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It is becoming more and more valuable to learn a second, or third, fourth, or fifth language. uTalk helps you overcome the language barrier challenge by helping you learn real, practical vocabulary in a wide variety of languages from any device that you choose. uTalk's language programs let you understand how native speakers actually talk and feature independently verified translations so you'll be able to navigate through your next vacation like a real local. There are a few non-expiring subscription options to choose from in the Deals store: 1 language for $19.99, 6 languages for $29.99, 12 European languages for $49.99, or 22 European and Asian languages for $99.99. 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

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Senator Ron Wyden, as a member of the Senate Intelligence Committee, spent half a decade trying to get President Obama's Director of National Intelligence, James Clapper, to answer some fairly straightforward questions about NSA surveillance on Americans. As you may recall, this got so bad that Clapper flat out lied to Wyden in an open Senate hearing, which inspired Ed Snowden to leak documents to Glenn Greenwald. With the Trump administration, Dan Coats took over Clapper's job... and Clapper's role of obfuscating in response to important questions from Wyden concerning NSA surveillance. Despite promises to the contrary, Coats (like Clapper before him) has refused to share just how many Americans have their information sucked up under Section 702. Since that program is up for renewal later this year, that kind of information seems quite relevant to the debate. However, as we noted back in June, Wyden has also been asking a different, and much more specific question of Coats. At a hearing in June, Wyden asked: Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic? This seems like a kind of important question. 702 on its face, says that it can't be used to target domestic communications. Literally, the law says this: "An acquisition authorized under [this statute]... may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States." But, as we've learned, when Senator Wyden asks an "is this happening?" question -- the answer is always "yes." And, once again, it appears that Coats is playing games. Coats responded to that question at the time saying: "Not to my knowledge. It would be against the law." That seems like a pretty clear and definitive answer: "no." Which is as it should be. But then... something weird happened. The very next day, Coats' office put out a "clarifying" statement (ruh roh...), saying that Coats had "interpreted" Wyden's question to be referring specifically to Section 702(b)(4) (the part that says you can't spy on domestic communications). But, that's not what Wyden had asked. He had asked about the entirety of 702. So this "clarification" certainly seemed to suggest that Coats' original answer was incorrect in regards to the actual question, and instead, his staff was rewriting Wyden's question to make sure he had answered it accurately. In other words, it appears that Coats put himself in a Clapper-position, of mistakenly claiming that the NSA isn't spying on Americans under a specific authority when it absolutely is -- and the reinterpretation of the question was his retroactive attempt to make his answer "truthy." Not surprisingly, this didn't please Wyden, who quickly asked Coats to officially answer the original question with a yes or no, and not the reinterpreted question his office claimed he had answered. Coats has now sent "an answer" but not a good one. He's now claiming that it's classified, and also takes some weird shots at Wyden for asking such a question in the first place: Dear Senator Wyden: In response to your letter of July 31, 2017, I would note that I responded to your question publicly both at the Senate Select Committee on Intelligence's open hearing on June 7, as well as in an unclassified letter to you on June 8. However, in further conversations with you and your staff, including at a closed budget hearing on June 15, it became clear that you already had the specific information that you were seeking, but this information was classified. In an effort to be responsive to you, I committed to assessing whether the sources and methods information you were asking for could be publicly released. After consulting with the relevant intelligence agencies, I concluded that releasing the information you are asking to be made public would cause serious damage to national security. To that end, I provided you a comprehensive classified response to your question on July 24. This response also discussed, at length, why the information is properly classified and cannot be publicly released. I want to stress that the Intelligence Community takes seriously its obligation to faithfully execute collection under Section 702 consistent with the Constitution and statutory requirements. We also take seriously our obligation to ensure Congress has all the information - both publicly available and classified it needs to conduct oversight of this program. While I recognize your goal of an unclassified response, given the need to include classified information to fully address your question, the classified response provided on July 24 stands as our response on this matter. Sincerely, Daniel R. Coats Now, for those of you thinking "okay, it makes sense that we can't reveal classified information that might harm national security," let me remind you of the question that Wyden asked: Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic? Okay. So please explain how a simple yes or no answer to that can be classified -- especially given the plain language of the law itself? And, of course, this answer -- or, more specifically, the refusal to say "no" -- more or less confirms that the answer is a resounding "YES!" the government believes that it can use Section 702 to collect purely domestic communications, in clear contradiction to the plain language of the law. Furthermore, if this question is so scary and so dangerous, why didn't anyone -- including Coats himself -- have any problem answering it when it was initially posed back in June? It didn't seem like such a risk to national security then. It's only a risk to national security after Coats' staff realized he misspoke? How, exactly, does that work? As you might imagine, Senator Wyden is not pleased with this turn of events: It is hard to view Director Coats' behavior as anything other than an effort to keep Americans in the dark about government surveillance. I asked him a simple, yes-or-no question: Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic? What happened was almost Orwellian. I asked a question in an open hearing. No one objected to the question at the time. Director Coats answered the question. His answer was not classified. Then, after the fact, his press office told reporters, in effect, Director Coats was answering a different question. I have asked Director Coats repeatedly to answer the question I actually asked. But now he claims answering the question would be classified, and do serious damage to national security. The refusal of the DNI to answer this simple yes-no question should set off alarms. How can Congress reauthorize this surveillance when the administration is playing games with basic questions about this program? This is on top of the administration's recent refusal even to estimate how many Americans’ communications are swept up under this program. The Trump administration appears to have calculated that hiding from Americans basic information relevant to their privacy is the easiest way to renew this expansive surveillance authority. The executive branch is rejecting a fundamental principle of oversight by refusing to answer a direct question, and saying that Americans don't deserve to know when and how the government watches them. So, uh, who in the NSA is going to play the role of Snowden this time? Once again, it appears we have a Director of National Intelligence claiming no surveillance on Americans under a specific authority, when everything that Wyden is saying indicates that he damn well knows that's not true. Sooner or later someone's going to leak the fact that the intelligence community is lying to the American public in order to spy on the American public. Permalink | Comments | Email This Story

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For years one of the greasier lobbying and PR tactics by the telecom industry has been the hijacking of minority and civil rights groups to help parrot awful policy positions. Historically, such groups are happy to take financing from a company like Comcast, in exchange repeating whatever memos are thrust in their general direction -- even if the policy dramatically harms their constituents. The tactic of creating or "co-opting" such groups helps foster the illusion of broad support for awful, anti-consumer policies, whether that's support for the latest competition-killing merger or support for the assault on net neutrality. Because this cozy quid pro quo is implied but never put into writing, ISPs traditionally respond with breathless indignance to the mere suggestion they're using minority voices as policy props. But Comcast has found that tactic consistently so successful, a few years back it went so far as to give its top lobbyist, David Cohen, a new title: "Chief Diversity Officer." Said title not only lets Cohen profess the company's unwavering dedication to minorities with one hand while undermining them with the other, but helps him skirt the government's flimsy restrictions on lobbying. A few weeks back boss Ajit Pai announced the creation of a new "Advisory Committee on Diversity and Digital Empowerment," a group Pai insisted was established to champion the voice of every American, “no matter their race, gender, religion, ethnicity, or sexual orientation." But as we've noted before, Pai's breathless support of closing the digital divide is utterly illusory, as his policies (ranging from gutting popular consumer protections to protecting the cable industry's monopoly over the cable box) consistently involve undermining consumer interests while encouraging industry rate hikes. Pai has appointed Julia Johnson, president of a consulting firm called NetCommunications, to lead the Advisory Committee. Not too surprisingly, The Intercept was quick to highlight how Johnson has a long history of actively undermining minority interests on behalf of the Multicultural Media, Telecom & Internet Council, a Comcast, AT&T and Verizon funded vessel specifically designed to help provide illusory minority community support for these companies' positions: "Shortly after Trump named Pai to lead the FCC, the Multicultural Media, Telecom & Internet Council — a nonprofit chaired by Johnson and funded by Comcast, AT&T, Verizon, and other large telecom firms — released statements praising Pai’s appointment and endorsing his strategy for unwinding the net neutrality protections secured during former President Barack Obama’s administration. MMTC’s pro-Trump administration statements, cast as being made on behalf of communities of color, are typical of Johnson’s approach. Over the years, Johnson has used racial minorities as a cudgel to disingenuously lobby on behalf of industry." It should go without saying, but mindlessly cheering for competition-killing mega-mergers raises rates and harms consumers -- minority or otherwise. As does advocating for the destruction of popular net neutrality and broadband privacy rules. Such protections, however imperfect, help prevent large, incumbent ISPs from abusing the obvious lack of competition in the broadband market. With little to no competition, we've watched as companies like AT&T have tried to charge users a steep premium for privacy, and companies like Comcast have slowly but surely imposed arbitrary and unnecessary usage caps. We've also noted how this lack of competition has resulted in a large number of minority communities being left behind completely when it comes to next-generation broadband. Groups like the MMTC and dollar-per-holler allies like Johnson have consistently undermined efforts to actually do something about these problems. And getting them to admit their financial ties to giant ISPs has long proven comical, as Ed Markey found out in a 2006 hearing when he tried to uncover whether Johnson was being paid by the telecom industry to oppose policies aimed at forcing ISPs to expand broadband coverage to disadvantaged areas: Markey: Is your organization financially supported by the Bell [telephone] companies in any way? Johnson: No, we’re not. Markey: At all. Johnson: Yes, and let me elaborate upon that too. We’re a relatively new organization. Markey: No, that’s OK. I can go along with that answer. That’s fine. Thank you. And are you compensated in any way by the Bell companies? Johnson: I have a consulting firm that works for a variety of companies, generally in the regulatory space. Markey: But are the Bell companies amongst those companies that pay you? Johnson: Yes. Traditionally the media hasn't shown much of an interest in connecting what are often fairly-obvious dots, a major reason this disinformation and lobbying tactic has been so successful over the last decade. Knowing this all too well, the FCC appears poised to lean on this tactic heavily as it works to kill net neutrality and eliminate most meaningful oversight of one of the least competitive markets in American industry. All while groups like the MMTC and industry allies like Johnson proclaim that gutting consumer protections will somehow aid the very communities these decisions will harm the most. Permalink | Comments | Email This Story

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First, let's all just take a moment to drink in that headline above. 2017, people: it's a weird time to be alive. In any case, you likely have heard of Netflix's hit original show, Narcos. The show follows the exploits of Pablo Escobar's drug organization and was once the subject of Escobar's brother demanding a billion dollars from Netflix over the portrayal. Netflix, of course, was the disruptive new streaming service for movies and television that has since decided to go the route of copyright protectionist now that it is producing its own original content. It's a strange look for a company that exploded on a model of convenience over piracy, raking in tons of legit dollars by simply being an option better than or comparable to pirating films and television. Rather than continuing to compete in that arena, the company has begun to go the way of Big Content, firing off all kinds of DMCA notices. And now threatening to shoot people and their families for pirating Netflix content? Well, not really, of course. I'm sure the folks at Netflix thought it would be funny to have actors from Narcos do so in character in France. But watch the video Netflix put out for yourself. If you cannot see the video, the TorrentFreak link above has a nice summary of it. “Hey you, yes you, do you think you’re smart? Do you think we didn’t see you Googling ‘Narcos season 3 download’? Don’t be a fool. Narcos is a business,” Pepe begins. “If you want your entertainment. If you want your show. You’re gonna pay the Cali Cartel, ‘hijo de puta’,” Pacho adds, using the strong language one expects from a cartel leader. “Do you think we’re like Hadopi? Do you think we’re going to send you a nice and polite letter first? Please, sir / madam, could you please not illegally download Narcos? We don’t do courtesy letters.” “There is no please, no por favor, no s’il vous plait,” Pepe adds. “There’s bullets for you, your family, and all the people you send to watch Narcos on all those shitty websites full of questionable pop-ups,” Gilberto says. “You know where to find us. Don’t mess around ‘hijo de puta’,” his brother adds. It's just uncomfortable. Nobody is mistaking Netflix actors for actual hitmen, but it's worth putting this sort of thing in the context of the past decade, in which people really have had their lives ruined in retribution for copyright infringement. The threat letters from copyright trolls really do go out across Europe, looking for all the world like the legal arm of some extortion ring or mob organization. Threats to out people for their pornography of choice really have happened. Within that landscape, to joke around about shooting those who pirate a television show misses the mark on humor entirely, and coming from a company like Netflix it's downright creepy. Permalink | Comments | Email This Story

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Various authority figures have attempted to define journalism, usually excluding their critics. A recent post here covered a police chief who decided he could determine a journalist's credibility based almost solely on their web presence. Trimming down the definition of "journalist" allows government officials to limit their accountability by treating only certain outlets as credible. So, we already have government authorities attempting to define what is or isn't a "real" news outlet. Jonathan Peters of the Columbia Journalism Review reports a government authority is attempting to define what is or isn't news. In this case, it's the Vermont State Police. It recently revised a “Press Release and Public Information Policy” that provides guidance for police officers regarding how, what, and when information should be given to the press and public. The revisions came in July, and local journalists aren’t happy. “The policy leaves it up to individual state troopers to determine what is news and what isn’t,” Michael Donoghue, the executive director of the Vermont Press Association, tells CJR. “Crimes, including sexual assaults, armed robberies, arsons, burglaries, embezzlements, drugs, and more are not required to be disclosed. Vermonters want to know if they are safe in their homes and out on the streets.” The new policy [PDF] prefers ambiguity to clarity and transparency. Worse, it allows officers and police officials to make subjective calls on newsworthiness, which is obviously going to make policing the police that much more difficult. This part is particularly problematic, as it restricts dissemination of information to that which is subjectively defined as "significant public interest." Press releases will be issued as soon as practicable for significant incidents of public interest, including, but not limited to arrests, citations, road closures, hazardous scenes and motor vehicle crashes. Beyond that, VSP will withhold all info that "could identify" victims of crimes. This would include those who are on the receiving end of criminal activity by law enforcement officers. As Peters points out, this may nod to privacy, but does very little for public safety. (Not to mention accountability…) This would allow officers to withhold information that might be actually useful to the public, like the areas where repeated criminal activity is being observed. Even as it places more limits on dissemination, the State Police is playing up its supposed "consultation" with local journalists when revising its policy. That's as much of a sham as the new policy. While the police say they consulted the press (the state public-safety head wrote in a July letter-to-the-editor that the police “met with and had several discussions with and solicited input from” local journalists), the press association didn’t receive a final draft of the revisions before they were implemented. Donoghue says the formal consultation amounted to one meeting with two officials. Another press association leader then asked to meet with the public-safety head, who hadn’t attended the meeting except to offer a brief welcome. That request wasn’t granted, and there was no follow-up meeting involving the press. When asked directly about the changes (and their tendency to make dissemination of information even less likely), the Police spokesman offered up some talking points, but little in the way of clarity. He told Waterman the policy tries to strike a balance between the public's right to know and individual privacy and the integrity of criminal investigations. The spokesman also pointed to the department's 14 press releases a day as evidence that it's all over this transparency thing. But, as is pointed out by the policy's critics, 14 releases a day isn't much when there are more than 300 officers on staff. The VSP issues press releases for things like driving with a suspended license and other misdemeanors. If this minutia is supposed to be evidence of transparency, what are the other 300 officers doing with their time? The faux consultation and the broad language attempt to disguise the self-interested policy rewriting. Law enforcement agencies are rarely paragons of transparency. The new rules the State Police wrote itself with almost zero consultation will only serve to keep more information out of the public's hands. Permalink | Comments | Email This Story

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Trump's pick for attorney general unsurprisingly holds the same ideals as his boss. He also holds the same misconceptions and misplaced nostalgia for tough-on-crime policing that went out of vogue as soon as it became apparent it wasn't doing anything but filling up prisons. Attorney General Jeff Sessions has been going hot and heavy on a 1980s-esque law enforcement policy revival. He booted the DOJ off the civil rights beat, telling states and cities to solve their own police misconduct problems -- something they were clearly unwilling to do on their own, hence the DOJ's intercession. He told cops they're getting back their access to war gear, rolling back the Obama administration's minimal 1033 program reforms. He's been touting tougher policing and tougher sentencing, using a false narrative of a country under siege by drug dealers and criminal border-jumpers. In a time of historic lows -- both in violent criminal activity and violence towards police officers -- AG Sessions is acting like a street corner preacher, promising an impending apocalypse to anyone who will listen. Sessions is also peeling away federal reforms to asset forfeiture. He's opened the federal safety valve for civil forfeitures, allowing local PDs to dodge state laws limiting the amount of property they can take from uncharged citizens. Given the makeup of Congress, one would assume Sessions' ongoing effort to raise US law enforcement to "a law unto itself" level would ride on rails, at least up until midterm elections. Instead, Sessions is facing a literal House divided -- not against itself exactly -- but against him. In a stunning move, the House of Representatives on Tuesday approved an amendment to the Make America Secure and Prosperous Appropriations Act that will roll back Attorney General Jeff Sessions’s expansion of asset forfeiture. Amendment number 126 was sponsored by a bipartisan group of nine members, led by Michigan Republican Rep. Justin Amash. He was joined by Democratic Reps. Ro Khanna of California; Washington state’s Pramila Jayapal, a rising progressive star; and Hawaii’s Tulsi Gabbard. If this passes the Senate untouched, the amendment will roll things back to 2015 -- once again prohibiting federal adoption of local forfeitures. It would make state and local agencies play by the rules set for them by their legislatures, rather than allow them to bypass protections put in place to discourage abuse of programs loaded with the most perverted of incentives. Permalink | Comments | Email This Story

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The ATF isn't restrained by oversight. It's hardly restrained at all. It's made a business of fake stash house sting operations, where downtrodden suckers looking for cash are persuaded to rob a ficitonal stash house of its fictional drugs. The problem is the government then bases its charges on the amount of nonexistent drugs sting victims were told the fake stash house contained. In no sting operation was the "amount" of drugs lower than 5 kilograms -- the amount needed to trigger a 20-year minimum sentence. Why is the ATF involved? Because every sting operation involves fictional armed guards, necessitating the use of illegally-obtained weapons by sting victims. Bang. More charges with lengthy minimum sentences. When not pushing people into fake robberies, the ATF regulates alcohol, tobacco, and firearms. (Also explosives, but it makes the well-known acronym more than a bit clumsy.) To facilitate maximum price gouging by state governments, the ATF tries to break up untaxed cigarette sales. It's this simple work that has propelled an accountability-free explosion in the ATF, most of it traced back to a single office in Bristol, Virginia, fronted by a quasi-legitimate tobacco distributor. From there, an appalling amount of illegal activity was participated in by ATF agents and officials. Matt Apuzzo has put together an amazing story for the New York Times, sourced from interviews and public records requests -- one that will cause your jaw to drop lower the further you scroll down the page. As Apuzzo puts it, the operation began as a way to bust black-market cigarette sales. It ended up as something much more sinister: an ATF slush fund that mixed public and private money with zero oversight or statutory authority. If any agent needed anything -- from vending machines with cameras in them to credit cards for unquestioned expenses -- they went to Bristol. It was done in the government's name, but plenty of agents personally profited from the operation. The spending was not limited to investigative expenses. Two informants made $6 million each. One agent steered hundreds of thousands of dollars in real estate, electronics and money to his church and his children’s sports teams, records show. Federal law prohibits mixing government and private money. The A.T.F. now acknowledges it can point to no legal justification for the scheme. But far from reining in the spending, records show that supervisors at headquarters encouraged it by steering agents from around the country to Bristol. As the money mixed, the spending increased. ATF officials in Washington sent agents to Bristol to obtain equipment, supplies, and spending money in order to bypass red tape. So many vehicles were requisitioned through Bristol the office had to set up its own leasing company. Hotel bills and gas alone ran nearly $25,000 a month. And yet, the DOJ never looked into the ATF operation or its incredible amount of spending. With public and private funds overlapping, it would have been a nightmare to audit. How much of a nightmare, no one knows… because no one ever tried. Unbelievably, the "accounting" for the ATF's oversight-less, mixed cash operation was left to a single bookkeeper using Quickbooks on her own computer. As part of the sting, two informants helped pad the ATF's secret account by purchasing cigarettes directly from US Tobacco at $3 a carton and selling them back to the ATF for $17 a carton. Rather than this being a losing proposition for the ATF, the difference in prices allowed the ATF to dump another half-million into its secret Bristol account. The ATF office was basically housing gangsters with hearts of ill-gotten gold at this point. [ATF agent Thomas] Lesnak said he set the prices, allowing his informants “customary and reasonable” profits. Mr. Carpenter and Mr. Small were paid $6 million apiece in less than two years, according to court documents. Such huge sums would normally require special approval. But since the money came from the secret account, the A.T.F. officially paid them nothing. Those around Mr. Lesnak benefited, too. The old tobacco warehouse — a $410,000 repurposed candy factory — was given to his church, property records show. A half-million dollars from the secret account was donated to local law enforcement agencies. Thousands more went to Mr. Lesnak’s children’s school. Mr. Lesnak handed out Blu-ray players and Xboxes to his son’s baseball teammates, one player recalled. The donations, Mr. Small said, were made at Mr. Lesnak’s insistence. To keep his warehouse workers happy, records show, Mr. Lesnak handed out envelopes of cash — $500 to $700 a month, tax free. On an office casino trip, Ms. Davis testified, he provided money for gambling. Employees were given DVD players, televisions or freezers that arrived in the warehouse, records show. The ATF's operation finally ran into trouble when US Tobacco began taking an interest in purchases tied to the agency. Concerned it was being used to facilitate something resembling a criminal operation (but run by law enforcement personnel), US Tobacco began looking into activities at its Bristol warehouse. This led to one of the greatest moments of combined irony and schadenfreude in human existence. The operation ran until Stuart Thompson, a bookish Manhattan native, took over as chief financial officer at U.S. Tobacco. He repeatedly pressed the warehouse manager to explain the unusual supply of Palermos. No market existed for that many cigarettes, he said. On March 8, 2013, the warehouse manager called Mr. Thompson. “He started telling me that A.T.F. was doing operations in our warehouse,” Mr. Thompson recalled. Company lawyers descended on the warehouse, seizing everything. A tobacco company had just raided the A.T.F. Despite all of this, no one involved has been prosecuted. The DOJ still hasn't attempted to audit the funds the ATF worked with, even while declaring the operation to be highly problematic. Everyone involved walked away unscathed. Even Agent Lesnak, who spearheaded the operation and set up the mixed-money slush fund, never received so much as an oral reprimand. I suppose the DOJ felt the 100 or so arrests resulting from the operation outweighed the illegal activity that went on for years under its nose. The whole story is worth reading. It shows the ATF has the DEA's mentality: nothing matters but the job. Any and all illegal operations are forgiven in advance (and often in arrears) because doing the government's version of God' work involves breaking laws like omelet eggs and keeping oversight as far away as possible from day-to-day activities. Permalink | Comments | Email This Story

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Ted Frank is a well-respected lawyer who has heroically dedicated much of his career to stopping bad legal practices, including sketchy settlements in class action lawsuits. Now he's taking action in another case involving a sketchy settlement: the monkey selfie case. As we highlighted earlier this week, while it was no surprise that PETA and photographer David Slater worked out a settlement agreement to end the ridiculous lawsuit PETA had filed, it was deeply concerning that part of the settlement involved PETA demanding that the original district court ruling -- the one saying, clearly, that animals don't get copyrights -- should be thrown out. It took just a few days for Frank, on behalf of CEI, to file a wonderful and hilarious amicus brief with the court. There are a bunch of reasons why vacatur is improper here, but the real beauty of this brief is in pointing out that Naruto -- the monkey -- has been left out of the settlement, and thus not "all parties" have agreed. No, really. PETA continued to assert that it acted as Naruto’s next friend before this Court, after Dr. Engelhardt voluntarily dismissed her appeal before briefs were filed.... The defendants argued that because Dr. Engelhardt was the only person pleaded to have any relationship with Naruto, PETA could not demonstrate the “significant relationship” required to establish next friend standing.... In response, PETA again asserted in writing and at oral argument that it acts as Naruto’s next friend.... Incredibly, PETA now represents that it entered into settlement with the defendants alone—without Naruto.... The settlement instead “resolves all disputes arising out of this litigation as between PETA and Defendants.”... This statement makes no sense. PETA did not have claims against the defendants. PETA argued repeatedly it was a next friend, a nominal party. For what their worth, all claims arising out of this litigation belong to the sole plaintiff, Naruto.... The underlying complaint does not plead a case or controversy between PETA and defendants, and this alone bars vacatur. Without standing, PETA may not move for vacatur. It does not matter that the defendants half-heartedly moved for vacatur under their settlement agreement “without joining or taking any position as to the bases for that request.”... The losing party—Naruto—must carry the burden of proving “equitable entitlement to the extraordinary remedy of vacatur.”... No Naruto, no standing, no vacatur. No Naruto, no standing, no vacatur. What a world we live in. PETA’s too-clever-by-half argument simply does not work. PETA cannot claim to be a qualified next friend, then pretend to be unqualified when it suits them for the limited purpose of vacating an unfavorable precedent. Their position is especially untenable because PETA still “contends that it can satisfy the Next Friend requirements, or should be permitted the opportunity to do so before the district court, if the appeal is not dismissed.” Alternatively, Frank argues that since Naruto is not technically a part of the settlement, perhaps the appeals court should reject the settlement and issue its opinion anyway: Alternatively, if the Court takes PETA’s argument literally, and if PETA agreed only to stop acting as next friend for Naruto, leaving the monkey without an advocate, such a selfish settlement would not extinguish Naruto’s appeal. A stipulation signed only on behalf of the next friend (a nominal party) cannot moot the underlying controversy with the actual party. To the extent that PETA insists this occurred, they have simply ceased to adequately represent their supposed friend Naruto. If so, PETA’s stipulation should be disregarded. Frank also takes a stab at PETA's whole "next friend" argument and why it's so silly in a footnote. First, he notes that if the court is concerned that Naruto is now "friendless" at the court, it could appoint a guardian ad litem, with the following footnote mocking PETA's claim to "next friend" status. The Competitive Enterprise Institute has as much of a personal relationship with Naruto as PETA pleaded (i.e., none), so might plausibly serve the role as well as PETA has. However, any next friend or guardian should have a bona fide personal and non-ideological interest in the incompetent person—putting aside the question of whether animals may be persons under Fed. R. Civ. Proc. 17. And, of course, who knows if Naruto (or some other "next friend") won't sue again: In any event, if Naruto’s claims were indeed not settled by PETA, vacatur should be denied because “Naruto” (that is, someone claiming to be his “next friend”) would remain free to file suit again for further acts of alleged infringement. While this is a bit of a throwaway line, it's actually important -- and it's one that David Slater should pay attention to. Allowing PETA to toss out the lower court settlement might not end his legal troubles over this matter. Anyone else alleging to be Naruto's "next friend" might go right back to court. Finally, Frank notes that just because the parties have announced a settlement, that doesn't mean the court can't reject it and issue a ruling -- providing guidance to other courts in the circuit on this issue. In Americana Art, the panel chose to issue an affirming opinion notwithstanding the dismissal because of the “opportunity to provide additional guidance to the district courts.”... PETA previously stated to this Court that the case presents “a question of first impression [and] the issue is not a trivial one.” ... Given the judicial resources already expended at the district-court and appellate level, the Court can rationally conclude, especially given that PETA is attempting to elide the question of whether it is or is not a “next friend,” that, if the Court is already close to a decision in this straightforward case, it should provide “guidance to the district courts” by issuing a decision that would not require much additional expenditure of judicial resources I would be pleasantly surprised if the 9th Circuit actually keeps the case going and issues an opinion -- but at the very least, it shouldn't ditch the district court ruling. Permalink | Comments | Email This Story

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The Ultimate Computer Science Career Bundle contains 8 courses covering everything from how to ace technical interviews to some of the most important computer technologies out there. Learn testing with Sikuli, Selenium and JUnit, cover risk modeling, factor analysis, numerical optimization, and linear and logistic regression, learn some of the most important tools for working with Big Data like Hadoop, Spark, Apache Storm and QlikView, and much more. IT's on sale in the Deals store for only $$$$ Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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As you may know, Charles Harder is the lawyer behind the lawsuit Shiva Ayyadurai filed against us, so feel free to view everything we say here through that prism. Last week, of course, the judge in our case dismissed the case against us, noting that everything we said was clearly protected by the First Amendment. But that wasn't Harder's only loss of the week. Eriq Gardner points out that he also lost a case he filed against The Deal. That case had been filed a couple months before our lawsuit, in federal court in New Hampshire. It was filed on behalf of Scottsdale Capital Advisors, a company based in Arizona, and one of its execs, the Nevada-based John Hurry, against the Delaware-registered and New York-based "The Deal" and one of its reporters, the California-based William Meagher. Now, you may wonder why this lawsuit was filed in New Hampshire, seeing as none of the states above include "New Hampshire." And, indeed, the court was wondering that too, because it dismissed the case over this bit of weird venue shopping: Scottsdale has failed to establish that defendants have the minimum contacts with New Hampshire required for this court to exercise personal jurisdiction over them in this action consistent with the Fourteenth Amendment’s due process clause. Specifically, the plaintiffs have not demonstrated that their claims are related to the defendants’ forum-based activities or that the defendants purposefully contacted New Hampshire such that they could expect to answer for their actions here. So, why file in New Hampshire? Here's a hint: Statute of limitations for defamation lawsuits in New York: One Year Statute of limitations for defamation lawsuits in Delaware: Two Years Statute of limitations for defamation lawsuits in California: One Year Statute of limitations for defamation lawsuits in Arizona: One Year Statute of limitations for defamation lawsuits in Nevada: Two Years Statute of limitations for defamation lawsuits in New Hampshire: Three Years Which one of those is not like the others? The articles at issue in the lawsuit were published on December 6, 2013, March 20, 2014 and April 16, 2014. The lawsuit was filed on November 18, 2016. In other words, the lawsuit was filed over two years after the publication of the articles, and thus any state with a one-year or two-year statute of limitations -- including all of the states connected to the various parties -- would not have worked. New Hampshire, however, has that lovely three year statute of limitations. The ruling then details the rather extraordinary effort that Scottsdale's lawyers put into trying to argue that New Hampshire is the right place to hear a case when none of the parties is actually in New Hampshire. In short, the argument appears to be that Dartmouth, a college based in New Hampshire, has a subscription to The Deal, and therefore it's published in New Hampshire. And also, The Deal tried to get Dartmouth to renew its subscription, and thus it "conducted business" in New Hampshire. The court is... not impressed for a variety of reasons. At the time it published Meagher’s articles, and in the time since, The Deal has had only one subscriber in New Hampshire -- Dartmouth College. According to The Deal’s records, no user accessed these three articles through the Dartmouth subscription. Nor did either of the two users of the Dartmouth subscription who had signed up to receive “The DealFlow Report” at the time the articles were published open the attachments containing links to the March 25 or April 22 articles; and no evidence suggests either opened the attachment containing a link to the December 10 article. Indeed, according to data collected through Google Analytics, not a single user who read these articles through The Deal’s online portal was located in New Hampshire. Because no evidence suggests that anyone in New Hampshire -- Dartmouth-affiliated or otherwise -- viewed the three allegedly-defamatory articles, the plaintiffs focus on other contacts between The Deal and Dartmouth. For example, The Deal solicited Dartmouth’s subscription, and renewals thereof, through emails and telephone calls specifically directed at Dartmouth. Furthermore, during the time period between January 1, 2013 and June 2017, 81 individuals were registered to use The Deal’s online portal under Dartmouth’s subscription. Approximately 30 to 40 students each year were permitted to access The Deal’s online portal via IP authentication (that is, without entering a log-in name or password). The Deal registered a total of 7,232 “sessions” by Dartmouth users visiting its online portal during this time period. The Deal also communicated directly with between 32 and 48 individuals at Dartmouth by email during this time, including regular circulation of “The DealFlow Report” to the two Dartmouth-affiliated individuals who had signed up for it. But, the court notes that's not nearly enough to make New Hampshire the proper venue: First, the circulation of the allegedly-defamatory articles in New Hampshire is negligible.... (“The size of a distribution of offending material helps determine whether a defendant acted intentionally.”). Though some 7,000 members of the Dartmouth community theoretically had access to The Deal Pipeline, the plaintiffs do not dispute the defendants’ representation that only 30 users were signed up to use that subscription to access The Deal’s online portal at the time the articles were published, and that only two users actually received an email newsletter containing active links to the articles. Such “thin distribution may indicate a lack of purposeful contact,” and it appears to do so here.... Regardless of the number of individuals who could have accessed the offending articles through Dartmouth’s subscription to The Deal Pipeline, the evidence presented suggests that none did. Unlike in Keeton and Calder, where New Hampshire residents read the allegedly libelous statements, presumably, damaging the plaintiffs’ reputations, Scottsdale’s reputation in New Hampshire cannot be impacted by the statements allegedly published in New Hampshire if no one in New Hampshire saw the statements. The court also notes that there's a strong appearance that the lawsuits were filed to create a burden on the reporter, Meagher: The defendants’ burdens of appearing in New Hampshire and the inconvenience to the plaintiffs weigh somewhat against finding jurisdiction here. While that burden on The Deal, a corporate defendant located in New York, is not heavy, the burden on Meagher, an individual residing in California, may be. Ticketmaster-N.Y., 26 F.3d at 210 (“The burden associated with forcing a California resident to appear in a Massachusetts court is onerous in terms of distance . . . .”);.... “As the First Circuit has explained, however, the ‘burden of appearance’ factor is important primarily because ‘it provides a mechanism through which courts may guard against harassment.’” R&R Auction Co., LLC v. Johnson, 2016 DNH 40, 23 (Barbadoro, J.) (quoting Ticketmaster-N.Y., 26 F.3d at 211). This is not the first action that Scottsdale has brought against the defendants for defamation. In May 2016, Scottsdale sued the defendants in New York, where The Deal is located. It withdrew that action on the eve of the deadline for defendants’ motion to dismiss, forcing the defendants to incur the expense of drafting that motion unnecessarily, and then filed this action in New Hampshire. Scottsdale also sued FINRA in Arizona over its investigations of Scottsdale. The defendants here suggest that “the Plaintiffs’ primary strategic purpose” for bringing both the New York and New Hampshire actions “was to coerce Defendants into revealing the identity of Mr. Meagher’s confidential source in the hopes that this information would bolster their case against FINRA in Arizona.” Scottsdale does not deny -- nor even address -- this allegation in its objection and did not do so at oral argument. This factor, therefore, weighs heavily against the reasonableness of this court finding personal jurisdiction. This ruling also comes the day after another Charles Harder lawsuit was filed in New York. Again, there, we noted that there were serious statute of limitations questions. In a profile of Charles Harder published in the Hollywood Reporter last year, it was noted that Harder is well aware of the differences in state laws over defamation: In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country. He also has become a pro on where to strategically file cases. It appears that at least some courts are not impressed with the "strategy" behind where Harder files his cases. Permalink | Comments | Email This Story

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When Google Fiber first arrived back in 2010, it was heralded as a gamechanger for the broadband industry. Google Fiber would, we believed, revolutionize the industry by taking Silicon Valley money and using it to disrupt the viciously uncompetitive and anti-competitive telecom sector. Initially things worked out well; with the mere mention of a looming Google Fiber target market resulting in a much-needed conversation about why the United States consistently languishes in mediocrity when it comes to our broadband networks (pro tip: it's because AT&T, Verizon and Comcast all but own state and federal lawmakers). Seven years later, however, and the Google Fiber bloom appears to be off the rose. There's little doubt that Google Fiber brought some much-needed competition to countless markets, driving down costs and spurring deployment of gigabit networks in key areas (though these benefits are often over-hyped, and broadband competition in countless markets is actually getting worse). There's also no doubt that Google Fiber has been of great benefit to disadvantaged communities, thanks to free deployment of gigabit broadband to anchor institutions and low-income housing developments. That said, the company has gone through two CEOs in a matter of months, laid off an unspecified number of employees during a restructuring last fall, and has begun to show signs that the company's dedication to the project is wavering at best, and notably derailed at worst. Reports began to circulate last fall that high-level Alphabet execs were bored with the slow pace and high cost of fiber deployment, and were considering pivoting the entire Google Fiber business model to wireless. But the company's messaging regarding this transition has been anything but clear, only driving unease among those waiting for the promised revolution. Kansas City, Google Fiber's first launch market, was hyped as nothing short of a looming connectivity Utopia at launch. But the better part of a decade later and many locals say Google Fiber has cancelled their installations after years of waiting. And one Kansas City local made headlines recently when she revealed that the company cancelled her broadband service over a 12 cent dispute, a rather Comcast-esque failure by the company. And a local Motherboard report highlighted further how the honeymoon phase of Google Fiber is most decidedly at an end: "Kansas City expected to become Google's glittering example of a futuristic gig-city: Half a decade later, there are examples of how Fiber benefitted KC, and stories about how it fell short. Thousands of customers will likely never get the chance to access the infrastructure they rallied behind, and many communities are still without any broadband access at all. Many are now left wondering: is that it? "We were saying that in all likelihood this is too good to be true," said Isaac Wilder, co-founder of the Free Network Foundation and a Kansas City native..."Lo and behold, just a few years later and it's beginning to become clear that [Google Fiber] was just a lot of lip service," Wilder told me. To be clear a lot of Google Fiber's problems are not the company's fault. AT&T, Comcast, and Charter have filed numerous nuisance lawsuits designed to slow the company's use of city and telco-owned utility poles, and protectionist state laws pushed by these same companies often hinder attempts at public/private partnerships with cities. Meanwhile, the company's murky messaging is in part thanks to the fact that Google Fiber has so many various wireless experiments in the oven, it's not really sure which of these technologies are going to pan out -- making publicly communicating the project's future direction a notable challenge. That said, Google Fiber's momentum stall comes as Alphabet and Google as a whole are notably veering away from some of the more revolutionary traits that characterized the company a decade ago. Much like the way Google's net neutrality support has magically all-but-dissappeared during this period, numerous reports have indicated that there's a contingent of executives at Alphabet like Larry Page that frankly just got bored by the whole costly telecom disruption thing. In short, it's possible that Google Fiber successfully pivots to next-generation wireless and fulfills at least some of the lofty promises made early on in the Google Fiber life cycle. But based on the conversations I've had with industry insiders, there would be little surprise if in a few years Google Fiber sold off the entire project to a second-tier telco like CenturyLink, then shifted its focus -- like countless hugely-successful giants before it -- more toward turf protection of its legacy markets. Permalink | Comments | Email This Story

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Techdirt has been covering the EU's plans to "modernize" copyright law for years now, and noted how things seem to be getting worse. Two ideas -- the so-called link tax and the upload filter -- are particularly one-sided, offering no benefits for the public, but providing the copyright industry with yet more monopolies and powers to censor. That much we knew. But two new initiatives reveal that the harmful effects are much, much broader than first thought. The first, dubbed "Save Code Share", comes from the Free Software Foundation Europe (FSFE), and the open source organization OpenForum Europe (disclosure: I am an unpaid Fellow of the associated OpenForum Academy, but have no involvement with the new project). The two groups are concerned about the impact of Article 13 of the draft text (pdf) -- the upload filter -- on coding in Europe, as they explain in a white paper: large businesses, SMEs and individuals relying on current tools to develop software, especially in FOSS [free and open source software] or collaboratively, could be faced with automated filtering which could engender 'false positive' identifications of infringing software, which in turn could cause developers' dependencies randomly to disappear and so literally "break" their builds, resulting in lost business, lost productivity, less reliable software, and less resilient infrastructure. The problem they identified is that widely-used version control systems (VCS) like GitHub seem to meet the definition of "information society services" laid down by the proposed EU Copyright Directive, and as such would be required to filter all uploads to block copyright infringements. Moreover, as the white paper points out, developer Web sites would not only be held responsible for any material uploaded by users without permission of the copyright holders, but would also seem liable for illegitimate distributions of derivative works in violation of the applicable license. GitHub and other similar services could also be required to sign licensing deals with other copyright holders, although what kind and with whom is totally unclear. That's because the ill-thought-out Article 13 was designed to catch unauthorized uploads of music and videos, not of software; but its current wording is such that it would seem to apply to VCS platforms as much as to YouTube -- a ridiculous situation. Destroying the indigenous software industry in Europe is presumably not the EU's intention here, and so the FSFE and OpenForum Europe call for Article 13 to be deleted completely. The other new initiative, an open letter from a coalition of European academic, library, education, research and digital rights organizations, agrees, and wants Article 11 -- the link tax -- thrown out too. Here's why: The extension of this controversial proposal [the link tax] to academic publications, as proposed by the [European Parliament's Industry, Research and Energy] Committee, significantly worsens an already bad situation. It would provide academic publishers additional legal tools to restrict access, going against the increasingly widely accepted practice of sharing research. This will limit the sharing of open access publications and data which currently are freely available for use and reuse in further scientific advances. If the proposed ancillary right is extended to academic publications, researchers, students and other users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short quotations from a research paper in other scientific publications. This will seriously hamper the spread of knowledge. Similarly, the coalition believes that the upload filter required by Article 13 of the current Copyright Directive draft will have a major, negative impact on the world of open access and open science: The provisions of Article 13 threaten the accessibility of scientific articles, publications and research data made available through over 1250 repositories managed by European non-profit institutions and academic communities. These repositories, which are essential for Open Access and Science in Europe, are likely to face significant additional operational costs associated with implementing new filtering technology and the legal costs of managing the risks of intermediary liability. The additional administrative burdens of policing this content would add to these costs. Such repositories, run on a not-for-profit basis, are not equipped to take on such responsibilities, and may face closure. This would be a significant blow, creating new risks for implementing funder, research council and other EU Open Access policies. These latest interventions are important because they show that the reach of the Copyright Directive's worst elements is much wider than originally thought. They emphasize that, by lobbying for these extreme measures, the copyright industry seems not to care what collateral damage it causes in the EU, whether to the public at large, to the local software industry, or to the entire process of scientific research. The white paper and open letter provide additional, compelling reasons why both Article 11 and Article 13 should be dropped from the final legislation. If they aren't, the danger is that the full potential of the huge and rapidly-growing high-tech ecosystem in Europe will be sacrificed in order to prop up the relatively small and sclerotic copyright industries that refuse to adapt to today's digital environment. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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With the trademarking of hashtags now in full swing, it's about time some light was shone on exactly what type of trademarks are granted on them. The trademarking of hashtags isn't in and of itself perplexing, although it does cause this writer some mild annoyance. Locking up language in general is something that should be treated carefully, but doing so specifically with social media language in an ecosystem designed for proliferation and sharing is ripe for conflict. One need only look at how the Olympics treats hashtags to see this, or how big businesses will greedily "protect" the use of hashtags, no matter any actual concern about public confusion over the use of the marks. The point is, the same general problem with the practical application of trademarks is exacerbated by social media: trademarks too often aren't specific or identifying enough. Recently, an example of this has emerged on Twitter in the form of a quickly-resolved dispute between the University of California and the NFL's Chicago Bears. Cal's mascot is "the Golden Bears", you see. The Chicago Bears somewhat irritatingly staked a claim to the hashtag #GoBears, such that the Chicago Bears logo appeared every time someone used the hashtag. The University of California holds a trademark on the hashtag, however, and the school's Twitter account registered its annoyance with the Chicago team in an admittedly congenial way. Appreciate the support guys, but that's the wrong logo 🤔 https://t.co/quF1xTq1xP — Cal Athletics (@CalAthletics) September 6, 2017 Now, to be clear, what the Chicago Bears did was both dumb and irritating. Cal's response was not overly aggressive either. The end result of all of this was that the Chicago Bears backed off and the team logo no longer appears when the hashtag is used. There's no big bad villian in this story. But we're not going to let this go without pointing out that #GoBears simply is not a source-identifying hashtag for the Cal Golden Bears. It's just not. There are a ton of teams that use some flavor of "bears" as their mascots. Here in Chicago, when someone says "go Bears!", there is no confusion as to the reference and the University of California never even enters the mind. So, instead of being a trademark designed to act as a brand identifier, instead this is simply an instance of a university locking up the term in hashtag form. It's exactly the same as what the Chicago Bears did, in other words, when it placed its logo alongside any use of the hashtag: claiming ownership and limiting the use of the term for everyone else. Given that the term is a terrible identifier of the product being discussed, it seems obvious that it never should have been granted trademark rights. Permalink | Comments | Email This Story

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Now that Terre Bonne Parish sheriff Jerry Larpenter has had his immunity stripped by a federal court, it appears he's ready to pay up to keep the damages from mounting. Sheriff Larpenter abused a terrible law -- Louisiana's still-on-the-books-for-some-reason criminal defamation law -- to harass a critic of his. On the way to getting slapped by the court, Larpenter went judge-shopping (bringing his warrant to an off-duty judge) for someone willing to sign his unconstitutional warrant -- a judge who later found the warrant with his signature on it to be perfectly legal. The state court of appeals shot down Larpenter's warrant. The inevitable civil suit that followed found Larpenter being de-immunized in successive decisions, leaving him to actually bear some responsibility for his act of censorship. Elizabeth Nolan Brown reports Larpenter is now making nice with Jennifer and Wayne Anderson, the couple targeted by the sheriff for their criticism. The Andersons had their home raided by Larpenter's deputies, who seized every electronic device they could find, including the Andersons' childrens' laptop. Larpenter has reached a settlement in the civil suit filed against him by Jennifer and Wayne Anderson, whose home was raided by Larpenter's deputies in 2016 after Jennifer blogged critically about the sheriff. "I think the sheriff's finally learned that he can't bully people and violate people's constitutional rights," Wayne, a Houma police officer, told local station WWLTV. "In our case, he stepped on the wrong people's constitutional rights because we knew our rights. Hopefully, he thinks twice the next time he gets his feelings hurt." If Larpenter is going to think twice, it will be because a federal court -- in no uncertain terms -- told him he travelled far outside Constitutional confines and the boundaries of his job to harass a critic. The decision opened with this memorable line: Some qualified immunity cases are hard. This case is not one of them. It went on from there to explain there was no legal precedent that offered cover for his actions, pointing out no reasonable law enforcement officer could possibly believe abusing a statute already found unconstitutional could possibly be Constitutional. The Andersons have already received $50,000 from Terre Bonne Parish for its participation in this debacle. The amount of Larpenter's settlement is still undisclosed. Despite all of this, there's been no action taken by Terre Bonne Parish to punish Sheriff Larpenter for his actions. This will hopefully be corrected. $50,000 has already been transferred from the parish to the Andersons for his 1st and 4th Amendment violations, and it's unclear who will actually be paying for the most recent settlement. Someone who thinks they can use the powers granted to them by constituents to engage in foolhardy witch hunts against critics can't be trusted to impartially handle the job of law and order. Permalink | Comments | Email This Story

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The government loves taking people's money. It likes it so much it gets pretty weird about it. Even considering all we've covered here on the subject of forfeiture, the legal theory deployed by the government in this case is astounding. From the Ninth Circuit Court of Appeals decision [PDF]: The panel reversed the district court's judgment of civil forfeiture of $11,500 under 21 U.S.C. § 881(a)(6) from claimant Charles Guerrero, and remanded for a new trial. When Guerrero, through a friend, tried to post the $11,500 as bail for his wife, the government seized the cash. At trial, the government alleged two theories: that the money was proceeds from the claimant's drug deals, and that the claimant used or intended to use the money to facilitate drug transactions. Charles Guerrero and his wife were no angels. But neither were they high-level drug dealers. Both apparently had crippling heroin addictions and engaged in a small amount of dealing to ensure the incoming flow of heroin. But that's not enough to excuse the government nabbing bail money under the theory it probably came from drug dealing or -- more spuriously -- that it might have been used to purchase drugs if it hadn't been spent on bail. Guerrero had his friend take the cash to pay the bail because Guerrero had no valid ID. Guerrero claims he had about $14,000 in cash in his home obtained from insurance settlements and the sale of a vehicle. The government made its own claims, based on the discovery of drugs in the vehicle Guerrero was sitting in, along with a dog that said, "Yes. That is drug money." While Charles waited outside, Wood went to the MCDC’s bail window and told an officer he was there to post the cash to free Rosalie. Jail officials ran Wood’s records and discovered that he had a criminal history. Coupled with the fact that Wood was attempting to bail out a repeat drug offender with a wad of cash, this prompted jail officials to call Agent Guy Gino of the federal Department of Homeland Security. Agent Gino went to the MCDC, asked Wood a few questions regarding the origin of the $11,500, and requested permission to have a drug sniffing dog smell the currency. Wood agreed. The dog (Nikko) alerted to a drug odor on the money. Agent Gino asked Wood if Nikko could sniff his car. Again, Wood agreed. On the way to the car, the group encountered Charles, who was waiting for Woods to come out of the jail. Charles objected to law enforcement searching the car but Wood nonetheless permitted Nikko to do so. Nikko alerted to a black bag in the vehicle—which, the officers later discovered, belonged to Charles—containing 3.6 grams of heroin. Officers also found an additional $2,971 in cash on Charles. Agent Gino arrested Charles and seized the drugs, the $2,971 found on Charles, and the $11,500 Wood had tried to post as bail. The government seized it all. Guerrero challenged the seizure. The jury at the lower level let the government keep it. Guerrero appealed and the Ninth Circuit Court reversed on the issue of the $11,500. On remand, the government restated its assertions about the $11,500, claiming the Guerrero's had no proof the money had been obtained legally. Failing that, the government claimed the money -- even if obtained legitimately -- would only be used to purchase more controlled substances. Heads, I win. Tails, you lose. But not this time. The Appeals Court will send this case back to the lower court a second time. As it noted during its first pass, there were genuine questions about the origin/destination of the $11,500, but it needed far more than the government's speculative assertions to make this call. Unfortunately, the lower court dismissed Guerrero's argument that the jury's split verdict allowed the government to punish him for thinking, rather than for what he actually did. The district court basically gave the government an unearned win, stating the money's origin was clean but its intended use wasn't. This makes a mockery of due process, even more so than civil forfeiture already does. If someone socks away some cash intending to purchase drugs at some point, but then attempts to pay bills with it instead, the government could theoretically seize the cash before the bills are paid based on the person's arrest history, apparent drug dependency, etc. Given free reign, no one's money is safe, least of all those with criminal pasts. Unsurprisingly, the court finds this theory of future "guilt" a violation the Eighth Amendment. Americans are supposed to be free of cruel and unusual punishments. Taking money from people because they might use it to commit a legal act in the future is cruel and unusual, especially when no actions have been taken indicating the cash is headed for an illegal destination. As the concurring opinion points out, the $11,500 was in process of being handed over to pay bail, making any illegal future use of that $11,500 impossible. The court points out the law simply cannot be read the way government would like it to be. To do so would make any amount of cash seizable from anyone, simply because cash and the possibility for bad things to be done with it are both things that will always exist. On its face... § 881(a)(6) contains no limiting principle and appears to apply whenever anyone, at any point in time, so much as thinks about using money to purchase drugs. One need not look any further than this case to realize how far the literal language of § 881(a)(6) could reach. The only evidence from which the jury could have concluded that the Guerreros intended to use the $11,500 for drugs shows that the couple were heavy heroin addicts who bought and sold drugs regularly. The government offered no specifics. Although it should surprise no one that an addict might think of spending whatever money he has to sustain his addiction, the Guerreros, so far as the evidence indicates, did not act on any such thoughts with respect to the $11,500. 4 In fact, at the time Agent Gino seized their money, the Guerreros had entrusted it to Virgil Wood, who was standing at a bail window in the MCDC asking to bail out Rosalie. Was there some possibility that, prior to Wood walking in the MCDC, the Guerreros intended to use the money for drug transactions? Of course. And is there a likelihood that if the Guerreros got the bail money back they would have used some part of it in the future for drugs? Again, it seems reasonable to answer “of course.” Does § 881(a)(6) reach either back in time to unrealized intentions or forward in time to speculative, inchoate plans? We think not. Because the government's assertions came before the jury instructions, the forfeiture is being overturned on a procedural issue, rather than the governing statute being innately unconstitutional. The government will get a third chance to take $11,500 from the Guerreros, unfortunately. But it won't be able to argue quite as vehemently that a drug user's cash will only be spent on drugs. Permalink | Comments | Email This Story

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We've written a bunch over the past few years about the so-called Inter Partes Review (IPR) process at the US Patent Office. In short, this is a process that was implemented in the patent reform bill back in 2010 allowing people and companies to ask a special "review board" -- the Patent Trial and Appeal Board (PTAB) -- at the Patent Office to review a patent to determine if it was valid. This was necessary because so many absolutely terrible patents were being granted, and then being used to shake down tons of companies and hold entire industries hostage. So, rather than fix the patent review process, Congress created an interesting work-around: at least make it easier for the Patent Office to go back and check to see if it got it right the first time. Last year, part of this process was challenged at the Supreme Court and upheld as valid. However, the whole IPR is still very much under attack. There's another big Supreme Court case on the docket right now which argues that IPR is unconstitutional (the short argument is that you can already challenge patents in court, and by taking them to an administrative board, it creates an unconstitutional taking of property without a jury). There are also some attempts at killing the IPR in Congress. While those play out, however, never underestimate the ability of sketchy lawyers to find loopholes and dive through them in ways that are clearly sticking a giant middle finger up at the law. Such is the case with the pharmaceutical company Allergan, who just "sold" some of its patents for the dry-eye drug Restasis to the St. Regis Mohawk Tribe based in upstate New York. There are currently challenges against the Restasis patents both in court and via the IPR at the PTAB -- and the PTAB has indicated that Allergan is likely to lose its patents. But Allergan has basically short circuited the process just days before the PTAB was set to hear arguments over the patent, and will now tell the PTAB it can't review these patents because of (no joke) the sovereign immunity of the Mohawk tribe. The reasoning goes back, first, to a ruling at the beginning of this year where the PTAB dismissed some reviews of patents held by the University of Florida after the University -- a part of the state of Florida -- made a claim of sovereign immunity, saying it's exempted under the 11th Amendment of the Constitution. While there are some arguments against this, the PTAB agreed. The lawyers representing the University of Florida in this case apparently saw this as an opportunity. They're the same lawyers representing Allergan in this "sale." Of course, it's a sale in name only. The only reason for the sale is to be able to avoid the IPR process. In all other ways, Allergan appears to retain control. From the NY Times article on the deal: Under the deal, which involves the dry-eye drug Restasis, Allergan will pay the tribe $13.75 million. In exchange, the tribe will claim sovereign immunity as grounds to dismiss a patent challenge through a unit of the United States Patent and Trademark Office. The tribe will lease the patents back to Allergan, and will receive $15 million in annual royalties as long as the patents remain valid. So, yeah. This is an insanely blatant attempt at avoiding a process put in place under the law, and where this pharmaceutical company is basically paying off a Native American tribe for the right to avoid a process that might invalidate some patents. As a side note, the tribe's quote on this to the NY Times is pretty ridiculous: “The tribe has many unmet needs,” Dale White, the tribe’s general counsel, said in an interview. “We want to be self-reliant.” Being "self-reliant" means doing something of actual value yourself. It doesn't mean abusing an already questionable loophole in patent law to help giant pharma companies keep their dubious patents and limit the ability of more affordable medicine to get on the market. And, of course, lots of people are predicting that there will be more deals like this in the near future. Either way this is a big deal. Law professor Rachel Sachs has already pointed out that this could go way beyond just the IPR process and could impact claims in federal court as well. And you can be sure that if that's true it will be exploited. There is no "legitimate" reason for this patent sale and license-back other than to avoid having the patent reviewed. It's a sickeningly blatant attempt to avoid the law and to keep a patent from possible invalidation. Even those who support the patent system should be concerned when obvious games like this are played to abuse the system. It doesn't make the system look any stronger. It just shows how desperate some companies are to avoid having their patents looked at closely. Of course, there is some more history on this issue going back quite a while. Almost exactly 10 years ago, we wrote about the ridiculousness of letting state universities claim sovereign immunity to avoid being sued for patent infringement (even while asserting patents against other entities). And, back in 2011, we saw a similar issue pop up with a Native American nation (in that case, the Quapaw Tribe in Oklahoma) able to have a patent infringement case dropped entirely by using sovereign immunity. At the time, we wondered if this might enable a creation of patent-free autonomous zones -- but that didn't really happen. Instead, we get something much, much worse: patent holding giants totally abusing the system to make sure that bad patents can be used to inflate prices and limit competition, even in the field of important life-saving drugs. Permalink | Comments | Email This Story

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Still more evidence continues to be uncovered linking shady reputation management companies to fraudulent defamation lawsuits. This tactic has only recently been exposed, thanks mainly to the efforts of Eugene Volokh and Paul Alan Levy. (Pissed Consumer spotted some questionable lawsuit activity as well, shortly before the Volokh/Levy deluge.) So far, one victim of this fraudulent behavior has obtained a settlement from one of these reputation management firms. It's likely more such judgments are on the way as more details linking firms to bogus lawsuits are dug up. One judge has already passed on info to the US Attorney's office. Now, Eugene Volokh is reporting the Texas attorney general's office has filed a civil complaint against a company called Solvera that, up until recently, performed illegitimate Google takedown services for customers paying upwards of $10,000, using nothing more than bogus libel lawsuits filed by nonexistent companies against fake defendants. The civil complaint [PDF] details the bogus inner workings of the lawsuits filed by shell companies set up by Solvera. (Also, shell defendants.) Solvera Defendants next contract with attorneys, including in Harris County, Texas, to file defamation lawsuits on behalf of their customers. At this point, both the consumer and the attorney are misled. Specifically, Solvera Defendants fail to obtain authorization from, or even notify, its customers before contracting with attorneys to file lawsuits as part of their services. Businesses are surprised to learn, after the fact, that a company with a very similar name to their legal name has been named as the plaintiff in a lawsuit. Second, the attorney has been told by Solvera Defendants that they have already identified and contacted the alleged defamation defendant, the individual who purportedly posted the negative information on the Internet, and the parties have already reached a settlement. Solvera Defendants have already drafted the lawsuit, and send it along with the URL De-Index Agreement to the attorney. Local attorneys are thereby misled, because Solvera Defendants misrepresent that their customer has in fact authorized a lawsuit, when in actuality it is a fictitious business entity. This entity has then granted power of attorney to the local lawyer. Solvera Defendants make this misrepresentation by sending those attorneys a different version of the URL De-Index Agreement than the one that was signed by the customer. This version of the De-Index Agreement includes provisions stating that the consumer has agreed to be represented by the local attorney by granting a power of attorney, provisions that are not present in the original De-Index Agreement. Moreover, these local attorneys are further misled because Solvera Defendants fail to actually identify and contact the original poster of the content the consumer had believed was defamatory. Instead, a California blogger has made an additional posting to the original purportedly defamatory content, and has agreed to be "defendant" in the defamation lawsuit. Identifying the person consumers believe originally posted negative information would be nearly impossible to accomplish from the often anonymous complaints posted on the internet. So, Solvera Defendants have a local California associate sign an affidavit, in which he/she falsely states that he/she is a resident of the Court's jurisdiction, including Harris County, and further falsely states that he/she engaged in all of the conduct alleged in the lawsuit, which extends to more than just the comment that they had additionally provided. This is evidenced by the fact that invariably the affidavit is notarized in California despite the alleged defamation defendant's supposed local residence, in Harris County. A bogus lawsuit is filed in a Texas court, purportedly from a company located outside of the state, featuring a defendant allegedly located in Texas but willing to take a road trip to California to get their confession notarized by a lawyer there. A judgment is secured against the defendant, which is passed along to Google for delisting as supposedly defamatory content. This all goes on without Solvera's customers knowing this is happening. Not only that, but the lawyers contracted to file the legal paperwork apparently have no idea they're participating in Solvera's fraud on the court. If this complaint sticks, Solvera will be blocked from filing more bogus lawsuits and (importantly) from attempting to deep-six any still pending in Texas courts. If the court finds for the state, Solvera will also be required to repay every customer they defrauded, along with $20,000 per violation of the Texas Deceptive Trade Practices Act. Hopefully, most of this will stick and serve as a pricey deterrent to others hoping to turn a profit by lying to the courts. Permalink | Comments | Email This Story

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Unlike other smart home platforms or hardware, Oomi is a universal system encompassing sensors, cameras, lights, and more, all while interacting seamlessly with existing Z-Wave systems like Alexa and Philips Hue. The Oomi Home starter kit allows you to see what's happening at home from anywhere in the world, day or night. You can control your entertainment system, lighting, and much more all from the Oomi Touch—no smartphone required. It's on sale for a limited time for $599. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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What is it with federal government officials and their weird belief that being questioned by the public -- even with dumb questions -- is a criminal offense? Does it take three stories to make a trend? Perhaps. Let's do these one at a time. Scene One: Guy faces criminal charges for asking Senator if his daughter was kidnapped I'm sure that in some recesses of Simon Radecki's mind, the following stunt was a good idea. I'm sure, when he came up with it, it seemed like a clever way to create a feeling of panic within a Senator's mind that might -- just maybe -- make him reconsider the panic his policies might be causing millions of people. And yet, still... this seems like a really dumb stunt: After thanking Mr. Toomey for appearing, Mr. Radecki said, “We’ve been here for a while. You probably haven’t seen the news. Can you confirm whether or not your daughter Bridget has been kidnapped?” The ensuing four-second pause was punctuated by Mr. Toomey uttering “uhhhh,” before Mr. Radecki added, “The reason I ask is because that’s the reality of families that suffer deportation …” See? You can totally see the thought process that would lead to such questioning, even if most of us would also quickly realize what a dumb line of questioning it was and would never let it out of our heads. But dumb questions aren't illegal. But... that hasn't stopped the police from going after Radecki and charging him with "disorderly conduct." Toomey's staffers didn't help matters by saying that the question was "inherently threatening." Except, that's not even remotely true under the law. And there's a fair bit of First Amendment law on what counts as a "true threat." And a hypothetical to make a point is not considered a true threat. Scene 2: Charges dropped against reporter for asking Health Secretary questions too loudly The questioning in this case happened back in May and got some attention. West Virginia reporter Dan Heyman, a reporter for the Public News Service, was arrested and charged with "willful disruption of governmental process" for the truly audacious act of yelling questions at Health and Human Services Secretary Tom Price. Of course, that's kind of his job as a reporter. For the past four months Heyman has been dealing with a set of completely bogus charges because he was doing his job, asking questions of public officials. Thankfully, now, common sense has prevailed, as prosecutors have dropped all charges and admitted that Heyman was just doing "aggressive journalism" that "was not unlawful and did not violate the law with which he was charged." It's just unfortunate that he still had to be arrested and have criminal charges hanging over his head for four months. Scene 3: White House lawyer promises to send the Secret Service after aggressive questioner Sensing a pattern yet? The recently hired lawyer in the White House, Ty Cobb (note: not the dead baseball player) appeared to threaten a questioner with a Secret Service visit for asking pointed questions. Here's the exchange, as posted over at Business Insider: "How are you sleeping at night? You’re a monster," Jetton wrote to Cobb's White House email account on Tuesday night. "Like a baby ... " wrote Cobb, who was brought in to the White House to oversee Trump's legal and media response to the ongoing Russia investigation. The conversation escalated quickly, with Jetton attacking "the havoc" Cobb and his "ilk are causing." "I, like many others, lay awake, restless, my mind dissecting countless scenarios of how bad this could get, what new thing you have dreamt up to pull us down a pathway to hell," Jetton wrote. "You remind me less of a grumpy baseball player and more of that horrid clown from the Stephen King novel." Cobb replied: "Enjoy talking to the Secret Service. Hope you are you less than nine years old as you seem to be ... " As an aside: Cobb appears to have difficulty not responding to any random email that comes his way -- having also been completely and totally fooled by a guy who literally used the domain emailprankster.co.uk to send emails pretending to be other White House officials, eventually leading Cobb to threaten the prankster with possible felony charges. Either way, absolutely nothing in the exchange above deserves (or is likely to get) a Secret Service visit. Look, this isn't that hard. Being a government official -- whether elected or appointed -- is not a fun gig. You have lots of people questioning you and second guessing you all the time. And some of those people are mean. Possibly really mean. But, that's kinda part of the territory when you live and work in a mostly open democracy, rather than an authoritarian dictatorship. People get to ask questions -- even stupid, annoying or scary ones. And we don't arrest them and throw them in jail. Permalink | Comments | Email This Story

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AT&T and hardware manufacturer Arris are being accused of leaving millions of broadband subscribers open to attack. A new report by security researcher Joseph Hutchins highlights how five flaws were discovered in Arris routers used by AT&T and numerous other ISPs around the world. Hutchins notes that some of the flaws may have been introduced after they were delivered to AT&T, since ISPs traditionally modify hardware for use on their network post sale. But many of the flaws were courtesy of the all-too-common tendency to ship hardware with hardcoded credentials and SSH enabled by default: "It was found that the latest firmware update (9.2.2h0d83) for the NVG589 and NVG599 modems enabled SSH and contained hardcoded credentials which can be used to gain access to the modem’s “cshell” client over SSH. The cshell is a limited menu driven shell which is capable of viewing/changing the WiFi SSID/password, modifying the network setup, re-flashing the firmware from a file served by any tftp server on the Internet, and even controlling what appears to be a kernel module whose sole purpose seems to be to inject advertisements into the user’s unencrypted web traffic." Nearly 140,000 devices are impacted, and the Arris NVG589 and NVG599 modems are used by AT&T to power its VDSL broadband (formerly U-verse) service. The vulnerabilities not only open up subscribers to attack, but hardcoded credentials are also to thank for the rise in historically massive DDoS attacks as malware targets such devices for use in botnets. In addition to hard-coded credentials (which you'd think any sensible hardware vendor would steer well clear of at this point), Hutchins notes the devices suffer from default https server credentials, command injection vulnerabilities, and a a firewall bypass on port 49152. AT&T is refusing to comment and Arris tells ThreatPost it's looking into the flaws. Whichever party is to blame, Hutchins noted that the vulnerability was a result of "pure carelessness" at the companies: "Regardless of why, when, or even who introduced these vulnerabilities, it is the responsibility of the ISP to ensure that their network and equipment are providing a safe environment for their end users. This, sadly, is not currently the case. The first vulnerability found was caused pure carelessness, if not intentional all together. Furthermore, it is hard to believe that no one is already exploiting this vulnerability at the detriment of innocents." At a recent Defcon, hackers demonstrated how they were able to break into around half of thirty different commercially-available residential broadband routers without too much elbow grease. Why does this continue to be such a problem? Security experts like Bruce Schneier have repeatedly noted how the same flimsy security we enjoy mocking in the internet of broken things space is all too present in residential broadband router market, thanks in large part to nobody in the supply chain having the financial incentive to do much about it: "Typically, these systems are powered by specialized computer chips made by companies such as Broadcom, Qualcomm, and Marvell. These chips are cheap, and the profit margins slim. Aside from price, the way the manufacturers differentiate themselves from each other is by features and bandwidth. They typically put a version of the Linux operating system onto the chips, as well as a bunch of other open-source and proprietary components and drivers. They do as little engineering as possible before shipping, and there’s little incentive to update their “board support package” until absolutely necessary. The system manufacturers – usually original device manufacturers (ODMs) who often don't get their brand name on the finished product – choose a chip based on price and features, and then build a router, server, or whatever. They don't do a lot of engineering, either. The brand-name company on the box may add a user interface and maybe some new features, make sure everything works, and they're done, too." After that, everybody in the cycle is too focused on making money on the next product or chipset to do the legwork required to keep the hardware or software in these devices updated or secure. This is at the heart of IOT dysfunction, but the problem goes notably deeper than just your easily hacked smart thermostat. Fair or not, the onus then gets put in the lap of the broadband ISP -- since they field the support calls once a customer gets hacked. But swapping out the hardware or troubleshooting existing gear erodes profit margins as well -- at companies that already cut customer support corners to an often comical degree. As script-kiddie oriented malware kits make attacking these vulnerabilities easier than ever, the problem nobody seems to want to fix is going to only get worse. And while some might incorrectly call it hyperbole, that's why Schneier and many other security researchers have been warning for years that there's dumpster fire just over the horizon that could result in a notable loss of human lives. It's a future everybody in the space can pretty clearly see, but few are willing to spend the money to avoid. Permalink | Comments | Email This Story

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The DOJ and Attorney General Jeff Sessions have offered up their official plea for a clean reauthorization of Section 702 surveillance powers. These are due to expire at the end of the year, but so far there's been no concerted effort to subject it to greater restrictions -- at least nothing as cohesive as the opposition to Section 215 renewal that began shortly after the Snowden leaks started. Unlike Section 215 phone records collections, the Section 702 collections at least appear to be somewhat useful in harvesting communications relevant to national security efforts. But these collections should be subjected to even greater scrutiny because of what they contain: communications. While the NSA may have ended its supremely vague "about" email collection program (which harvested emails talking about targets/keywords, along with those to and from actual targets), it appears to only have done so because it couldn't make it stop harvesting US persons' communications. But none of that is mentioned in the Attorney General's letter to Congressional leaders. Instead, the request asks not only for a "clean" reauthorization, but a "forever" one as well. We are writing to urge that the Congress promptly reauthorize, in clean and permanent form, Title VII of the Foreign Intelligence Surveillance Act (FISA), enacted by the FISA Amendments Act of 2008 (FAA), which is set to sunset at the end of this year. Title VII of FISA allows the Intelligence Community, under a robust regime of oversight by all three branches of Government, to collect vital information about international terrorists, cyber actors, individuals and entities engaged in the proliferation of weapons of mass destruction and other important foreign intelligence targets located outside the United States. Reauthorizing this critical authority is the top legislative priority of the Department of Justice and the Intelligence Community. As publicly reported by the Privacy and Civil Liberties Oversight Board, information collected under one particular section of FAA, Section 702, produces significant foreign intelligence that is vital to protect the nation against international terrorism and other threats. Whether or not the collections produce useful intel is beside the point. Congress very definitely should not remove the periodic renewal period for surveillance powers. Doing so would subject the powers to even less oversight. A periodic review period allows Congress to take recent events into account when determining how much surveillance power the government should have going forward. It also permits examination by fresh sets of eyes, some of which won't have been fully assimilated into the "national security above all else" way of thinking. The reasons Congress shouldn't grant a clean, in-perpetuity re-auth are the very reasons Sessions wants Congress to never examine Section 702 collections again. The DOJ refers to a "comprehensive regime of oversight" in its letter, but that phrase greatly overstates the quality of surveillance oversight that's been provided over the past 15 years. Given the administration's view -- along with the views of most of the party in power -- Sessions may get what he wants. If nothing else, he's relatively assured of walking away with a clean reauthorization -- barring the leak of any damning NATSEC documents between now and the end of the year. It may turn out the only reform effort put in place will be the NSA's voluntary ditching of the "about" collection. Permalink | Comments | Email This Story

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The warning bells for the craft beer industry have been sounding for some time now, but the trademark disputes keep on coming. Even as trademark registrations in craft beer grow exponentially and intellectual property attorneys themselves are predicting an explosion in disputes on the horizon, the legal cases and threat letters have begun to grow. What once was an industry known for cooperative and congenial attitudes on trademark issues has devolved into corporate protectionism. But inter-industry disputes aren't the only concern, as the explosion in the craft beer industry has also invited trademark disputes from those outside of the industry. Trademark protectionists can now put another pelt on the wall, that of the Dark and Stormy Night beer made by Picaroons Traditional Ales. The Fredericton-based craft brewery announced through social media it's putting the popular organic dark wheat beer "to rest" after losing a lengthy legal battle with another company over trademark infringement. The Facebook post does not name the other company, but Picaroons Traditional Ales owner Sean Dunbar confirmed it's liquor giant Goslings. Picaroons received a cease and desist order from Goslings, saying the beer infringed on its Dark 'n Stormy cocktail, made with Gosling's Black Seal Rum and Gosling's Stormy Ginger Beer. "We tried, you know, saying 'Please,'" Dunbar said. "We tried arguing that the two products really didn't have anything to do with each other." Those arguments didn't work. And I would think such arguments shouldn't even be necessary for a couple of reasons. First, and, damn it, I'm going to keep shouting about this until the USPTO finally listens: not all alcoholic drinks compete in the same marketplace and trademarks should afford more subtelty to those market distinctions. Wine, beer, liquor, cocktails are all distinct items for a shopper. With sufficient differences in names and branding, nobody is going to mistake a wine company for a beer company, or a beer company for a liquor company. "Dark 'n Stormy" and "Dark and Stormy Night" aren't completely distinct, but they're distinct enough when placed on different types of drinks to be discernable to the common consumer. And about that "Dark and Stormy Night" brand name itself. Dunbar claims he got the term for his beer from a Peanuts comic strip, which is perplexing to me because "It was a dark and stormy night" is a cliche opening for a work of fiction. That's what it's known for and, in some circles, it's used essentially as a joke that references a lack of creativity. A dark 'n stormy cocktail, however, references the stormy weather in the Carribean where the term was coined. I personally never would have made the connection from the beer's name to that of the cocktail, and I'm not sure many others would have either. But, rather than fighting this out in court, Picaroons decided to cave and kill the brand. Picaroons said in its Facebook post that the brew at the centre of the dispute had been in production for 11 years. "We certainly did not go out without a fight, though after months and months we've officially lost the battle and are now retiring our lightest dark beer." Dunbar said the company worked with a local trademark lawyer and "would have loved to defend it to the hilt," but decided taking it all the way to court wasn't worth the expense. "Good bye old friend," the Facebook post said. "RIP." And so another craft beer brand commits suicide rather than fight for its life in court, proving once again that trademark bullying works. Permalink | Comments | Email This Story

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If you have even a passing interest in American sports, you will likely already be aware that Seattle Seahawks player Michael Bennett has been in the news of late due to an incident that occurred in Las Vegas during the Mayweather v. McGregor fight. Police responded to reports of shots being fired in a casino where Bennett also happened to be and, in the chaos that ensued afterwards, officers put Bennett on the ground and cuffed him as he ran away from the shooting. For his part, Bennett claims the officer pointed his gun at him and threatened to "blow his fucking head off" and that the entire detainment was done without any reason other than his being a large black man. He was quite vocal about the incident on Twitter and during press interviews. The Las Vegas police, not surprisingly, aren't loving how Bennett is characterizing what occurred. During a press conference of their own, LVPD representatives couldn't answer as to why Bennett was detained at all during the incident, nor could they explain why the detaining officer's body camera was off during the incident. Despite these shrugs at fairly apropos questions, the union representing the police officers, the Las Vegas Police Protective Association Metro, did manage to fire off one of the whiniest letters to the NFL asking them to "investigate" Bennett for... saying things? There's a great deal there to unpack. The first thing that struck me was how badly the letter attempts to wrap Las Vegas police officers in the American flag. The NFL is currently going through a series of kneeling protests during the national anthem, an expression of rights that has some people quite upset. I'll leave that debate to the side for this post, but by calling the league out for that in the letter before saying it hopes the league won't ignore Bennett's comments about the LVPD, it sure sounds like Las Vegas police seem to think it deserves more respect than the American flag. Which is sort of a weird argument to make. But the crux of the silliness here is that this is a letter from a police union asking a person's employer to investigate an employee for speech it claims is "false and defamatory." It should be obvious that there are legal relief avenues for the police if they feel they have been defamed. It rings as strange for the same police that detained Bennett to be whining to his employer, begging it to then investigate Bennett's conduct, which consists entirely of speech. The NFL has built a name for itself for its heavy-handed, top-down, overtly political approach to investigating its players. It seems pretty clear that this was a petty attempt by the police to then harass Bennett through his employer as a result of his choosing to speak out about his perspective on the incident for which the LVPD itself could not provide the relevant answers to pointed questions. To be clear, I am making no judgment on the nature of the incident itself. Whether racism was a factor or not is an open question. That said, harassing a citizen for his speech on Twitter and in interviews by appealing to the authority of his employer is both weak and underhanded. Update: This post has been updated to clarify that it was the police union that sent the letter, rather than the police department itself. We apologize for the original error. Permalink | Comments | Email This Story

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posted 8 days ago on techdirt
If you have even a passing interest in American sports, you will likely already be aware that Seattle Seahawks player Michael Bennett has been in the news of late due to an incident that occurred in Las Vegas during the Mayweather v. McGregor fight. Police responded to reports of shots being fired in a casino where Bennett also happened to be and, in the chaos that ensued afterwards, officers put Bennett on the ground and cuffed him as he ran away from the shooting. For his part, Bennett claims the officer pointed his gun at him and threatened to "blow his fucking head off" and that the entire detainment was done without any reason other than his being a large black man. He was quite vocal about the incident on Twitter and during press interviews. The Las Vegas police, not surprisingly, aren't loving how Bennett is characterizing what occurred. During a press conference of their own, LVPD representatives couldn't answer as to why Bennett was detained at all during the incident, nor could they explain why the detaining officer's body camera was off during the incident. Despite these shrugs at fairly apropros questions, the LVPD did manage to fire off one of the whiniest letters to the NFL asking them to "investigate" Bennett for... saying things? There's a great deal there to unpack. The first thing that struck me was how badly the letter attempts to wrap the LVPD in the American flag. The NFL is currently going through a series of kneeling protests during the national anthem, an expression of rights that has some people quite upset. I'll leave that debate to the side for this post, but by calling the league out for that in the letter before saying it hopes the league won't ignore Bennett's comments about the LVPD, it sure sounds like the LVPD seems to think it deserves more respect than the American flag. Which is sort of a weird argument to make. But the crux of the silliness here is that this is a letter from police asking a person's employer to investigate an employee for speech it claims is "false and defamatory." It should be obvious that there are legal relief avenues for the police if they feel they have been defamed. It rings as strange for the police department that detained Bennett to be whining to his employer, begging it to then investigate Bennett's conduct, which consists entirely of speech. The NFL has built a name for itself for its heavy-handed, top-down, overtly political approach to investigating its players. It seems pretty clear that this was a petty attempt by the LVPD to harrass Bennett through his employer as a result of his choosing to speak out about his perspective on the incident for which the LVPD itself could not provide the relevent answers to pointed questions. To be clear, I am making no judgement on the nature of the incident itself. Whether racism was a factor or not is an open question. That said, harrassing a citizen for his speech on Twitter and in interviews by appealing to the authority of his employer is both weak and underhanded. Permalink | Comments | Email This Story

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posted 8 days ago on techdirt
While the 20th century was defined by mass production, since the digital revolution there has been talk about what might be the main trend of the 21st century: mass customization. Today, we're starting to see customizable mass-produced offerings pop up in a number of spaces such as apparel, and this week we discuss whether mass customization is finally approaching critical mass. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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