying issues. But sometimes, I'm amazed at how these companies fail to take a thorough look at their own practices. And this is one of those cases. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Add an extra layer of security to your browsing with NordVPN. Get online access anywhere with 3,521 worldwide server locations in 61 different countries, and you can connect 6 devices simultaneously. All data sent through NordVPN’s private tunnels is double encrypted, and with zero logs recorded, you can surf with greater confidence that your data is protected. A 2 years subscription is on sale for $69, or a 3 years subscription for $99. 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...