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Five Years Ago This week in 2012, Congress (apparently having learned nothing from SOPA) was pushing forward with CISPA, the new cybersecurity bill. In its original form it was really, really bad — then a new draft was released that was slightly better but still full of problems. Nevertheless, the House Intelligence Committee launched a new Twitter account to misleadingly plug the bill, and it was even supported by companies like Facebook along with a promise not to abuse it — though we challenged them to go a step further and withdraw support until it was fixed to prevent anyone from abusing it. Ten Years Ago This week in 2007, the lacklustre response to the Windows Vista launch was sending ripple effects through the computer hardware industry, though it appeared to be a bad time for consumer electronics in general. Though while some were chattering about Microsoft's demise, cooler heads pointed out that might be going a bit too far. Also this week in 2007: Perfect 10 reared its head with a shotgun spray of lawsuits, a court pointed out the should-have-been-obvious fact that the First Amendment applies on MySpace as much as it does anywhere else, and Techdirt was nominated for a Webby award. Fifteen Years Ago This week in 2002, plenty of folks were busy hacking the iPod to do new things and helping chart the future of mobile devices — right at the same time that thumb keyboards were becoming all the rage in the wake of the popularity of the Blackberry. Google was still in its pre-IPO days and trying to pin down a business model, and this was long before it came into conflict with the Authors Guild which, at the time, was moaning about Amazon for showing used book prices next to new book listings. But we took a look at the other side of that equation and saw how empowering a used book selling platform can be. One-Hundred And Twenty-Three Years Ago We've all heard of the early "nickelodeon" movie houses where five cents in a machine let you enjoy a brief kinetoscope of a butler falling over or whatever. It was on April 14, 1894 that this started with the first paid exhibition of motion pictures at Andrew M. Holland's phonograph store in New York City. Permalink | Comments | Email This Story

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Every year around April 26th, the World Intellectual Property Organization (WIPO) hosts a weird dog and pony show of copyright/patent/trademark maximalism that it calls World IP Day. In the past, we've pointed out that the events and festivities are disturbingly one-sided and frequently clueless. For example, two years ago, WIPO used Bob Marley's famous line "Get Up, Stand Up" as the theme for World IP Day, ignoring the history of Jamaican music, in which the lack of copyright protections in the 50s and early 60s is basically what allowed Bob Marley to become a world phenomenon (and, later, the fact that Marley and Universal Music got tangled up in a fight over copyrights). Anyway, the "theme" for this year's World IP Day is "Innovation -- Improving Lives," which suggests a stronger focus on the patent side of the equation this year. WIPO has a list of suggested activities for World IP Day, including staging exhibitions, setting up a booth at the airport to talk about "IP and the role it plays" in your daily lives (really), or... hosting an "essay competition." It would appear that the Copyright Society of the USA has decided to take this approach and has announced an essay competition. Oddly, this is not on the website of the Copyright Society of the USA, but only over email -- and a recipient of that email has kindly forwarded it to me. As you might imagine, the Copyright Society of the USA tends to be fairly supportive of ever expanding and ever expansive copyright law. It is also -- apparently -- supportive of the idea that it's not so much the creator who deserves the benefits of copyright law, but rather the larger gatekeepers. Such as itself. After all, here are the "rules" for the Copyright Society of the USA's essay contest promoting the wonders of copyright: Pretty simple. If you can't see that, the rules are: Essays must be 700 words or less in English Essays must be original and unpublished. Plagiarized entries will be rejected. Essays must be written by one person. Co-authored essays are not accepted. Copyright of the essays entered will be assigned to the organizer. Yup. So celebrate copyright... by handing your copyrights over to the Copyright Society of the USA for free. Well, perhaps not for free, because (based on no clear criteria) the Copyright Society of the USA will pick three "winners" who will receive credits in $100, $50 and $25 denominations to be used at Postmates.com (an online delivery service). Very exciting. I guess, perhaps, that will teach the young folks this contest is likely targeted at a little something about copyright: which is expect to have a larger, more well-resourced organization demand to take control over your copyrights for a pittance (if anything). That's quite a lesson for World IP Day. Anyway, in the spirit of... "innovation," we've decided that we might as well do our own World IP Day writing contest, but (again, in the spirit of "innovation") let's make it an "anti" contest. Part of the wonders of the internet is that you don't need gatekeepers anymore -- and you certainly don't need them taking control over your copyrights. There are lots of platforms where you can post your own essays, perhaps on the theme of open innovation and how that helps innovation. Or on how intellectual property has been used to stifle and hold back innovation. If you choose to post it with a permissive and open license (or better yet, a public domain/CC0 dedication) and then let us know about it, and we may consider republishing it here to get it some more attention. Or not. You don't need us. And you certainly don't need the Copyright Society of the USA taking your copyright in your little propaganda piece about how copyright is awesome. Permalink | Comments | Email This Story

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Oregon residents will be opening up their wallets and handing out $85,000 to a citizen and her ACLU representation, thanks to a police officer being the only cop on the scene unable to handle being filmed while effecting an arrest. Carrie Medina sued the city of Portland in early 2015 after an officer seized her camera and ended her livestream of an arrest two years earlier. The lawsuit [PDF], filed by the ACLU, contains the full conversation between Officer Taylor Letsis and Medina during the livestream's premature conclusion. It contains some choice highlights in law enforcement overreach and the assertion of nonexistent authority. The confrontation starts with Officer Letsis claiming Medina's phone probably contains "evidence of a crime," and continues on through to Letsis claiming his seizure and search of the phone is neither a seizure or a search but is very definitely something he has the "legal jurisdiction" to do. After some back and forth with Medina about his supposed "legal jurisdiction," Letsis decided to seize the phone and view the recording of the arrest. And by "seize," I mean "rip Medina's phone out of her hand." According to the lawsuit, Medina had offered to provide the video footage to the officer if he gave her a subpoena. After he grabbed the phone, a prompt popped up on the Ustream app to archive the video. Medina, concerned the officer wasn't going to save the video, urged him to archive it. He did, and she then walked him through the process of posting it to a social media site, the suit says. The officer handed the phone back to Medina and ordered her to show him the video and she complied, since he had posted it for her on social media. Then he seized it again. "As soon as Ms. Medina pressed 'play' to start the video, Officer Letsis grabbed the phone from her a second time,'' the suit says. "Officer Letsis did so without warning, and without the consent of Ms. Medina, despite the absence of any probable cause - or any reason at all - to suspect either that Ms. Medina had committed a crime, that the phone contained evidence of a crime, or that the evidence (which he himself had just archived to the Ustream web server) was in any danger of being destroyed.'' The lawsuit goes on to point out Gresham police officials dug their own hole with their post-incident statements, which claimed nothing illegal had occurred and no department policies had been violated. On approximately February 15, 2013, KGW television published a report on the incident. During the report, a person identified as Gresham police spokesman Claudio Grandjean asserted that Officer Letsis' conduct during the encounter had been legal. Officer Grandjean stated: “He wasn't doing something illegal. Now, was he inappropriate, or... or or a little rough, or officious or whatever? We can look at that, but that's not nearly as important as was he doing something illegal." Thus, three days after the incident, the Gresham Police Department took a clear and public position that the actions of Officer Letsis were lawful. And this, from the police chief, issued nearly a month after the incident: In the March 5, 2013 memorandum, the Chief stated that "I highly discourage the seizing of property, or the arresting of persons, for simply recording your official actions without your knowledge." In the March 5, 2013 memorandum, the Chief stated that "I support the reasonable actions of officers to seize cell phones when there is probable cause to believe the recording contains evidence of a crime and there are exigent circumstances to seize the cell phone to prevent the destruction or loss of the evidence," but went on to warn that "[i]f no exigent circumstances that place the property at risk of destruction, you must obtain a search warrant to download the video." According to the ACLU, these statements indicated officers had not received proper training in respecting the First and Fourth Amendment rights of citizens. That pretty much nailed things down case-wise, as proving "failure to train" is a key element in lawsuits seeking to hold government agencies and employees accountable for their constitutional violations. Understandably, the three entities being sued decided to settle [PDF] rather than see this debacle rack up even greater monetary losses in front of a jury. The settlement agreement stipulated that Portland and Gresham must adopt new police policies and training regarding the public’s right to film police activities. The City of Gresham’s new policy under the settlement went into effect in May 2016 and the City of Portland’s new policy went into effect in October 2016. The City of Gresham was also required to pay $85,000 in legal fees to Medina. The victim of police misconduct only asked for legal fees, which she has donated to the ACLU which represented her pro bono. More important to Medina (and the ACLU) was the establishment of department and city policies recognizing the public's right to hold their public servants accountable through public recordings. The ACLU notes, however, that the new policies don't appear to have reached every officer covered by them. Oregon law is now clear that the public has the right to record law enforcement doing their jobs in public, but dos Santos says the ACLU of Oregon still hears from people who have been hassled, detained, or arrested, or who have had their devices confiscated for filming the police, including an incident in Portland last November involving another local activist, Benjamin Kerensa. “We still see arrests, detentions, and seizures simply for filming the police,” dos Santos said. “With this settlement, we hope that law enforcement across the state will finally respect the public’s right to record. Otherwise, we’ll see them in court again.” Old habits die hard. And the oldest habits always seem to be the worst ones. The sooner these are broken (or, conversely, the sooner those who can't break them are forced out of jobs), the less expensive it will be for Oregon's taxpayers. Permalink | Comments | Email This Story

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It's seems like just yesterday that I was writing about how Denuvo's DRM, the once-vaunted but since defeated DRM unicorn, had been patched to Version 4 with the company proclaiming that it was once again out ahead of the pirate groups that had cracked its previous versions. Oh, wait. That actually was yesterday. Anywho, the latest version of Denuvo is being used on several recently released games, out since January, with much made about how those games were once again taking quite a bit of time before cracks for them appeared in the wild. With the company pushing the narrative that protecting the first few weeks of a game's release was where the value of Denuvo really stood, companies using the DRM likely cheered. This week, however, things took a familiar turn for the DRM unicorn. The same cracking group that has pained Denuvo these past several months managed to crack a game using the updated version of Denuvo, 2Dark. With all eyes primed for a release of a game using the new technology (the cracking scene has labeled it Denuvo v4), earlier this month Mass Effect Andromeda was cracked by CPY, the group behind most of Denuvo’s recent pain. Despite some early claims, the title was actually protected by v3, so the big test was yet to arrive. Yesterday it did so, in some style. With its usual fanfare, cracking group CPY announced that it had defeated Denuvo v4 protection on 2Dark, a lesser-known stealth adventure game from the creator of Alone in the Dark. Now, it isn't just those looking to pirate the game that looked favorably on this crack of 2Dark. In fact, the game itself hasn't received a great deal of attention, compared with other games using Denuvo v4, such as the latest release in the Mass Effect franchise. No, 2Dark had a special target painted on its back for breaking its word. The developers of the game had insisted during the crowdfunding process that the game would be released sans DRM, before going back on that promise and using Denuvo at the request of its publisher. On the game’s Steam page, the truth later emerged with a note confirming that the title would incorporate “3rd-party DRM: Denuvo Antitamper.” According to a subsequent interview with Techraptor, that was a result of Gloomywood having to team up with publisher Bigben Interactive who insisted on the protection. It makes it hard to garner that much sympathy, even among those that see piracy as the evil of all evils. After all, all the crack did was keep Gloomywood's promise for them. Permalink | Comments | Email This Story

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As you probably know, each month, the Electronic Frontier Foundation (EFF) posts its "Stupid Patent of the Month" post, highlighting particularly egregious patents that never should have been approved and/or particularly egregious patent litigation around those patents. You might know about this even if you don't follow the EFF's own website, because we almost always repost those posts here on Techdirt, under EFF's Creative Commons' license. In fact, last summer, we reposted EFF's article about US Patent 6,690,400, held by Global Equity Management (SA) Pty. Ltd. ("GEMSA"), an Australian company that has all the hallmarks of a classic patent troll. You can read that post for the details of the patent in question, but suffice it to say, EFF described it as "storage cabinets on a computer" and GEMSA has sued dozens of companies, rarely explaining how they possibly infringe. For example, in suing Airbnb, all GEMSA notes is that the site's user interface "infringes one or more of the claims of the '400 patent." Not surprisingly, GEMSA was not particularly thrilled about being named the holder of a "stupid patent of the month" or to have EFF make fun of its lawsuits. Unlike, say, IBM, who upon being named a stupid patentholder of the month appeared to see the error of its ways, GEMSA decided to really double down. It went to court. In Australia. And got an order telling EFF to take down the article and barring EFF from publishing anything about any of GEMSA's patents. Now, we've written multiple times in the past about Australia's questionable views on internet free speech and prior restraint. However, we've also noted -- quite directly, that the SPEECH Act quite clearly bars such Australian court orders from being valid in the US. It appears that the good folks at the EFF will now be putting that to the test. They've filed for declaratory judgment in federal court in the Northern District of California to have the court say that the court order from Down Under is unenforceable here. You can check out the full filing here or embedded below. The filing goes into fairly great detail about just how really upset GEMSA is. It literally claims that calling its patent "stupid" is "misleading" because the patent "is not in fact 'stupid.'" Very convincing. There are also some bizarre conspiracy theory claims, including saying that the filings in some of GEMSA's lawsuits against Airbnb and Zillow "are not available in the public domain" despite them being available on PACER (and "GEMSA's own press release announcing its first wave of lawsuits attaches a copy of one of the complaints and explicitly notes that they are public records available on PACER.") Whether or not Australians' somewhat twisted views on free speech say that you cannot give your opinion that a patent is stupid, in the US that's very clearly protected speech. Furthermore, here in the US, you cannot bar someone from ever talking about your patents. That's known as prior restraint and, as good old Walter Sobchak from the Big Lebowski eloquently stated: "The Supreme Court has roundly rejected prior restraint." That said, as EFF notes, without a declaratory judgment, GEMSA can continue to threaten EFF with enforcement (it is already demanding that EFF remove the article, pay it money, and get others to remove links). Or, worse, GEMSA might use the Australian court order to get the article delisted from search engines. There is a real possibility of chilling effects: ... the Australian Injunction has cast a shadow over the legality of EFF’s speech about GEMSA’s ’400 patent and litigation, and is chilling EFF’s further speech. Given the present uncertainty concerning the injunction’s enforceability in the United States, EFF feels constrained from speaking further about these topics – indeed, about any of GEMSA’s patents, since the order sweeps that broadly – aside from simply reporting about this declaratory judgment action to its readers. Also of significant concern to EFF is that, absent an order from a United States court declaring the Australian Injunction repugnant to U.S. law and unenforceable here, GEMSA will follow through on its counsel’s threat and successfully use the injunction to persuade American search engines to “deindex” the Article, which would effectively preclude EFF from speaking publicly on this important U.S. legal and political issue altogether. This should be a layup for EFF, but as we know, these kinds of disputes can be both time consuming and costly. But, really, of all the organizations to go after with an attempt to censor their opinions, you've got to be pretty short-sighted to think that EFF is a proper target. Permalink | Comments | Email This Story

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XenApp is an industry-leading solution for virtual application delivery, allowing people to access Windows apps on any device, anywhere. With XenDesktop, business is borderless, giving employees the freedom to work from anywhere while also cutting IT costs. With XenApp built in, XenDesktop can deliver full desktops or just applications to any device. These tools, combined with XenServer create an extensive server virtualization and hypervisor management platform that greatly reduces costs. The $39 Citrix Xen Cloud Mastery Bundle will teach you how to implement and manage the Citrix tools effectively and effeciently. 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 we mentioned a few months ago, we are currently in a First Amendment fight for our very survival against Shiva Ayyadurai, who has announced his desire to shut us down for explaining, in detail, why we feel he did not invent email (given the long history of the development of email that preceded Ayyadurai's particular software application). Ayyadurai has retained the lawyer Charles Harder in this lawsuit, and Harder has been successful in getting another media property, much larger than Techdirt, to go bankrupt and be sold off in the face of a number of similar lawsuits. Last month, we asked for the case to be dismissed for a variety of reasons, including under California's anti-SLAPP law. Ayyadurai has opposed these motions. Yesterday, we filed our reply to Ayyadurai's opposition. We recommend reading our reply carefully, along with all of the other filings in the case, and familiarizing yourself with all of the details in order to make up your own mind. If you believe that free speech and a free press matter in holding powerful people accountable -- or if you are worried about claims by public officials that it's time to "open up" or change our libel laws to go after a press that may report less than flattering things about them -- then please consider contributing to our Survival Fund at ISupportJournalism.com. As I have noted before, this lawsuit has been a massive distraction. It has already forced us to delay multiple projects that we were working on, and to postpone other projects that we were scheduled to begin. It has, similarly, limited our time and resources to continue reporting on a variety of topics that we would normally cover. In short, no matter what the outcome of the actual case, the lawsuit alone has already been tremendously costly for us in terms of how we operate. At a time like this when truly independent reporting is so important, especially on a variety of matters concerning free speech online, net neutrality, copyright, patents, innovation and more, we hope you'll consider supporting our continued ability to report on these topics. Permalink | Comments | Email This Story

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So if you've not been paying attention, broadband ISPs (with help from new FCC boss Ajit Pai) are slowly but surely working to eliminate oversight of one of the least-competitive sectors in American industry. It began with Pai killing off a number of FCC efforts piecemeal, including plans to beef up cable box competition, investigate zero rating, and FCC attempts to stop prison telco monopolies from ripping off inmate families. From there, Congress used the Congressional Review Act to kill FCC privacy protections for broadband consumers. Next up: reversing the FCC's 2015 Title II reclassification and gutting net neutrality. Between this, cable's growing monopoly over broadband (including the rise in usage caps), the sunsetting of Comcast NBC merger conditions and a looming wave of new megamergers and sector consolidation, you should begin to notice there's a bit of a perfect storm brewing on the horizon when it comes to broadband and media competition, anti-competitive behavior, and oversight -- one that's not going to be particularly enjoyable for broadband consumers, or the numerous companies that compete and/or do business with the likes of AT&T, Comcast and Verizon. To that end, most of the internet industry's heaviest hitters -- including Reddit, Google, Amazon, and Netflix -- under the umbrella of the Internet Association (IA) -- met with the FCC this week to urge Ajit Pai to keep the existing net neutrality rules in place. At the meeting, IA CEO Michael Beckerman and General Counsel Abigail Slater argued that things are working well with the rules in place, and that the long-standing industry claim that net neutrality hurt broadband investment is a canard: "IA continues its vigorous support of the FCC’s OI [Open Internet] Order, which is a vital component of the free and open Internet," Beckerman wrote in an ex parte filing that summarized the meeting. "The Internet industry is uniform in its belief that net neutrality preserves the consumer experience, competition, and innovation online. In other words, existing net neutrality rules should be enforced and kept intact. The OI Order is working well and has been upheld by a DC Circuit panel. Further, IA preliminary economic research suggests that the OI Order did not have a negative impact on broadband Internet access service (BIAS) investment." Unfortunately, the plea is likely to fall on deaf ears. Pai has made it abundantly clear he doesn't think that broadband competition, rampant consolidation, or net neutrality are real problems -- whatsoever. In fact, when Pai has spoken on net neutrality, he's gone to rather comic lengths to try and claim that content companies like Netflix are the real villains, while downplaying any and all anti-competitive ISP behavior. At one point, Pai actually went so far as to claim that the fact that Netflix ran a CDN was proof positive that Netflix was the real threat to the internet. The second major problem here is that while companies like Netflix, Google and Facebook are gently lobbying against the FCC's plan via the IA, independently they've been less active than ever in protecting net neutrality. Like Amazon and many other tech giants, Facebook has never really been particularly vocal on net neutrality -- and in places like India they've consistently undermined the entire concept. Google has, contrary to public perception, also been arguably absent from the conversation since around 2010 when it began getting into fixed (Google Fiber) and wireless (Android, Project Fi) services. And as Netflix has grown more powerful, it's been notably less vocal on the subject as well. Yes, these companies may still remain quietly active behind the scenes, but if you're hoping they come to the rescue in the same vocal way they did in the early days of the net neutrality feud, it's likely you're going to be disappointed. And with potentially less corporate firepower backing up their flanks, net neutrality supporters are going to have a steeper uphill climb this go round. That brings us to the third major problem we're facing: the onus to save net neutrality this time is going to fall largely on the shoulders of consumers, small companies, and the startup community. But many of them, bored after a decade of often hyperbolic debate, were happily under the impression that once we had net neutrality rules -- the fight was over. Many still don't understand that net neutrality is a fight that never really ends. Net neutrality (the symptom) certainly isn't getting better until you shore up broadband competition (the disease) -- and there's exactly zero indication that's happening anytime soon. That's not to say net neutrality can't be saved as the fight heats up over the next few months. But unless heavy hitters like Netflix and Google ramp up their opposition, and smaller companies and consumers shake off their apathy and begin waking up to the stage play currently underway in Congress and at the FCC, we're going to enter a new "golden era" of Comcast, AT&T, and Verizon cross-industry dominance that will make the media and internet issues of the last decade seem arguably quaint. Permalink | Comments | Email This Story

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As long-time Techdirt readers will know, Thailand does love it some lèse-majesté punishments. The country's lèse-majesté law -- literally "injured majesty" -- is used to protect Thailand's monarch from any kind of insult, however slight. It's been applied time and again over the years -- we first wrote about it back in 2007. In the past, the Thai government has done all the obvious things like demanding that local ISPs block sites, snooping on its citizens to find out who might be disrespecting the king, and threatening to throw even foreigners in prison for a very long time. But its latest move on the lèse-majesté front is rather a bold one: it has forbidden its citizens from having any online contact with three critics of the Thai monarchy and government. As the Guardian reports: A letter from the [Thai] digital economy and society ministry warned citizens that engaging on the internet with the Thai academics Somsak Jeamteerasakul and Pavin Chachavalpongpun as well as the journalist Andrew MacGregor Marshall could violate the law. All three live in outside Thailand but have large online followings in the country for their commentary about the failings of both the junta and the monarchy. The ministry statement said citizens should not follow, contact or share content from the trio on the internet or social media. The letter added that people who disseminate their information, directly or indirectly, could be violating the country’s Computer Crime Act. The three people concerned are only able to voice their criticisms of the monarchy and government because they live outside the country -- it would obviously be far too risky to do the same inside it. So this latest move is effectively an attempt to forbid Thai citizens from accessing "forbidden" material that lies beyond the Thai government's direct control, and which has proved impossible to block using technical means. It will doubtless be just as futile. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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We've just written about widespread frustration at the slow pace of the shift to open access publishing of academic papers, and about how some major funding organizations are trying to address that. Open access aims to make entire publications publicly available, and that is meeting considerable resistance from traditional publishers who derive their healthy profits from charging for subscriptions. Rather than continue to tackle publishers head-on, an interesting new project seeks instead to liberate only a particular part of each article, albeit an important one. The new Initiative for Open Citations (I4OC) seeks to promote the unrestricted availability of the list of citations that form a key part of most academic articles: Citations are the links that knit together our scientific and cultural knowledge. They are primary data that provide both provenance and an explanation for how we know facts. They allow us to attribute and credit scientific contributions, and they enable the evaluation of research and its impacts. In sum, citations are the most important vehicle for the discovery, dissemination, and evaluation of all scholarly knowledge. As the number of scholarly publications is estimated to double every nine years, citations -- and the computational systems that track them -- enable researchers and the public to keep abreast of significant developments in any given field. For this to be possible, it is essential to have unrestricted access to bibliographic and citation data in machine-readable form. The present scholarly communication system inadequately exposes the knowledge networks that already exist within our literature. Citation data are not usually freely available to access, they are often subject to inconsistent, hard-to-parse licenses, and they are usually not machine-readable. The I4OC aims to address those problems by encouraging all publishers, whether open access or otherwise, to provide the data on citations found in their journals in a form that is structured, separable, and open. "Structured" here means that it is held in a common data form that is machine readable. "Separable" refers to the fact that even for non-open access materials, the citation data is nonetheless freely available. And "open" means that it is released as raw facts, and thus without a license, or uses a CC0 public domain dedication that makes it quite clear that the citation data can be used for any purpose without needing permission. As the I4OC home page explains, a key benefit from this new approach is increased discoverability of published articles, since even if they are not freely available, their citation data will be out in the open. Another is citation data can be analyzed in new and complex ways thanks to its machine-readable nature. Finally, it may be possible to create new services and even new businesses based around the new data resource. All of that is highly welcome, but the fact that a separate initiative was required to make it happen underlines that fact that too much of humanity's knowledge remains locked up behind paywalls, where its full potential is hard to realize. The correct solution to that is not making one element available, but liberating the full texts as open access. And that means real open access, not the subverted kind that Richard Poynder analyzed in his compelling and troubling post "Copyright: the immoveable barrier that open access advocates underestimated". Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+s Permalink | Comments | Email This Story

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I will occasionally get a common question when discussing stories about trademark bullies: why do these bullies actually do this? The easy answer is, of course, because it works. And it works on many levels. For example, the primary targets in actual lawsuits can be bullied out of using names and terms for their businesses or brands, so it works on that level. But that's really just the tip of the iceberg. Where being a trademark bully really works is when it makes lawsuits unnecessary, because other businesses and people are so fearful of the bully tactic. To see that in practice, one need only look at the brewery formerly named Mooselick Brewing Co., which is now rebranding itself as Granite Roots Brewing without putting up a fight against, you guessed it, Moosehead Breweries. Mooselick started selling beer in July 2015 and opened its tap room on Route 12 in Troy soon after with a name that honored their local heritage. “We thought it was fun, interesting and it kind of paid homage to the moose,” Oliver Levick said Monday. “We thought it was one of the coolest of animals in New Hampshire, and that we could have fun and play with and have some moose themes.” It wasn't long before the lawyers for Moosehead Breweries came calling. Levick mentions in the article that he was shocked that trademarks could be so broad as to cover everything using anything moose-related in the alcohol industry. It's a notion familiar to many, with the mind naturally recoiling at the idea that so broad a thing could be locked up by a singular player for a massive marketplace. The actual test for trademark, as you will know, is whether there is potential for confusion by consumers. As with many of the legal threats levied by Moosehead Breweries, that seems as though it would have been unlikely in this case. Except we'll never see that question adjudicated in court, because Mooselick chose to take on the substantial costs for rebranding itself instead. “We didn’t have the resources for a long, drawn-out legal battle,” Levick said. So the owners notified Moosehead of a transition plan and worked on creating a new name and image for the brewery. Levick and his friends Iodice and LoDulce had all grown up in New Hampshire and wanted to pay tribute to their roots and the brewery’s commitment to the state. The warning shot by Moosehead Breweries was all it needed to fire -- so entrenched is its reputation for trademark bullying and its willingness to engage in costly lawsuits. Startups understandably do the math on whether fighting the fight is more costly than simply rebranding. It's unfortunate that what was once a consumer-protection mechanism has devolved into this kind of sanctioned bullying. Permalink | Comments | Email This Story

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By now everyone should know that the IOC and USOC have completely perverted the concept of trademark law surrounding any mentioning of the Olympic Games. It's gotten so bad that the USOC has taken to threatening businesses that tweet out congratulatory messages to athletes, even when those businesses supported those athletes getting to the Olympics in the first place. The USOC seems to be under the impression that tweeting about the Olympics as a business is trademark infringement. It's not. It never was. Yet those social media guidelines put forward by the USOC still exist and, coupled with the USOC's appetite for legal threats and lawsuits, that's typically enough to keep companies from challenging it on the matter. But one carpet cleaning business in Minnesota actually sued the USOC over the social media policy and its violation of that and other companies' free speech rights. Sadly that company, Zereorez, has had that suit tossed by the court on jurisdictional grounds, with the court essentially telling the company to come back after it's been sued by the USOC. Zerorez, based in St. Louis Park, filed suit shortly before the Summer Olympics hoping to clarify whether the USOC could prohibit it from cheering for Minnesota athletes on social media. The company said it wanted to tweet “Congrats to the 11 Minnesotans competing in 10 different sports at the Rio 2016 Olympics!” but could not for fear of a lawsuit by the USOC. U.S. District Judge Wilhelmina Wright in Minneapolis dismissed the case April 4, ruling that, because the USOC never sued or even threatened to sue Zerorez, the court lacked subject-matter jurisdiction. Considering this suit was seeking a declaratory judgment that text Zerorez wanted to tweet out, but was afraid to because of the USOC guidelines, was ok, this can be viewed from the outside as a punt by the court. The judge's order goes to great lengths to outline what satisfies the jurisdictional requirements for a declaratory judgment. To anyone familiar with the USOC's antics, Zerorez's suit appears to satisfy them. Where the court disagrees is on the matter of whether or not an actual controversy exists in this case, with that controversy requiring that Zerorez first plan on engaging in what could be viewed as infringing behavior, which its tweet does in the context of the USOC's guidelines, and secondly that Zerorez has reason to expect to be sued by the USOC. Zerorez's filing pointed to other cases in intellectual property law in which declaratory judgment jurisdiction was accepted if the defendant had a prior history of filing or threatening to file infringement suits. Here the court flatly declines to accept that standard, instead suggesting that Zerorez go ahead and get itself sued by the USOC if it wants to then protect its free speech rights. If news reports of USOC's letters to other companies warning that only official sponsors of Team USA are permitted to use USOC's trademarks on their corporate social media channels create an actual controversy between USOC and Zerorez, a company with which USOC never communicated before this lawsuit, then any company that is not an official sponsor of Team USA could bring a declaratory-judgement action against USOC by asserting the same facts. Such a conclusion would eviscerate the actual-controversy requirement. Here you see the catch-22 that small businesses face in light of the chilling effects of the USOC's antics. The USOC gets to bully smaller entities less capable of defending themselves in court, but escapes the court when a company wants to get what is plainly free speech content declared legal and non-infringing. The choice left to companies via this ruling is: don't exercise your free speech rights, or go get sued first and then try to defend yourselves. Which is beyond unfortunate and trends into being downright sad. If the USOC's guidelines bastardize trademark law, and they do, then that's the reason why so many companies would want to seek declaratory judgment that their free speech is kosher. The problem is the USOC, not the fact that Zerorez hasn't been sued yet. Permalink | Comments | Email This Story

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By now everyone should know that the IOC and USOC have completely perverted the concept of trademark law surrounding any mentioning of the Olympic Games. It's gotten so bad that the USOC has taken to threatening businesses that tweet out congratulatory messages to athletes, even when those businesses supported those athletes getting to the Olympics in the first place. The USOC seems to be under the impression that tweeting about the Olympics as a business is trademark infringement. It's not. It never was. Yet those social media guidelines put forward by the USOC still exist and, coupled with the USOC's appetite for legal threats and lawsuits, that's typically enough to keep companies from challenging it on the matter. But one carpet cleaning business in Minnesota actually sued the USOC over the social media policy and its violation of that and other companies' free speech rights. Sadly that company, Zereorez, has had that suit tossed by the court on jurisdictional grounds, with the court essentially telling the company to come back after it's been sued by the USOC. Zerorez, based in St. Louis Park, filed suit shortly before the Summer Olympics hoping to clarify whether the USOC could prohibit it from cheering for Minnesota athletes on social media. The company said it wanted to tweet “Congrats to the 11 Minnesotans competing in 10 different sports at the Rio 2016 Olympics!” but could not for fear of a lawsuit by the USOC. U.S. District Judge Wilhelmina Wright in Minneapolis dismissed the case April 4, ruling that, because the USOC never sued or even threatened to sue Zerorez, the court lacked subject-matter jurisdiction. Considering this suit was seeking a declaratory judgment that text Zerorez wanted to tweet out, but was afraid to because of the USOC guidelines, was ok, this can be viewed from the outside as a punt by the court. The judge's order goes to great lengths to outline what satisfies the jurisdictional requirements for a declaratory judgment. To anyone familiar with the USOC's antics, Zerorez's suit appears to satisfy them. Where the court disagrees is on the matter of whether or not an actual controversy exists in this case, with that controversy requiring that Zerorez first plan on engaging in what could be viewed as infringing behavior, which its tweet does in the context of the USOC's guidelines, and secondly that Zerorez has reason to expect to be sued by the USOC. Zerorez's filing pointed to other cases in intellectual property law in which declaratory judgment jurisdiction was accepted if the defendant had a prior history of filing or threatening to file infringement suits. Here the court flatly declines to accept that standard, instead suggesting that Zerorez go ahead and get itself sued by the USOC if it wants to then protect its free speech rights. If news reports of USOC's letters to other companies warning that only official sponsors of Team USA are permitted to use USOC's trademarks on their corporate social media channels create an actual controversy between USOC and Zerorez, a company with which USOC never communicated before this lawsuit, then any company that is not an official sponsor of Team USA could bring a declaratory-judgement action against USOC by asserting the same facts. Such a conclusion would eviscerate the actual-controversy requirement. Here you see the catch-22 that small businesses face in light of the chilling effects of the USOC's antics. The USOC gets to bully smaller entities less capable of defending themselves in court, but escapes the court when a company wants to get what is plainly free speech content declared legal and non-infringing. The choice left to companies via this ruling is: don't exercise your free speech rights, or go get sued first and then try to defend yourselves. Which is beyond unfortunate and trends into being downright sad. If the USOC's guidelines bastardize trademark law, and they do, then that's the reason why so many companies would want to seek declaratory judgment that their free speech is kosher. The problem is the USOC, not the fact that Zerorez hasn't been sued yet. Permalink | Comments | Email This Story

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Taser -- manufacturer of law enforcement's favorite electronic battle weapon and the "I'm not a doctor but I play one in courtroom proceedings" creator of arrestee-specific medical condition "excited delirium" -- is branching out and (sort of) rebranding. It's not like Taser doesn't have the less-lethal market sewn up. Its titular device is in the latter stages of genericide -- a catch-all term for any sort of stun gun. It's been busy building a new market: law enforcement body cameras. Under the name Axon, Taser has introduced a number of body-worn cameras, some of them with more advanced feature sets that tie their activation to weapon deployment by officers. Now, Axon is hoping to increase its dominance of the body camera market. Its latest move is to offer free cameras and footage storage to any law enforcement agency that requests it. The pay-nothing-now offer lasts for a year. Once the offer expires, agencies are free to look elsewhere for cameras. But will they? It seems unlikely. Axon claims it will make it easy to migrate stored recordings from its Evidence.com access platform, but data migration of this type is easier said than done. Add to that the fact that this is no ordinary data. It includes footage needed as evidence in criminal trials, etc. Sticking to a system officers and supervisors are already used to would seem like the most prudent move, even if it's not the most affordable option. Axon has gathered a lot of positive press over the past few days. The offer allows cash-strapped law enforcement agencies the opportunity to get into the accountability and transparency business with no initial investment. But this push to deploy "free*" cameras isn't really about cameras. Matt Stroud -- who has tracked Taser/Axon for years via FOIA requests -- points out at The Daily Dot that this business model is nothing new. Axon has been giving away cameras for a few years now. The real moneymaker is access, storage and licensing. Stroud's FOIA work has uncovered multiple cases where agencies have received free cameras. Axon is only charging agencies for Evidence.com usage. Albuquerque's police department received $500,000 worth of cameras for free. But it's paying $223,000 a year just for access to Evidence.com. Storage provided by Axon also comes at a premium: $1.50/GB. More cameras means more storage, which means this part of the revenue stream will just keep growing. On top of that, there's a yearly licensing fee that increases with the number of cameras in use. It's an interesting approach: one that gives away the finite (cameras) but charges a premium for the infinite (licensing, access, storage). But here's the actual insidiousness of the deals Axon's making: In an email, Utility’s CEO, Ted Davis, told me that Axon’s announcement was a “‘Venus Flytrap’ marketing campaign” because it was designed to lure police departments into an Axon contract for the “free” bodycams, only to then overwhelm those departments with storage and licensing fees later on. “The campaign targets an unsophisticated buyer, [but] most larger departments will not fall for this ploy,” Davis wrote. “After all, all of the competitive bidding for body cameras incorporate a total cost of ownership over a five-year or longer lifecycle. Sophisticated buyers wisely measure the cost vs the capability of the product offering, and determine the best fit for the need.” Yes, law enforcement agencies know they're in for a hard sell once the free trial expires. No one would expect anything less.What this free offer does is undercut the competitive bidding process. This process is supposed to keep governments from ending up locked in to uncompetitive deals. But how many cash-strapped governments will turn down "free*" cameras for their cops? Once cops are hooked on Evidence.com, opening the process to an actually competitive process means possibly putting the saved footage at risk. At best, it will be stored locally by departments while fielding bids for cameras/storage/access. At worst, the footage will be almost-useless: a bunch of unsearchable files, no longer organized, sorted, or tagged. If Axon distributes enough of these free cameras, competitors will be driven from the market. And when the competition exits, all the ancillary costs will increase, perhaps exponentially. Governments will no longer have the option to take their business elsewhere. An open bidding process preserves options. Accepting Axon's literally unbidden offer does a whole lot of damage to that process. Agencies may not pay now, but they'll be paying plenty later. Permalink | Comments | Email This Story

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If you want to understand what's wrong with the American broadband industry, you need look no further than Tennessee. The state is consistently ranked as one of the least connected, least competitive broadband markets in the country, thanks in large part to Comcast and AT&T's stranglehold over politicians like Marsha Blackburn. Lawmakers like Blackburn have let Comcast and AT&T lobbyists quite literally write protectionist state laws for the better part of a decade with an unwavering, singular focus: protecting incumbent revenues from competition and market evolution. The negative impact of this pay-to-play legislature is non-negotiable. One state-run study last year ranked Tennessee 40th in terms of overall broadband investment and availability (pdf), and found that 13% of households (or 834,545 Tennesseans) lack access to any high-speed broadband internet service whatsoever. The study found that the vast majority of Tennessee residents still get internet access through slower services like DSL, wireless or dial-up connections, either because that's all that's available, or because they couldn't afford faster options. Like twenty other states, Tennessee long ago passed a state law hamstringing towns and cities looking to improve regional broadband networks. As a result, popular municipal broadband providers like Chattanooga's utility-run ISP, EPB, have been banned from expanding its up to 10 Gbps offerings into any more markets. Attempts to repeal the law earlier this year went nowhere after mammoth pressure from incumbent ISP lobbyists. When that didn't work, one lawmaker tried to pass a compromise bill that would have allowed EPB to expand into just one neighboring county. That proposal was shot down as well, one of the dissenting votes being that of Rep. Patsy Hazlewood, a former AT&T executive. Tennessee residents have increasingly seen through Tennessee's unwavering fealty to some of the most despised brands in America. Some annoyed state residents have gone so far as to spend their own money to wire the state glacially, hilltop by hilltop. In a feeble attempt to try and placate those tired of expensive, slow broadband, Tennessee lawmakers recently passed HB 0529 or the "Broadband Accessibility Act of 2017." The centerpiece of the bill: throwing $45 million in additional subsidies at ISPs, the majority of which will be enjoyed by AT&T. Motherboard correctly points out that the state banned EPB from expanding service to those same users without any cost to taxpayers, but was willing to throw additional subsidies at two giant companies with a mixed track record on putting government subsidies to work: "To be clear: EPB wanted to build out its gigabit fiber network to many of these same communities using money it has on hand or private loans at no cost to taxpayers. It would then charge individual residents for internet service. Instead, Tennessee taxpayers will give $45 million in tax breaks and grants to giant companies just to get basic infrastructure built. They will then get the opportunity to pay these companies more money for worse internet than they would have gotten under EPB's proposal. "Tennessee taxpayers may subsidize AT&T to build DSL service to Chattanooga's neighbors rather than letting [EPB] expand its fiber to neighbors at no cost to taxpayers," Christopher Mitchell, director of the Community Broadband Networks initiative at the Institute for Local Self-Reliance said. "Tennessee will literally be paying AT&T to provide a service 1000 times slower than what Chattanooga could provide without subsidies." Given the repeated billions that have been thrown at incumbents that then consistently find ways to wiggle out of the obligations, resistence to the "throw subsidies at giant ISPs with a long, documented history of anti-competitive behavior and hope that does the trick this time" model is understandable. Especially in a state like Tennessee, where holding giant companies accountable for misdirection of telecom funds has never been a priority. Fortunately, this new bill does make it legal now for electric cooperatives to provide broadband internet access to some areas -- a concession to outraged locals and a small sign of progress. That said, these co-ops will still find themselves hamstrung by Tennessee's other, existing, protectionist laws, which impose all manner of reporting and financing restrictions on anybody not named AT&T or Comcast. Popular companies like EPB -- ranked recently by Consumer Reports as one of the best rated ISPs in the country -- still can't offer service outside of its traditional electric utility footprint under Tennessee state law. It's ironic, in that ISP lobbyists and loyal lawmakers usually try to justify their state bans on community broadband by pretending they were solely interested in protecting state residents from additional taxpayer spending. Yet this is all pretense to justify protecting large incumbent broadband duopolists from having to actually compete. One lawmaker that's actually trying to eliminate the state's restrictions on community broadband perhaps put it more succinctly: "What we have right now is not the free market, it's regulations protecting giant corporations, which is the exact definition of crony capitalism." And yet Tennessee's Marsha Blackburn has been consistently and generously rewarded for the kind of "crony capitalism" she's relentlessly advocated for on the state level. She recently was tagged to replace Greg Walden as the head of the House Energy and Commerce Committee's Subcommittee on Communications and Technology. Since that committee tackles most of the pressing internet-related issues, you can expect Tennessee's particular brand of AT&T and Comcast earlobe nibbling to manifest even more strongly on the federal level moving forward. Permalink | Comments | Email This Story

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Learning how to best manage a team while tackling projects can be invaluable in any work setting. Grab the $39 deal on the Project Management Institute Training Bundle and be well on your way to becoming a project management master. You will learn how to properly plan projects within allotted budgets, how to select the right team, how to best manage risk and much more. The courses will have you prepared to sit the Associate in Project Management (CAPM) Certification from the Project Management Institute (exam fees not included), which will earn you internationally recognized qualifications. 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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Yesterday, we wrote about reports that Arturo Di Modica, the artist behind the famous "Charging Bull" statue near Wall St., was claiming that the new "Fearless Girl" statue that was put up in front of the bull infringed on his copyrights. As we noted in our piece, the only possible claim we could see was a weak moral rights claim, under VARA -- the Visual Artists Rights Act of 1990. However, as we noted in an update to the post (with a helping hand from law professor James Grimmelmann) VARA shouldn't apply. If you read the actual law, it applies to works created after VARA went into effect or to works created before the law went into effect if the title to the artwork has not been transferred from the artist. But, of course, the history here is that Di Modica dumped the statue in front of the NY Stock Exchange as a surprise in 1989, only to have it moved by the city and given a "temporary permit" in a nearby park that is continually renewed. 1989 is, obviously, prior to the enactment of VARA in 1990. And, Grimmelmann argues, Di Modica "transferred the title by accession when he installed it." Of course, Di Modica's lawyers don't appear to care. Late Wednesday, the letter that they sent Bill de Blasio, Mayor of New York, was released, and their legal theories... are... well... let's just say some might compare them to what comes out of the back of a bull. Yes, it does include a VARA claim, but it's not the main claim of the letter. However, since that was the focus of our post yesterday, let's deal with that one first: Additionally, the placement of the statue of the young girl in opposition to the Charging Bull has undermined the integrity and modified the Charging Bull. The Charging Bull no longer carries a positive, optimistic message. Rather, it has been transformed into a negative force and a threat. For example, Mayor de Blasio characterized the Fearless Girl as a symbol of "standing up to fear, standing up to power, being able to find in yourself the strength to do what's right." The inescapable implication is that the Charging Bull is the source of that fear and power and a force against doing what's right. Plainly, the presence of the statue of the young girl has tarnished and modified the Charging Bull: "intended as a symbol of strength by the artist, the bull takes on a menacing air in relation to the girl." This alteration of the Charging Bull and damage to its integrity are prejudicial to Mr. Di Modica's honor and reputation and violate his rights under the Visual Artists Rights Act of 1990, codified as §106-A of the Copyright Law. The Visual Artists Rights Act confers upon authors of works of visual arts, in addition to attribution rights, the right "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation...." ... Here, there is no doubt that State Street Global Advisors intended to distort, mutilate and modify Charging Bull, and did so intentionally distort, mutilate and modify Charging Bull by installing Fearless Girl in opposition to Charging Bull and engaging on its marketing campaign featuring this image. This violation of Mr. Di Modica's rights will continue as long as Fearless Girl remains in opposition to Charging Bull. Oh, what a load of bull. First off, this ignores, as Grimmelmann pointed out, that VARA almost certainly does not apply to Charging Bull (though if this went to court, I imagine Di Modica's lawyers would argue, weakly, that he did not give up the title to the statue when he abandoned it on the road). Second, placing something next to your artwork, even as a comment on it, does not "distort, mutilate or modify" the work. And if the public's interpretation of the Bull has gone from positive to negative, well, sorry Di Modica -- that's life. People's opinions change. The idea that a visual artist could block someone else from placing a work near their own work because it might change how people see the original would create major headaches around the globe. Imagine museum curators being forced to move works of art because an artist protests about how the work next to his or her own negatively impacts how people view it. That's insane. Furthermore, if he's really worried about his "honor and reputation", how do you think the public -- who has overwhelmingly supported the message of the Fearless Girl statue (even if it is just an advertisement for a State Street fund) -- is going to feel about him being the thin-skinned, whiny, petulant artist who demands NY remove it? It seems likely that his actions here will do a hell of a lot more to damage his "honor and reputation" than the Fearless Girl statue does. Anyway, the main claim in the letter, again, is not actually about VARA. Instead, it's even more crazy. Di Modica's lawyers argue (apparently with a straight face) that the Fearless Girl is a derivative work of the Charging Bull, and thus copyright infringement. The statue of the young girl becomes the "Fearless Girl" only because of the Charging Bull: the work is incomplete without Mr. Di Modica's Charging Bull, and as such it constitutes a derivative work of the Charging Bull. The essential importance of placing the young girl statue across from the Charging Bull, as opposed to elsewhere, is highlighted on the website of SSGA, which invites browsers to "[w]atch how the Fearless Girl was created and placed in a spot that made her impossible to ignore." It is only because of the Charging Bull that the young girl statue can be considered "impossible to ignore." Clearly, a deliberate choice was made to exploit and to appropriate the Charging Bull through the placement of Fearless Girl. The inextricable link between the young girl and the Charging Bull has not gone unnoticed. As one commentator writes, "The tiny girl stands bravely face to face with the giant bull, and this spatial relationship of size, orientation, and stance adds depth to the meaning of the symbol." Furthermore, SSGA and McCann New York made conscious decisions to visually link the young girl statue to the Charging Bull. First, the statue of the young girl, just like the Charging Bull, is made out of bronze. Indeed, the patina of the young girl is nearly identical to that of the Charging Bull. Second, they extended the cobblestone paving of Bowling Green into the adjacent plaza. In so doing, State Street Global Advisors created another unifying element between the Charging Bull and the young girl that serves to transform the young girl into the "Fearless Girl." SSGA and McCann New York constructed a marketing campaign around the image of the Fearless Girl--the image of a young girl facing down the Charging Bull. They deliberately placed the young girl statue in direct opposition to the Charging Bull and used key design elements to associate the young girl statue with the Charging Bull. In effect, the Charging Bull has been appropriated and forced to become a necessary element of a new, derivative work: "Fearless Girl: Girl Confronts Charging Bull." This is a direct violation of Mr. Di Modica's copyright. The Fearless Girl was created for commercial purposes: to advertise SSGA and its SHE fund. Because Fearless Girl incorporates and depends upon Charging Bull, SSGA and McCann New York have commercialized and exploited the Charging Bull. A promotional video released by SSGA, which has since been modified, reveals that from its inception, Fearless Girl was conceived and designed in relation to the Charging Bull: The opening scene of the video shows the artist sketching the young girl, with a picture of the Charging Bull beside her. The final scene of that video, is shot from behind the young girl but facing the Charging Bull. The viewer sees only the head and shoulders of the young girl. In contrast the Charging Bull is revealed in its full glory. That image makes incontrovertible the fact that SSGA and McCann New York created the young girl statue to commercially exploit the iconic status and reputation of the Charging Bull. Similarly, the use and distribution of a photograph of both the young girl and the Charging Bull by SSGA and McCann New York is evidence of the commercial use of not only the statue of the young girl, but also of the Charging Bull. This commercialization of the Charging Bull is also a direct violation of Mr. Di Modica's copyright. So much bullshit, so little time. Creating an entirely different artwork to act as commentary on the original is not derivative -- and even if you could argue that it was, it would almost certainly be fair use as transformative. In fact, the letter itself admits flat out that this is transformative. It's a self-defeating threat letter. You can't argue that (a) this transforms the work entirely (as the letter does) and then (b) also argue that it's direct infringement. But this letter does exactly that. That seems like really bad lawyering. And, really, what of the original copyright is being copied here? The only two things mentioned are the bronze patina (which is not copyrightable) and the Cobblestone paving of Bowling Green which is not part of Di Modica's work in the first place, since he didn't even place the Bull statue there (that's where the city later moved it). Finally, the letter also argues that Fearless Girl is trademark infringement, because it was a part of a State Street advertising effort. This part includes a bit of a conspiracy theory about the placement of Fearless Girl: The placement of Fearless Girl opposite Charging Bull also dilutes the Charging Bull's famous trademark. This is a violation of the Federal Trademark Law as codified at 15 U.S.C. §1125(c). As discussed above, State Street Global Advisors installed the statue of the young girl in the plaza adjacent to Bowling Green and extended the cobble stone paving into the plaza. Had the statue simply been installed in Bowling Green, the statue would have fallen under the jurisdiction of the Department of Parks and Recreation. However, because the statue is technically in the plaza, it is now under the jurisdiction of the Department of Transportation. These machinations appear to be an attempt to create a token separation of the young girl statue from the Charging Bull and thereby to circumvent the legal need for Mr. Di Modica's permission to use his Charging Bull. Or, you know, it was the best place to put the statue to make the point it was making. If you squint, maybe, there's barely some kind of argument that because Fearless Girl "uses" Charging Bull as a sort of component of a kind of advertising campaign, there's a trademark issue -- but, boy, I wouldn't want to be the lawyer who has to defend that argument in court. Meanwhile, Mayor de Blasio seems to be taking this all in stride: Men who don’t like women taking up space are exactly why we need the Fearless Girl. https://t.co/D2OZl4ituJ — Bill de Blasio (@NYCMayor) April 12, 2017 We wouldn't move the Charging Bull statue if it offended someone. The Fearless Girl is staying put. https://t.co/Qu7CSbrmQw — Bill de Blasio (@NYCMayor) April 12, 2017 And now we get to see if this actually goes to court. Permalink | Comments | Email This Story

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So we've been talking a lot about new FCC boss Ajit Pai and his plan to not only kill net neutrality, but eliminate FCC oversight of broadband providers almost entirely. Reports recently surfaced indicating Pai has been busy meeting with large ISPs behind closed doors to discuss his plan to kill hard net neutrality rules and replace them with "voluntary commitments" from ISPs. This won't cause any problems, Pai and ISP lobbyists have argued in perfect unison, because the FTC will rush in to protect broadband consumers -- and net neutrality -- in the wake of the FCC's dismantling. We've already noted how this entire theorem is largely bullshit. The FTC doesn't have any real authority over broadband without Congress passing a new law, which ISP campaign contributions will ensure won't be happening. And thanks to some lovely tap dancing by AT&T lawyers (looking to help the company dodge accountability for lying about throttling), a recent court ruling declared that broadband ISPs are largely immune to FTC oversight courtesy of common carrier exemptions. Former FCC staffer Gigi Sohn drove that point home this week in a piece over at The Verge: "...Because of a recent decision from a Federal Appeals Court in California, the FTC can’t prohibit the vast majority of ISPs from sharing or selling your personal information at all. That decision says that if a company provides a common carrier service, the FTC cannot enforce its laws against any of its services, even if they are non-common carrier services like video or online news. So ISPs that also provide mobile or fixed telephone service — which is pretty much all of them — would be completely exempt from FTC oversight. If people understand nothing else they should understand this: the goal here is virtually no real oversight of one of the least competitive, and most anti-competitive industries in America. But it's going to be sold as an improvement and a move toward "more efficient" regulation in an attempt to make killing net neutrality and eliminating regulatory oversight of Comcast sound reasonable. Former FCC boss and one-time dingo Tom Wheeler had already stated Pai's entire argument is a "fraud," pointing out that ISP' lobbyists want all consumer issues simply "lost in a morass" over at the already over-extened FTC. Current FTC Commissioner Terrell McSweeny this week effectively told Ars Technica the same thing, stating the FTC really isn't positioned to provide oversight of the broadband sector: "We are a very hard-working agency but we’re not a very big agency," McSweeny said. "The FTC doesn't have a lot of expertise in network engineering. We're not the FCC in that regard." The FTC receives "millions of consumer complaints every year" across all industries under its jurisdiction, and "we can’t act on every single complaint." Not only is the FTC too over-extended to provide real oversight of the likes of Comcast, Verizon and AT&T -- but McSweeny reiterates that ISPs can simply use the recent court ruling on common carrier exemptions to dodge oversight completely: "In order to make sure that this isn’t just a no-cops-on-the-beat plan, the FTC Act would actually have to be amended by Congress to eliminate the common carrier exemption," McSweeny said. And what, do you think, is the over-under for a campaign-contribution-soaked Congress actually doing that? There's a reason ISPs are spending millions in lobbying to roll back the FCC's Title II reclassification and shift broadband oversight back to the FTC -- and it's not to help the collective American public's complexion. Repeatedly throughout the article McSweeny makes it abundantly clear Pai's entire plan for "voluntary" net neutrality commitments is a joke, and trusting in the FTC to aid consumers in the wake of the looming neutering of FCC authority is a fool's errand: "Moving from a clear ex ante rule around the open Internet and requirements that maintain an open Internet, and moving to this ex post enforcement kind of world is going to strongly tilt everything in favor of the incumbents," McSweeny said. "It will be harder potentially for innovators and edge providers to make sure that they are being treated fairly and in a nondiscriminatory way." This narrative that killing net neutrality and Title II is no big deal because the FTC will rush in to save the day is a misleading canard, but you're going to see it start showing up literally everywhere over the next few months as ISPs fire up their think tanks, consultants, and other policy sockpuppets to support the push in the media. It's clear the public is bored stiff with the net neutrality debate after a decade of often hyperbolic claims, but if Pai succeeds in gutting net neutrality, privacy, and FCC oversight of broadband carriers -- consumers, startups and content companies alike are in for a very real, very bad time in relatively short order. Permalink | Comments | Email This Story

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The recent saga of Denuvo DRM has been fairly fast moving as these things go. Once thought to be the DRM unicorn that video game makers had dreamed of for years, the time it took for cracks to be released for Denuvo-protected games shrunk to months, then weeks, and finally days. It seemed for all the world like Denuvo was destined for the grave. But these things don't always progress in linear fashion. The recently released Bioware title Mass Effect: Andromeda was patched recently for a variety of gameplay functions. Unheralded in the patch notes was the updated version of Denuvo included within it. That updated version appears to be setting back cracking groups, forcing Mass Effect pirates into using the older, pre-patched version of the game. The CPY collective released a crack for version 1.04 of Mass Effect: Andromeda just ten days after its release, making it the latest in a long string ofgames to see its previously unbreakable Denuvo anti-tamper technology quickly crumble. But after last week's version 1.05 update to the game, Reddit user NTStatus noticed that the game's executable now includes a new reference to an "InjectableGTPSteam.pdb" file. That same file path can be found in games like Dead Rising 4, 2Dark, and Nier: Automata, recently released titles known to use a revamped version of Denuvo, which launched in February and has yet to be cracked. Games like For Honor and Sniper Elite 4 are now approaching two months on the market with this new and improved Denuvo protection intact, showing that Denuvo's latest volley in the battle against piracy seems to be holding for now. No sane observer expected the Denuvo folks to simply admit defeat and lay down their arms. It was obvious from the outset that the DRM would be updated in an attempt to stave off the cracking groups that had previously turned the security software into so much Swiss cheese. But it's equally obvious that this is an arms race that will continue on the other side as well, making it ultimately a losing proposition. On a long enough timeline, DRM fails. Always. Even game developers and the DRM makers themselves admit as much, with much of the focus and reasoning for using DRM at all turning on the axis of the pivotal early release sales window for games. The reason why the Denuvo stories from months past were so problematic is that a cracking time of mere days destroys that rationale for using DRM. The updated version restores that rationale... for now. Meanwhile, it's worth repeating that other game developers are embracing better ways to attract both fans and money, typically in the form of fostering bonding connections with fans that keep them from wanting to play great games for free without compensating the creators. It's not as though examples don't abound of DRM-less games raking in huge amounts of money. They do, which makes one shake their head at the DRM arms race all the more. Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
For several years now, we've put out the steady warning that the alcohol industries have a trademark problem. In some ways, it's one of those kinda sorta good problems to have in a goods industry, in that the reason there is a problem at all is because of how well the alcohol business is doing. Not just well in terms of total sales, but also in terms of being an ecosystem that encourages new businesses, startups, and expansion. Those are all signs of a healthy market, but with that comes the trademark problem. With so many new players and and a finite amount of language with which those players can brand themselves, trademark disputes in what has previously been known to be an IP congenial industry have exploded in number. It's become bad enough that the North Bay Business Journal in Santa Rosa, California, smack dab in the middle of wine country, conducted a written Q&A with a couple of intellectual property attorneys to get their thoughts. You can practically hear the frustration at how this is all progressing dripping off of their responses. For instance, when asked about just how many more trademark disputes there are now than there were before, one attorney stated: Over the past 10 years, the number of trademark disputes in the alcohol beverage business, and the wine business in particular, has increased exponentially. It is a function of the number of new producers and new brands in the marketplace. It also reflects the increased awareness by producers of the value of trademarks and just how important brand strength can be to a company's bottom line and long-term success. Put another way, you have more players in the industry and more players within that industry that realize what a bludgeoning tool trademark can be if wielded in a protectionist fashion. That's great for established businesses, and their lawyers, but not so great for growing the industry and supporting innovative new businesses. Keep in mind that there is an implied acknowledgement in that response that the industry grew in an era when trademark disputes were limited. Now that they aren't limited, that will likely impede continued growth. That's bad for consumers, who are supposed to be the net beneficiaries of trademark law to begin with. Especially given another attorney's comments on just how likely confusion is in many of these disputes, particularly within the wine industry. Wine consumers are very sophisticated and spend a lot of time educating themselves by coming to Wine Country and learning about the wines. The wine industry is somewhat unique in that aspect, especially with these higher-priced wines. That’s part of the reason why with so many different brands that are so similar they are able to co-exist. The big issue we face now is with beer and spirits, with dramatic increase of craft beers and spirits. The [U.S. Patent & Trademark Office] considers all alcoholic beverages comparable goods, so we have to spend a lot of time to research brands. It’s a challenge to get a wine mark through when you have thousands of brands out there. I've been screaming this for years now, so it's nice to see the problem articulated by an attorney in the field as well. The USPTO can at least stave off some of this trademark dispute deluge by smartly differentiating between the beverage industries. Having a trademark market for alcohol probably never made sense, but it certainly doesn't make sense now and it's also getting in the way of the industries. Nobody is going to confuse wine for beer, wineries for breweries, or spirit-makers for wineries. That just isn't a thing, certainly not to any degree that would require the USPTO to maintain its non-nuanced stance on the alcohol industry. The attorneys also had advice on sending out C&D notices, which mostly amounted to a Wheatonian mantra: don't be a dick. My advice is to initially keep [the letters] friendly. Usually, folks aren’t infringing trademarks willingly. They just simply did not conduct a clearance search. Matters can more readily be resolved out of court if we take the attitude that people are doing the best they can do with the knowledge they have. If there's any takeaway here, it's that the USPTO needs to get out in front of this and create sub-markets for the alcohol industries. Because they really are separate things, with separate customers and a low likelihood of confusion across them. If that doesn't happen, expect the courts to be filled with trademark cases, even more so than they already are. Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
This is an interesting opinion from the Texas Supreme Court on citing Wikipedia as a dictionary. The underlying case involves an article in D Magazine titled "The Park Cities Welfare Queen." The article purports to show that the plaintiff, Rosenthal, "has figured out how to get food stamps while living in the lap of luxury." After publication, evidence emerged that the plaintiff had not committed welfare fraud. She sued the magazine for defamation. The appeals court denied the magazine's anti-SLAPP motion in part because it held the term "Welfare Queen," as informed by the Wikipedia entry, could be defamatory. The Texas Supreme Court affirms the anti-SLAPP denial, but it also criticizes the appeals court for not sufficiently examining the entire article's gist. Along the way, the court opines on the credibility and validity of Wikipedia as a dictionary. TL;DR = the Supreme Court says don't treat Wikipedia like a dictionary. Apologies for the block quoting, but here's the detail: Wikipedia is a self-described "online open-content collaborative encyclopedia." Wikipedia: General Disclaimer, https://en.wikipedia.org/wiki/Wikipedia:General_disclaimer (last visited Mar. 13, 2017). This means that, except in certain cases to prevent disruption or vandalism, anyone can write and make changes to Wikipedia pages. Wikipedia: About, https://en.wikipedia.org/wiki/Wikipedia:About (last visited Mar. 13, 2017). Volunteer editors can submit content as registered members or anonymously. Id. Each time an editor modifies content, the editor's identity or IP address and a summary of the modification, including a time stamp, become available on the article's "history" tab. Jason C. Miller & Hannah B. Murray, Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites Is Appropriate, 84 ST. JOHN'S L. REV. 633, 637 (2010). Wikipedia is one of the largest reference websites in the world, with over "70,000 active contributors working on more than 41,000,000 articles in 294 languages." Wikipedia: About, supra. References to Wikipedia in judicial opinions began in 2004 and have increased each year, although such references are still included in only a small percentage of opinions. Jodi L. Wilson, Proceed with Extreme Caution: Citation to Wikipedia in Light of Contributor Demographics and Content Policies, 16 VAND. J. ENT. & TECH. L. 857, 868 (2014). These cites often relate to nondispositive matters or are included in string citations. But, some courts "have taken judicial notice of Wikipedia content, based their reasoning on Wikipedia entries, and decided dispositive motions on the basis of Wikipedia content." Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 YALE J. L. & TECH. 1, 3 (2009–2010). While there has been extensive research on Wikipedia's accuracy, "the results are mixed—some studies show it is just as good as the experts, [while] others show Wikipedia is not accurate at all." Michael Blanding, Wikipedia or Encyclopædia Britannica: Which Has More Bias?, FORBES (Jan. 20, 2015), http://www.forbes.com/sites/hbsworkingknowledge/2015/01/20/wikipedia-or-encyclopaediabritannica-which-has-more-bias/#5c254ac51ccf. Any court reliance on Wikipedia may understandably raise concerns because of "the impermanence of Wikipedia content, which can be edited by anyone at any time, and the dubious quality of the information found on Wikipedia." Peoples, supra at 3. Cass Sunstein, legal scholar and professor at Harvard Law School, also warns that judges' use of Wikipedia "might introduce opportunistic editing." Noam Cohen, Courts Turn to Wikipedia, but Selectively, N.Y. TIMES (Jan. 29, 2007), http://www.nytimes.com/2007/01/29/technology/ 29wikipedia.html. The Fifth Circuit has similarly warned against using Wikipedia in judicial opinions, agreeing "with those courts that have found Wikipedia to be an unreliable source of information" and advising "against any improper reliance on it or similarly unreliable internet sources in the future." Bing Shun Li v. Holder, 400 F. App'x 854, 857 (5th Cir. 2010); accord Badasa v. Mukasey, 540 F.3d 909, 910–11 (8th Cir. 2008). For others in the legal community, however, Wikipedia is a valuable resource. Judge Richard Posner has said that "Wikipedia is a terrific resource … because it [is] so convenient, it often has been updated recently and is very accurate." Cohen, supra. However, Judge Posner also noted that it "wouldn't be right to use it in a critical issue." Id. Other scholars agree that Wikipedia is most appropriate for "soft facts," when courts want to provide context to help make their opinions more readable. Id. Moreover, because Wikipedia is constantly updated, some argue that it can be "a good source for definitions of new slang terms, for popular culture references, and for jargon and lingo including computer and technology terms." Peoples, supra at 31. They also argue that open-source tools like Wikipedia may be useful when courts are trying to determine public perception or community norms. Id. at 32. This usefulness is lessened, however, by the recognition that Wikipedia contributors do not necessarily represent a cross-section of society, as research has shown that they are overwhelmingly male, under forty years old, and living outside of the United States. Wilson, supra at 885–89. Given the arguments both for and against reliance on Wikipedia, as well as the variety of ways in which the source may be utilized, a bright-line rule is untenable. Of the many concerns expressed about Wikipedia use, lack of reliability is paramount and may often preclude its use as a source of authority in opinions. At the least, we find it unlikely Wikipedia could suffice as the sole source of authority on an issue of any significance to a case. That said, Wikipedia can often be useful as a starting point for research purposes. See Peoples, supra at 28 ("Selectively using Wikipedia for … minor points in an opinion is an economical use of judges' and law clerks' time."). In this case, for example, the cited Wikipedia page itself cited past newspaper and magazine articles that had used the term "welfare queen" in various contexts and could help shed light on how a reasonable person could construe the term. However, the court of appeals utilized Wikipedia as its primary source to ascribe a specific, narrow definition to a single term that the court found significantly influenced the article's gist. Essentially, the court used the Wikipedia definition as the lynchpin of its analysis on a critical issue. As a result, the court narrowly read the term "welfare queen" to necessarily implicate fraudulent or illegal conduct, while other sources connote a broader common meaning. See, e.g., Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/welfare_queen (last visited Mar. 13, 2017) (broadly defining "welfare queen" as a "woman perceived to be living in luxury on benefits obtained by exploiting or defrauding the welfare system"); YourDictionary, http://www.yourdictionary.com/welfare-queen (last visited Mar. 13, 2017) (broadly defining "welfare queen" as a "woman collecting welfare, seen as doing so out of laziness, rather than genuine need"). In addition, and independent of the Wikipedia concerns, the court of appeals' overwhelming emphasis on a single term in determining the article's gist departed from our jurisprudential mandate to evaluate the publication as a whole rather than focus on individual statements. A concurring opinion by Justice Guzman amplifies the concerns (FNs omitted): Wikipedia has many strengths and benefits, but reliance on unverified, crowd-generated information to support judicial rulings is unwise. Mass-edited collaborative resources, like Wikipedia, are malleable by design, raising serious concerns about the accuracy and completeness of the information, the expertise and credentials of the contributors, and the potential for manipulation and bias. In an age when news about "fake news" has become commonplace, long-standing concerns about the validity of information obtained from "consensus websites" like Wikipedia are not merely the antiquated musings of luddites. To the contrary, as current events punctuate with clarity, courts must remain vigilant in guarding against undue reliance on sources of dubious reliability. A collaborative encyclopedia that may be anonymously and continuously edited undoubtedly fits the bill. Legal commentators may debate whether and to what extent courts could properly rely on online sources like Wikipedia, but the most damning indictment of Wikipedia's authoritative force comes directly from Wikipedia: "WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY" "Please be advised that nothing found here has necessarily been reviewed by people with the expertise required to provide you with complete, accurate or reliable information." "Wikipedia cannot guarantee the validity of the information found here." "Wikipedia is not uniformly peer reviewed." "[A]ll information read here is without any implied warranty of fitness for any purpose or use whatsoever." "Even articles that have been vetted by informal peer review or featured article processes may later have been edited inappropriately, just before you view them." Indeed, "Wikipedia's radical openness means that any given article may be, at any given moment, in a bad state: for example, it could be in the middle of a large edit or it could have been recently vandalized." Even if expeditiously remediated, transient errors are not always obvious to the casual reader. As Wikipedia states more pointedly, "Wikipedia is a wiki, which means that anyone in the world can edit an article, deleting accurate information or adding false information, which the reader may not recognize. Thus, you probably shouldn't be citing Wikipedia." Apart from these candid self-assessments, which no doubt apply with equal force to other online sources and encyclopedias, a more pernicious evil lurks—"opportunistic editing." Because "[a]nyone with Internet access can write and make changes to Wikipedia articles" and "can contribute anonymously, [or] under a pseudonym," reliance on Wikipedia as an authoritative source for judicial decision-making incentivizes self-interested manipulation. Case in point: a Utah court of appeals recently described how the Wikipedia definition of "jet ski" provided "stronger support" for one of the parties in a subsequent appeal than it had when considered by the court in the parties' previous appeal. The court observed the difficulty of discerning whether the change was instigated by the court's prior opinion, perhaps "at the instance of someone with a stake in the debate." Still, some have argued Wikipedia is "a good source for definitions of new slang terms, for popular culture references, and for jargon and lingo including computer and technology terms." Perhaps, but not necessarily. While Wikipedia's "openly editable" model may be well suited to capturing nuances and subtle shifts in linguistic meaning, there is no assurance that any particular definition actually represents the commonly understood meaning of a term that may be central to a legal inquiry. In truth, Wikipedia's own policies disclaim the notion: "Wikipedia is not a dictionary, phrasebook, or a slang, jargon or usage guide." Whatever merit there may be to crowdsourcing the English language, Wikipedia simply lacks the necessary safeguards to prevent abuse and assure the level of certainty and validity typically required to sustain a judgment in a legal proceeding. Take, for example, the Wikipedia entry for "welfare queen," which was first created in November 2006 by the user Chalyres. Since the entry was first drafted, 239 edits have been made by 146 users. But there is no reliable way to determine whether these edits (1) deleted or added accurate information, (2) deleted or added false or biased information, (3) were made by individuals with expertise on the term's usage, or (4) were made by individuals actually representative of the community. As a court, one of our "chief functions" is "to act as an animated and authoritative dictionary." In that vein, we are routinely called upon to determine the common meaning of words and phrases in contracts, statutes, and other legal documents. Though we often consult dictionaries in discharging our duty, rarely, if ever, is one source alone sufficient to fulfill the task. To that end, I acknowledge that Wikipedia may be useful as a "starting point for serious research," but it must never be considered "an endpoint," at least in judicial proceedings. Wikipedia's valuable role in today's technological society cannot be denied. Our society benefits from the fast, free, and easily-accessible information it provides. A wealth of information is now available at the touch of a few key strokes, and a community of Wikipedia editors serves to increase the accuracy and truth of that information, promoting the public good through those efforts. However, in my view, Wikipedia properly serves the judiciary only as a compendium—a source for sources—and not as authority for any disputed, dispositive, or legally consequential matter. To punctuate his skepticism, Judge Guzman's concurrence displays this screenshot: In a footnote, you can almost hear a sneer as he characterizes the screenshot as "Screenshot of unsaved edits to Welfare Queen." My Thoughts It makes sense not to treat Wikipedia as the authoritative citation source. However, I would make the same declaration about many sources, crowd-sourced or not. Often, a range of sources is required to establish a "fact." We especially see the trickiness of treating a single dictionary as an authoritative source, because there are often subtle but crucial differences in dictionaries' definitions of the same term. Indeed, Wikipedia self-acknowledges its limits as a dictionary. In contrast, sometimes Wikipedia is an OK citation for the zeitgeist about an issue, where the citation is for the ranges of issues rather than for the truth of any issue. I was a little surprised that the court didn't discuss the Urban Dictionary as an alternative to Wikipedia as a dictionary (it comes up only in a reference in a footnote in Guzman's opinion). What I like about Urban Dictionary is that it doesn't purport to offer a single definition of any term. Instead, it lists a range of opinions with crowd-sourced voting. In my experience, the Urban Dictionary often fills in the gaps in my "street lingo" much better than any other source, so long as I use it advisedly. I'm paying closer attention to courts' citations to online dictionaries based on my research for my Emojis and the Law paper. As bad as things are between Wikipedia and Urban Dictionary as online dictionaries, things are much worse with emojis because no credible dictionary is trying to provide definitive definitions of emojis. Eventually, as I'll argue in my paper, we'll need the equivalent of an Urban Dictionary for emojis to capture their disparate meanings across online subcommunities. Republished from Eric Goldman's Technology & Marketing Law Blog Permalink | Comments | Email This Story

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The absolute scariest cab ride of my life happened in Rome a few years back, and I'd prefer not to relive that experience, but apparently I might not have much of a choice next time I'm in Italy, as the country recently banned Uber completely, claiming that it was "unfair competition." Now, let's be clear: there are many, many reasons to not like or trust Uber. You certainly have every right to not like the way it goes about its business or the way it treats drivers. You can refuse to use the service all you want and you can tweet #DeleteUber and whatever else you like... and yet you still should be concerned about this. Uber isn't being blocked in Italy because of its business practices. It's being blocked in Italy because the taxicabs there don't like the competition, and a court has ruled that those cabs shouldn't face competition. Again, no matter what you think of Uber's own business practices, it's pretty damn clear that everywhere that Uber or similar services operate, what everyday people tend to get are better options for transportation. It makes it easier for people to get a ride when they need it, it adds much needed supply to the market, and it tends to be a better overall experience (and there's at least some evidence that it also prevents drunk driving). In the end, when it comes to innovation, our general stance around here is that what you need more than anything else is competition. Competition drives innovation. It drives better customer service. Having courts come in and block competition in favor of an organization famous for limiting the number of competitors in the market is never going to be a good thing. If you're upset by Uber's business practices, target those business practices. But doing an outright ban on competition doesn't seem to help anyone, other than the legacy taxi providers. Permalink | Comments | Email This Story

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You're probably quite familiar with the famous Charging Bull statue (also known as the "Wall Street Bull") which is found in Bowling Green Park right off Wall St. in lower Manhattan. The statue was originally placed there as a "guerilla sculpture" by artist Arturo Di Modica without permission. Image by Sylvaln Leprovost under a CC-BY 2.0 license Eventually, because New Yorkers seemed to like the damn thing, the city granted a "temporary" permit allowing the statue to remain (a little ways away from where it was originally placed) -- and so it's remained there, "temporarily," for 28 years. Of course, there have been some conflicts over the bull. In 2009, we wrote about Di Modica suing people for copyright infringement, which seems kind of nutty given that he originally just dumped the statue in the street without getting permission. But, now, Di Modica is taking the copyright craziness up a notch. As you hopefully heard, last month, State Street Global Advisors placed a "companion" statue of a young girl facing down the bull. The statue, called Fearless Girl, was created by artist Kristen Visbal, and was put in place on the eve of International Women's Day, as a reminder that Wall Street doesn't exactly have a history of hiring women or treating them well. Originally designed to be temporary (not unlike the bull), after lots of New Yorkers spoke up, the girl has been given a one-year permit, and many expect that (like the bull) it will remain longer. Image via Wikicommons -- under a CC BY-SA 4.0 license. There have been some criticisms of the statue, but the latest is the most surprising. Di Modica is claiming that it violates his copyright and he's going to do... something about it. The Italian-born sculptor Arturo Di Modica said the presence of the girl infringed on his own artistic copyright by changing the creative dynamic to include the other bold presence. That is... not how copyright generally works (in the US), of course. Except that here, it's unfortunately, a bit more complicated. While most of the rest of the world recognizes a form of "moral rights" alongside copyright, the US has (smartly) rejected that. However, in order to officially ratify the Berne Convention on copyrights, the US was supposed to recognize moral rights, and we did so in a half-assed way, passing a law called VARA -- the Visual Artists Rights Act of 1990 -- now 17 USC 106A, which gives moral rights to visual works such as paintings and... sculptures. Uh oh. Yeah, so under VARA, the artist: shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation So... the question here would be whether or not placing another statue nearby, staring down the bull and making a point about diversity (1) modifies the bull statue in a way that is (2) "prejudicial to" Di Modica's "honor or reputation." Or, there's the more objective way to look at this which is: this is all insane. Di Modica dumped his bull statue on the street nearly 30 years ago to make a point. That he is now looking to use a stretched definition of copyright law to block someone else from doing the same thing referencing his own iconic statue is... just kind of crazy. Importantly, though, this is interesting timing as it relates to moral rights. The US has been correct in (mostly) resisting putting in place a moral rights regime, and focusing on copyright as an economic right. Unfortunately, at this very moment, the Copyright Office is "studying" the issue of whether or not moral rights should be expanded. The first round of public comments has closed (you can read those comments if you'd like), but response comments are open until May 15th. Given this example of moral rights gone mad, perhaps it might be useful for the Copyright Office to be reminded of how moral rights might be used to stifle and stamp out important expression. Permalink | Comments | Email This Story

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It appears the DOJ will no longer be in the business of policing the police. A memo issued by every cop's new best friend, Attorney General Jeff Sessions, states the DOJ will be doing more to empower police and will conduct fewer civil rights investigations of law enforcement agencies. On one hand, it makes sense to have the locals handle their own problems. On the other hand, the locals have repeatedly shown a willingness to ignore abusive policing until the feds are forced to step in. It may be difficult to roll back DOJ agreements and oversight of investigated agencies immediately. It may, in fact, be impossible. Those consent decrees that have made their way through the court system on the way to being put into force would take some serious litigating to roll back. It's not clear the DOJ's interested in attempting an expensive clawback of police oversight and policy changes. It's those that haven't been formalized through this process that are in danger of being scaled back, if not removed completely. The DOJ has filed a motion asking for time to review its proposed consent decree with the Baltimore PD in light of AG Sessions' memo. The DOJ also just finished wrapping up an investigation of the Chicago PD, but statements made by Sessions and President Trump indicate the White House and DOJ are more interested in solving Chicago's crime problem, rather than its police problem. Sessions himself has no interest in police misconduct or systemic civil liberties violations and abuse the DOJ has uncovered over the past eight years. He claimed the lengthy investigation the DOJ's civil rights division performed produced nothing more than "anecdotal" evidence. He made this claim while admitting he hasn't read any of the investigative reports. By not reading the reports, Sessions won't have to deal with contradictory thoughts while shifting the DOJ towards its new position as a law enforcement booster club. Adam Serwer of The Atlantic points out the vast amount of denial Sessions is swimming in. As attorney general, Sessions said he read a summary, but not the full Ferguson report, which found that “95% of Manner of Walking charges; 94% of all Fail to Comply charges; 92% of all Resisting Arrest charges; 92% of all Peace Disturbance charges; and 89% of all Failure to Obey charges” were filed against black residents. But on the basis of the summary alone, Sessions concluded that the report was “pretty anecdotal” and “not scientifically based.” The refusal to believe police abuse could be systemic rather than individual is, in the aftermath of all the data collected by the very agency Sessions now leads, a form of denial. Nor can Sessions’s decision be justified by the familiar excuse that police reforms lead to higher crime rates—the notion that “it is not the responsibility of the federal government to manage non-federal law enforcement agencies,” is a normative standard that would eschew federal oversight of local police regardless of the crime rate or the gravity of any abuse that might occur. This is a problem that's going to be bigger than just the guy sitting at the head of the DOJ organizational chart. Sessions' memo made it clear he actually believes misconduct and discriminatory policing are the handywork of a "few bad apples." That cannot possibly be true unless it's just a "few bad apples" issuing 90% of the summonses and performing 90% of the arrests. Every investigation by the DOJ turns up systemic abuses. Not one has reached the conclusion that the problems would all go away with a handful of firings. Sessions' memo is morale booster for bad cops. It states the DOJ will focus on everything but systemic police misconduct and every excuse will be made to clear cops of wrongdoing. The DOJ's civil rights division at least gave people hope that America's policing could be improved, possibly even rising to the level of "constitutional" most of the time. That hope is now gone. As Adam Serwer puts it, Sessions' DOJ is abandoning the public by turning a blind eye to misconduct by public servants. Sessions’s memo reads as an announcement that it is no longer the business of the federal government if American citizens’ rights are violated by those sworn to protect them and empowered with lethal force to do so. When local governments violate the basic constitutional rights of citizens, Americans are supposed to be able to look to the federal government to protect those rights. Sessions has made clear that when it comes to police abuses, they’re now on their own. For what it's worth, some cities whose consent decrees might disappear thanks to the DOJ's new marching orders are promising to carry on without the federal government's carrots and sticks. Baltimore officials are saying they're not interested in rollbacks or compromises in the proposed consent decree the DOJ wants more time to examine in light of Sessions' "law and order" memo. [Warning: ad blocker-blocking dead ahead.] Any interruption in moving forward may have the effect of eroding the trust that we are working hard to establish," Baltimore Mayor Catherine Pugh said in a statement. The same goes for Chicago, where a consent decree may never be put in place by the DOJ. Chicago Mayor Rahm Emanuel and police chief Eddie Johnson have also vowed to press ahead with reforms within the city's police department, noting that a plan has already been drafted in recent weeks. This is encouraging, even if the statements may end up being more sincere than the follow-through. The discouraging fact is these cities would have likely done nothing about the problems in their law enforcement agencies without the DOJ stepping in. If the DOJ's no longer going to be pursuing investigations of local PDs, it's all in the hands of local officials, and most are willing to ignore issues until they become front-page news around the nation. Permalink | Comments | Email This Story

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We all know that driving while distracted is dangerous. Keep your devices handy and hands-free with the $13 ARMOR-X One-Lock Air Vent Car Mount. Its easy one-lock mounting system locks to your phone and hooks up to the air vent quickly for immediate access, and it rotates 360 degrees so you can find the optimal viewing angle. It's designed to work with most vehicle vent blades and can hold most cell phones even in their cases. 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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