posted 12 days ago on techdirt
Five Years Ago It was the previous week in 2012 that we learned the sad news of the death of the Beastie Boys' Adam Yauch (better known as MCA), and it was this week that the EFF called for an end to the war on sampling as a tribute to his legacy. Little did we know that, the very next day, Tuf America would sue the Beastie Boys over an unauthorized sample, which is some stunningly insensitive timing. And that wasn't the only copyright fuckup related to MCA's death — the co-creator of The Chappelle Show uploaded a previously unaired video of the Beastie Boys preforming for the show, only to have it taken down by a Viacom copyright claim. Ten Years Ago This week in 2007, NBC was getting in on the Viacom/YouTube lawsuit with an amicus brief against the latter, while the government of Thailand was blocking the site entirely and considering its own lawsuit. Newspaper publishers, struggling to adapt to the web, were alternately scraping together data to portray their digital efforts as successful and blaming the internet for all their industry's woes. And "psychic" (read: mediocre magician) Uri Geller was abusing the DMCA and filing lawsuits in an attempt to censor a popular debunking of his little tricks by James Randi. Fifteen Years Ago This week in 2002, we took a look at the absolute mess that was MusicNet, the attempt by major labels to offer a competitive digital music platform. The world was still for some reason debating whether video games are free speech, and a judge ruled that the DMCA was constitutional via an odd distinction regarding speech and software. Before mobile phones replaced the landline all but entirely, there was an earlier fear about them replacing people's second phone lines. And long, long before the west would see anything similar, Japan was adding wi-fi to 4000 McDonald's locations. One-Hundred And Seventy-One Years Ago America's oldest weekly newspaper that is still in publication is the Cambridge Chronical, and it was on May 7th, 1846 that the first issue was published, just a few days after Cambridge was incorporated as a city. Of course, like most old community newspapers, its recent history of sales and mergers has left it somewhat disconnected from its roots. Permalink | Comments | Email This Story

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Welp. What was that we were saying about the problems of the NSA creating hacking tools that leak, rather than helping patch security flaws? Oh, right. That it would make everyone less safe. And here we are. With a global ransomware rampage, referred to as "WannaCry" putting tons of people at risk, thanks to leaked NSA malware: Leaked alleged NSA hacking tools appear to be behind a massive cyberattack disrupting hospitals and companies across Europe, Asia and the U.S., with Russia among the hardest-hit countries. The unique malware causing the attacks — which been spotted in tens of thousands of incidents in 99 countries, according to the cyber firm Avast — have forced some hospitals to stop admitting new patients with serious medical conditions and driven other companies to shut down their networks, leaving valuable files unavailable. Specifically, it appears that the ransomware is using an NSA tool called ETERNALBLUE, which was leaked in April by Shadow Brokers. This was among those that were quietly patched by Microsoft back in March, but not everyone installs security patches in a timely manner. Indeed, as some are reporting, some of the victims -- including the National Health Service Hospitals in the UK -- are running ancient Windows XP, an operating system that is not even remotely secure, and is no longer supported. Thus, there's some debate online about whether the "problem" here is organizations who don't upgrade/patch or the NSA. Of course, these things are not mutually exclusive: you can reasonably blame both. Failing to update and patch your computers is a bad idea these days -- especially for large organizations with IT staff who should know better. At the same time, the fact that this hack is built off of a leaked NSA hacking tool highlights a couple of key points: The NSA's dual-hatted offensive & defensive structure is damaging: The NSA plays both offense and defense on computer security. That is, it is supposed to hack into other systems, but also help protect our systems. But it's quite clear that the offensive capabilities are valued much more than the defensive ones -- and that's a problem. Once again, it appears that people in the intelligence community are not doing a clear cost-benefit analysis of the tools that they use. They like their toys, but they rarely seem to take into consideration what happens should those toys get out. Once again, this reinforces why we should not allow backdoors to encryption or any other such vulnerability. Over and over again, the proponents of backdooring encryption have insisted that it can be built in a "safe" way, where only government will get the backdoor access to encryption. The fact that some of the NSA's most powerful hacking tools have not only been leaked but are now wreaking havoc around the world, should put a complete end to the "going dark" debate. But it won't. It's not safe, but many in the law enforcement community, in particular, are in denial about this. These problems are not new. Hell, we've been talking about both of them for the better part of a decade already. But this rapid spread of WannaCry is putting an exclamation point on those arguments. Unfortunately, the cynical side of my brain says this warning will still be ignored. Permalink | Comments | Email This Story

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A few months back, I saw some news about a crowdfunding project on IndieGogo, called Titan Note. It was a little a cylindrical device that acted as a microphone, and the guys behind the project insisted that it could transcribe notes with fairly incredible levels of accuracy. The device got some press coverage -- including a quite reasonably skeptical piece at The Verge, entitled "No way this transcription gizmo is as good as it claims to be." There was a lot more skepticism around the project in the comments to the project as well. On top of that, the project's marketing pitch seemed... wrong. That is, it positioned the device as a thing that you could use to "stop taking notes" in classes and meetings in order to pay better attention and learn more. But... that's just wrong. Because the process of taking notes yourself actually helps you commit things to memory. That is, taking notes helps you pay better attention, and thus if you actually used the device the way it was advertised, you might get less out of lectures and meetings. All that said, here's a confession: I still backed it. I was already skeptical -- in part because of the mis-targeted marketing and because the video looked too good to be true, given the state of transcription products in the market, and I had read that Verge article. But, there was an early bird deal that made it pretty cheap, and I figured that even if it was just a so-so product, it could have some use, such as making it easier to transcribe videos and podcasts for posts here on Techdirt. Given the low price of the early bird, I figured maybe it was worth the risk that the product sucked... or didn't exist at all. Eventually, the product raised over $1.1 million -- as it announced in a press release. But, late last night I got an email from IndieGogo saying that the project had been shut down and all funds refunded. IndieGogo told the Verge that the project had violated its terms of service -- which could mean lots of things. If anything, I'm more relieved than anything else. I had kind of regretted backing it in the first place, given the skepticism I had over the product. But, that alone wouldn't make this much of a Techdirt story. Instead, what made this a Techdirt story is this, from the Verge: When we covered the Titan Note in March, we suggested the company was perhaps exaggerating the capabilities of its product. After all, we said, if Apple or Amazon can’t produce transcription software as accurate and speedy as this, what chance does a company with no commercial history have? We later received a DMCA takedown notice for using of Titan Note’s product imagery to illustrate our story. What a bunch of jerks. Sure, you can say that DMCA'ing the "images" rather than the actual story is marginally more defensible... but even that's not true. Those were marketing materials that the company released for the clear purpose of having the press promote the device. The only purpose behind a takedown notice was in anger over a skeptical report on the product. At the very least, that shows that Titan Note itself doesn't have much confidence in its own product. If I'd known it was a company that abused the DMCA to try to hit back at criticism I never would have backed it in the first place. Such companies are not trustworthy at all. Permalink | Comments | Email This Story

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Okay, let's be quite clear here: this is not some crazy new thing that the FCC is doing, but it's important for members of the public to understand what's happening. As lots of people have been commenting (some of which are fake) on the FCC's proposed plan to rollback net neutrality, the FCC will be temporarily be shutting down the ability to comment. This is not in response to the fake comments. Nor is it in response to the site being overwhelmed -- whether by John Oliver or [snort!] random DDoS attacks that no one else can see. Rather it's... to give the FCC a moment of peaceful reflection. No really: Under the Commission’s long-standing rules that apply to all proceedings, all presentations to Commission “decision-makers” that concern a matter listed on the Agenda are prohibited during what is known as the Sunshine Agenda period. This means that during this brief period of time, members of the public cannot make presentations to FCC employees who are working on the matter, and are likely to be involved in making a decision on it, if the underlying content of the communication concerns the outcome of the proceeding. Thus, for example, during this brief period of time, the Commission’s rules generally prohibit members of the public from submitting comments through the Commission’s website addressing the merits of the Restoring Internet Freedom Notice of Proposed Rulemaking or any other item to be considered at the May 18 meeting. The Commission adopted these rules to provide FCC decision-makers with a period of repose during which they can reflect on the upcoming items. Apparently, the geniuses at the FCC don't know how to just not read the incoming comments for a few days. Imagine if other businesses put up signs that said "Please, no emails, I need a period of repose to reflect on upcoming business." Most people would think that's crazy. Look, if the FCC wants time alone, it should either just stop looking at the comments for a few days or build a system that holds the comments in transit until the "Sunshine" period is up. While I'm sure some folks will insist that this is being done to stop the public from commenting, that's not true. It's just a dumb rule that the FCC has that it should dump, in part because of just how clueless and out of touch it makes the FCC look. Meanwhile, if you do still feel the need to comment, the EFF is doing what the FCC itself should do and has set up its own page at DearFCC.org to hold any comments after midnight tonight (when the Sunshine period goes into effect) until comments open up again. That form is useful, though I generally don't like form mailers that have text that you cannot change, as the EFF's does (it lets you add in additional comments, but has some permanent text). Either way: the important thing is this: if you want to add your comments to the record on net neutrality (AND YOU SHOULD), you should get in a comment today or you'll need to wait a week or so until comments open up again. Meanwhile, since the FCC apparently needs this brief respite to "reflect" on "upcoming items" such as net neutrality, does this mean that we won't be seeing Ajit Pai or his staffers being quoted in the news and on Twitter mocking those who oppose his plans? Or, is that still allowed while they "reflect"? Permalink | Comments | Email This Story

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While most minds will naturally recoil at the idea of a single company getting a trademark on an entire color for use in a certain marketplace, it's a thing that exists. And it exists widely enough that even smallish entities are getting in on this game. Far from the game T-Mobile likes to play in pretending it owns all uses of the color magenta in every market, it's becoming more common to see lesser known companies trademark base colors such as purple and yellow for their markets. If the idea that these basic colors can be locked up commercially in this way strikes you as laughable, your antennae are tuned correctly. But as this goes is useful in one particular way: it produces some truly hilarious content from the lawyers when it comes to enforcing these broad color trademarks. The most recent example of this would be Tough Mudder Inc., the company that collects money from people who want to run an obstacle course, which sent a threat letter to a local Rotary Club for putting on its own charity obstacle run and daring to use a color you just might recognize as common. Members of the Raymond Area Rotary Club are seeing red after being warned that the club’s use of the color orange to promote its upcoming Thunder Run 5K obstacle race violates a trademark held by Tough Mudder Inc., a large organization that holds similar obstacle races worldwide. In his email, Tough Mudder associate counsel Michael Rosen wrote that the club had engaged in “significant use of the color orange” on its website, www.thunderrunnh.com. “As you probably know, we have an obligation to police our intellectual property. Accordingly, we have a federal trademark to such color in connection with obstacle course mud runs, so we are kindly asking that you refrain from such significant use on your website,” Rosen wrote in his email. A concern about a "significant use of the color orange" is one of those things that only an out of control trademark culture can produce. In no other arena would that kind of silliness be tolerated, but because the Trademark Office has declined to exert even the barest amount of scrutiny on the matter of trademarking colors, here we are. By the way, here is an image of the "offending" site side by side with that of Tough Mudder. If your face isn't in your palm at this point, it should be. The folks at the Rotary Club are understandably irritated. And they chose to let it show when communicating back to Tough Mudder Inc. Rotary member Joe Pratt, the Thunder Run course director, was surprised to hear from Tough Mudder. “My first reaction was amusement, and I was impressed that we would show up on their radar,” said Pratt, a Nottingham resident. Pratt fired off an email response to Tough Mudder that said, in part, “I’m going to put off an admonishing call to our pro bono webmaster since I am fairly certain you boys are not going to spend significant assets or energy to deal with the laughable implication that we are encroaching, through color trickery, on your trademarked intellectual property. It is somewhat disconcerting that in David and Goliath form it is possible to litigate against a nonprofit that has a primary goal to eradicate polio worldwide.” It's hard to say the snark in the email is undeserved. This is the problem with allowing base and common colors to be trademarked in this way. It's one thing is some specific shade of a color has gained significance in the marketplace, but nobody equates the color orange with Tough Mudder. Orange is orange. To that end, the Rotary Club has said it isn't changing its coloration for this year's event, though it might for future events. Pratt said the club might consider changing the color for next year’s event, but not this year. “If we have to go to mauve or burnt cayenne, maybe we will next year,” he said. Funny, but sad. Permalink | Comments | Email This Story

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Apparently enough time has passed since the last episode of (attempted) copyright thuggery that someone feels it's time to take their IP wheels out for a disastrous spin. A student-focused political action group is the recipient of a bogus cease-and-desist demand from a local non-profit. BugPAC was formed from the ashes of members' respect for local politicians and school administrators, as detailed in the origin story at its website. At the May 4, 2015, meeting, student leaders went to the Borough Council and requested additional street lights in downtown alleyways heavily traveled by students. The proposal was dismissed virtually out of hand. In response to the request, Councilwoman Theresa Lafer implied that if the lights were installed, students would gather around those lights like bugs and cause property damage. And thus, the BugPAC was born. The group began advocating for candidates it felt might be more responsive to student issues. It produced a promo video using some footage of public council meetings. The BugPAC Campaign to reclaim State College released a video on its Facebook page early May 1 explaining the strengths of its endorsed candidates — Michael Black for State College Mayor and Marina Cotarelo, Evan Myers, and Dan Murphy for Borough Council. The video also highlights anti-student sentiments from current Borough Council members and current State College Mayor Elizabeth Goreham using C-NET footage from Borough Council meetings, which is all available for free on the C-Net website. C-NET, however, apparently doesn't feel the footage of public meetings belongs to the public in any way, shape, or form. Four days after BugPAC posted its video, it received a threat-o-gram from C-NET. C-NET claims all the video it hosts is "solely" its property, even if it's only engaged in documenting meetings open to the public. Even if we grant C-NET this part of its IP assertions, there's still a little thing called fair use, and that's very definitely what BugPAC's use of C-NET clips is. However, C-NET clearly doesn't think so. It claims in its letter that it "reviewed" the video and proactively determined BugPAC's use of the clips wasn't "fair use." This is a hilarious conclusion to reach as a complainant. C-NET is not just wrong about fair use in the expected way. It's wrong about fair use in a very novel way -- one that involves making very ill-informed decisions on behalf of the accused. Kevin Horne of BugPAC has not only refused to take down the group's video, but has fired back with a lengthy explanation of fair use and how the disputed video's use of C-NET clips is clearly that. If C-NET's legal representation takes the time to read the entire letter, it may be the first time its lawyers have actually perused the legalities of the right C-NET tried to preemptively deny BugPAC. Horne's letter also goes on to attack C-NET's attempt to limit the public's use of public meeting recordings. “BugPAC has reviewed your bald allegation that you “reviewed the Video and determined that [BugPAC’s] use of C-Net material does not qualify as ‘fair use’ under the Copyright Act” and believes, as set forth above, that such a claim lacks merit,” he wrote. “Beyond the legal analysis is the question of morality and proper use of public resources to promote the public welfare and transparency in government. The public has the right not only to access C-Net material, but to make commentary on it. In C-Net’s case, it plays a crucial function in the democratic process by recording and archiving public meetings of great consequence. These are elected officials in a public forum. It is not for C-Net to deny our right to present that information to voters or for the voters to consider it. C-Net’s current policy works against a reasonable definition of the common good.” This should be enough to shut C-NET up about its unviolated copyright. Then again, it might not. There are other issues possibly at play here. BugPAC endorsed Michael Black for State College Mayor in its video. As BugPAC notes in its post, C-NET's executive director is married to a competing mayoral candidate. This may be why C-NET was right on top of the alleged infringement within four days of the video's posting. If so, this attempt to fight unliked speech by threatening the free speech of others (rather than using the less popular "MORE speech" option), C-NET and its apparent favored mayoral candidate could be in for more unscheduled public appearances. Permalink | Comments | Email This Story

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Yes, let's get this out of the way already, so you don't need to make this joke in the comments: as a social network, MySpace is considered pretty damn dead already. It lost its cool many, many years ago. And I do still love to point out this 2007 article suggesting that MySpace's dominant position in the social networking market was almost impossible to crack (that didn't age well). But that's not what this post is about. You see, MySpace, still does exist -- you can even visit it and double their traffic for the day. Even as the punchline in bad jokes, MySpace exists and (believe it or not) Time Inc. actually owns it, having bought the company, Viant, that owned it previously. This story, however, is about how, soon after Time took over MySpace, its lawyers literally tried to hide the company from a plaintiff (and the court) by having the company play dead -- even though it was very much alive. I'm not exaggerating. Time Inc. appeared to play a bunch of legal shenanigans to pretend that MySpace no longer existed, even as the company kept operating -- to the point that Viant's CEO was publicly hyping MySpace. Hell, months after Time Inc. tried to pretend MySpace was dead, Time's CEO was talking up how amazing MySpace was in the press. The background here: years ago, a guy named Stephen Aguiar was arrested and convicted for drug distribution. He's in prison, serving 25 years. Sometime after his conviction he discovered that some of the evidence against him, that was supplied by MySpace (way back when MySpace was still a big thing), quite likely violated the Stored Communications Act. Additional background: We've written about the Stored Communications Act before. It's a part of the Electronic Communications Privacy Act (ECPA) that controls what kind of electronic information can be given up without a warrant. As we've also discussed for years, ECPA is woefully out of date for a variety of reasons including the fact that it says that all communications stored on a server for more than 180 days should be considered abandoned and no longer need a warrant to access. But communications less than 180 days do require a warrant. Back to Aguiar. In late 2013 he discovered that back in 2009, the DEA sent an administrative subpoena to MySpace, under the Stored Communications Act, asking for certain content related to his MySpace account. An administrative subpoena is not a warrant. As we've described in the past, it's basically a fishing expedition by law enforcement, in which they send an official looking document asking for information they may not actually have the rights to. MySpace, back in 2009, apparently had lawyers who fell for this and handed over basically all of Aguiar's account info, despite at least some of it being protected under the SCA and requiring an actual warrant (which would require probable cause and a judge's review). Thus, in 2014, he sued MySpace for violating the Stored Communications Act, representing himself (pro se). At this point, MySpace was owned by Viant and it hired some lawyers to defend the case. All well and good. But, within weeks of Time Inc. buying Viant, something sketchy started happening. Without telling anyone, Time claims that it changed the name of its "MySpace LLC" subsidiary to "Legacy Vision LLC." Then, it "transferred" all of MySpace's assets to Viant. Four days later, it registered a brand new company... also called MySpace LLC. While this was happening, Time/MySpace basically told no one about this. The people operating MySpace had no idea and nothing changed. Even the lawyers who were representing MySpace in the case knew nothing about it and continued to represent the company for months -- only to be told about six months later that the company they were representing stopped existing months earlier. Prior to this MySpace had moved to dismiss the lawsuit, and was denied. So the case was supposed to move forward and MySpace was supposed to file an answer to the complaint. Except... it didn't. It didn't do anything at all. The magistrate judge, Patrick Walsh, demanded that the lawyer representing MySpace, Jane Rheinheimer, show up in court leading to a hearing last December with a fairly incredible transcript. Some excerpts: RHEINHEIMER: My name is Jane Rheinheimer, I’m former counsel, well, counsel for the former MySpace LLC. THE COURT: Okay. And who’s the representative from MySpace or Legacy? RHEINHEIMER: There is none, your honor. THE COURT: Why not? RHEINHEIMER: Neither MySpace nor Legacy Vision LLC exists as an operating entity anymore, your honor. THE COURT: Well that sounds like a lawyer talking, like as an operating an entity. Somebody signed a change in the name change in the spring. RHEINHEIMER: It’s my understanding, your honor. And- My understanding is that Legacy Vision LLC currently exists only in name with the secretary of state. There is no management; there is no employees; there is no asset; there is no anything; there is no operating entity there, your honor. Got that? There's a sneaky game being played here. Effectively, it appears that Time is claiming that the MySpace that was sued became Legacy Vision, but that Legacy Vision shut down and isn't operating at all. And that this operating MySpace is someone else entirely. The judge was... not impressed, leading to this crazy exchange between the judge and Aguiar (again, representing himself in court, where the judge is helping by explaining what's going on): THE COURT: Okay. All right, Mr. Aguiar, what do you want to do? AGUIAR: I’m kind of out of my area of expertise, your honor. My understanding was that the name changed in March. Weren’t the parties obligated to notify either me or the court? THE COURT: Of course they were. This is middle school stuff, right? AGUIAR: Right. THE COURT: This is how four year olds play hide-and-go seek. When you tell them to go hide and go seek, they cover their eyes, and they think you can’t see them, right? AGUIAR: Right. THE COURT: So MySpace changed its name to Legacy and they’re like, “There’s no more MySpace, Court.” Okay, here’s what I’m going to do. I’m adding Legacy. I’m going to give you a default... and you can do what you want with it. All right? In other words, the court was making it clear that it wasn't buying this game. Of course, that same transcript included the court refusing to let MySpace's former lawyer withdraw from the case, even as she was pointing out that she no longer has a client to pay her, because her "client" claims the company no longer exists: THE COURT: We’ll be entering the default and you make your motion for default judgment. Ms. Rheinheimer, I understand you’re in a tough spot, but your request to withdraw as counsel is denied, okay? Corporations cannot proceed in the federal court without a lawyer and there’s no good reason for you to be off this case. I think it’s just gamesmanship that’s going on with Legacy and MySpace and Mr. Lee, and I’m not letting you off. We’re going forward. He’s going to file a motion for default judgment and if you don’t want to fight that, don’t fight it. I’ll enter the default judgment, okay? And you can go back… RHEINHEIMER: Very well, your honor. There is no entity to pay me. I have no way of, I have no way of getting paid. There is noth… THE COURT: I want to tell you I’ve been in this- as a law clerk, I worked at DOJ at the US attorney’s office and I’ve been a The Court for 15 years. I want to tell you what I understand what’s always been the practice since 1984, when I externed for The Court Layton at the federal district court in Chicago. We’re not here, we’re not bill collectors. The fact that you can’t get paid, the rules don’t provide ‘you have to represent your client diligently unless you client is not paying you’. And our local rules don’t require, don’t allow you to get out from under a case because your client isn’t paying you. That’s something you have to- I’m not in the middle of those negotiations. You need to call up Mr. Lee and say, “Hey The Court Walter is leaving me on this case. I need to get paid.” And I think you should get paid, okay? I’m on your side there, but you’re not flipping the district court upside down because you’re not getting paid. All right? [And, I have no idea what the "The Court Walter" is -- I'm guessing it's a transcription error...]. Soon after this, a few things happened. First, the "new" MySpace got angry at being added to this case, and hired some new lawyers who filed to "intervene" in the case (even though they should already be in the case as it's the same MySpace) in order to try to fight the ruling. The filing is a work of art if legal bullshit were an artform. It insists that MySpace LLC is some totally unrelated company to the MySpace LLC in the lawsuit and acts positively shocked that anyone might think they are the same: Plaintiff’s Motion constitutes his latest attempt to obtain a default judgment against a company that: (1) never had any dealings with Plaintiff; (2) was never named as a party to this lawsuit; (3) did not exist until well after the conduct complained of in Plaintiff’s complaint occurred; and (4) is both factually and legally a separate entity from the “Myspace LLC” identified in Plaintiff’s complaint which Plaintiff admits now operates under the name Legacy Vision LLC (hereinafter “Judgment Debtor”). In a separate filing, MySpace attempts to argue that when Time bought Viant/MySpace it structured a complicated agreement in which it was buying the assets, not the liabilities -- and thus the complicated shell corporation and asset movement was really about fulfilling that agreement. Second, Aguiar got legal representation from lawyer Caleb Mason, who some of you may recognize as a partner of Ken "Popehat" White's. Mason then opposed the intervention and detailed much of the history I summarized above -- including pointing out that despite the name changes and new corporations, MySpace hasn't changed. The same lawyer who accepted service for the original lawsuit is still VP of legal affairs. The same lawyer representing the firm now represented the firm earlier in other cases. The same CEO of Viant/MySpace is still CEO of Viant/MySpace (now a Time Inc. subsidiary). Third, the original MySpace/Viant lawyer filed a declaration to the court more or less burning MySpace/Viant for telling her to stop doing anything on the case in September way after all the shell games happened, and then completely ignoring her every time she tried to contact them about things moving forward in the case (including the court refusing to let her withdraw): As is set forth in more detail in the Motion to Withdraw and Declaration of Jane A. Rheinheimer which is filed concurrently with the instant Declaration of Inability to File Opposition or Notice of Non- Opposition, all communication from Viant, Inc. and/or MYSPACE, LLC has ceased. I was advised by the previous corporate counsel for Viant, Inc. on September 16, 2016, that my firm’s services would no longer be required in connection with this matter. Additional written communications from my office on September 16, December 20, December 21, December 22, December 27, and December 29, 2016 and January 10, January 31, February 1, and February 3, 2017 have gone unanswered. I have sent corporate counsel copies of all pleadings, motions, and minute orders of this Court. All of these communications were sent via electronic mail, none of which have been returned. Given all that, a few days ago the judge, James Otero, ruled in the case... and to say that he's less than pleased with Time Inc./MySpace's games here would be an understatement. The ruling denies "MySpace LLC"'s request to intervene, because the judge notes it was already a party to the case and just chose to ignore it. All the maneuvering is written off as "gamesmanship and evasion." This is the kind of thing you generally don't want to hear a judge saying about your actions in a case: The Court agrees that this is not a run-of-the-mill motion for default judgment. Although it claims otherwise, MySpace has been actively opposing the motion and has concealed material information or otherwise muddied its representations to the Court. As for the claim that Time only bought the assets and not the liabilities, the court isn't buying it: Through a complicated series of transactions not previously disclosed to the Court, Proposed Intervenor argues that a Time, Inc. subsidiary transferred MySpace's assets–but none of its liabilities–to Proposed Intervenor, which currently operates under the same.... MySpace fails to provide any documentation to support these purported transactions. Also, as to the claims in MySpace's attempt to "intervene" that MySpace LLC didn't exist prior to all of this, the judge points out, wryly, some oddities if that's the case: A search of "MySpace LLC" on the California Secretary of State website reveals that it has the same address as the headquarters of Time, Inc., the parent company of Viant.... A search of "Legacy Vision LLC" on the website shows that Legacy Vision filed a Statement of Information on November 2, 2015–four months before Defendant MySpace allegedly changed its name to Legacy Vision–with the following information: the limited liability company name is listed as "MYSPACE LLC"; the manager of the entity is "Viant Technology Inc."; and the "AUTH PERSON" who completed the form was Timothy C. Vanderhook, Chief Executive Officer of MySpace LLC and Viant Technology LLC.... "Viant Technology Inc." is listed as the "Manager" of Legacy Vision, and has an address that matches that of Viant Technology LLC's headquarters in Irvine, California.... Moreover, Proposed Intervenor's counsel, LTL Attorneys LLP ("LTL"), was counsel of record for MySpace LLC in another action in the District of Delaware, captioned FO2GO LLC v. MySpace LLC, No. CV 15-00095 RGA (the "Delaware Action"), filed January 27, 2015.... In other words, assuming Proposed Intervenor did not exist until March 2016, it was somehow represented by the same firm over a year before. The court further calls out attempts by this MySpace to also pretend that Viant Technology LLC and Viant Technology Inc. are somehow different companies (they are not). It goes on and on along these lines, including pointing out that the company had a legal obligation to update the court and the plaintiff in the case to changes in ownership to the defendant -- and eventually orders MySpace to pay Aguiar $1,000 for violating his rights under the SCA, but also to pay nearly $75,000 in Aguiar's legal fees. What a mess. This kind of bullshit gamesmanship — having Time Inc. pretend that MySpace is dead just to avoid a court case — is the reason lawyers (especially corporate lawyers) have such a bad reputation among so many people. Thankfully it's not always so easy to get away with. Permalink | Comments | Email This Story

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Can people use a bankruptcy proceeding to create a "right to be forgotten"? We already know that Europe has implemented a form of a right to be forgotten that it's now looking to expand. However, in the US, the First Amendment has protected us against such things -- even if some politicians don't realize it. However, it appears that something has happened, hidden behind the sealed doors of Gawker's bankruptcy that has resulted in a story about ex-Sony Pictures boss Michael Lynton disappearing from the Gawker archive: A 2015 Gawker article that highlighted leaked emails written by Sony Pictures CEO Michael Lynton has been quietly removed from the internet, the latest in a line of stories from the former digital media company to be disappeared under apparent legal pressure from powerful figures. The story pieced together some of Lynton’s emails disclosed in the Sony Hack, the monstrous dump of company materials in late 2014 that was catastrophic for the studio and widely covered by the media. Lynton -- who once claimed that nothing good has come from the internet ever -- left Sony Pictures recently to focus on being chair of the board at Snap, the company that does Snapchat (a company that kinda relies on that no good, very bad internet Lynton hates). But apparently, on the side, he was somehow secretly convincing the Gawker "estate" to delete some articles he didn't like. This is different than when Univsion pulled down a bunch of Gawker stories after purchasing many of the company's assets out of bankruptcy. In that case, Univision claimed -- questionably -- that since it had purchased just the assets, but not liabilities, it had to take down any story that was subject to a lawsuit. This ignored a whole bunch of things, including the "first publication" rule, but whatever. In this case, the story was still hosted by what's left of Gawker. That is, when Gawker sold a bunch of assets to Univision, it did not sell the flagship "Gawker" site itself, but has instead maintained the archives. And that included some stories on Lynton that revealed things via the Sony Pictures email hack. And thus it appears that some sort of settlement was reached behind the scenes, with no public explanation or details... to flat out delete a story that apparently Lynton or someone close to Lynton didn't like. As reporter Matthew Zeitlin notes, we should all be concerned that a news story can disappear just "because of opaque bankruptcy proceedings." And, of course, because this is the internet, the Streisand Effect is already taking over, with people passing around links to the story that was disappeared. The story in question, like many stories, was probably embarrassing to some people, but there's been no evidence presented (publicly at least) that it was untrue. No one has shown any evidence that the Sony hack emails that it was based on were not accurate. Ironically, the suppressed story itself is, somewhat, about using money and connections to do things that normal people can't do, so perhaps it's only fitting that a behind the scenes, opaque process was then used to try to memory hole that story. But the story gets even worse. The Hollywood Reporter has also reported on this and notes that Lynton's lawyer, Andrew Celli, has warned its reporter, Eriq Gardner, not to even report on the disappearing story: Celli made contact to The Hollywood Reporter's general counsel to express concern after I made inquiries about the vanished article with Gawker. He later suggested that to even repeat the gist of the original Gawker story would be damaging. He threatened a lawsuit and, referring to the Sony hack, told me, “There is a sin at the bottom of this. It’s wrong. The source for information is the result of a crime.” This is, in the famed words of Popehat, what is known as censorious thuggery. Threatening people with litigation for reporting the news creates serious chilling effects. As Gardner notes in his article -- and as we've been reporting ourselves -- there seems to be a big business lately in so-called "reputation management" efforts to get embarrassing news stories disappeared from the internet. That should concern everyone. There's a reason that the US has a 1st Amendment and rejects things like a "Right to be Forgotten." Such things have a history of being abused by the rich and powerful to silence the press, just because the rich and powerful don't like those stories. Even if one could give Lynton the benefit of the doubt in getting Gawker's estate to take down the original story, the fact that his lawyer then threatened another publication with a lawsuit just for reporting on the situation makes this even more problematic. Lynton may not like the internet very much, but that doesn't mean he gets to censor it at will. Permalink | Comments | Email This Story

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Barack Obama promised the "most transparent administration ever," then spent years undermining his own promise. The Trump Administration has made no such promises (other than "if you don't like your Forever Wars, you can keep them...") but it's working overtime to make the faux transparency of the Obama years look like a high water mark in government accountability. Multiple federal agencies are no longer allowed to communicate directly with the public through social media accounts. Anything posted must be approved by administration staff. Open.gov is shut down and Trump has decided against following in his predecessor's footsteps, refusing to release White House visitors' logs. The release of the logs was Obama's idea. Nothing in the law compels release of this information. Trump's refusal aligns him with many former presidents, but not with the public's increasing transparency expectations. There was no exploitation of a loophole by Trump. Just a decision to restrict this administration to what the law says must be done, not what his constituency might expect. The same goes for the latest non-transparency news to come from Washington. Whatever minimal transparency gains might have been achieved in the last several years are being rolled back by the controlling party. The chairman of the House Committee on Financial Services sent a letter last month to the head of the Treasury Department instructing him to decline Freedom of Information requests relating to communications between the two offices, a letter that open records advocates called "deeply troubling." [...] The letter reads that since the Committee on Financial Services has legislative and oversight jurisdiction over the Treasury Department, all records of communication between the two offices and any documents produced remain in the committee's control — even when in the physical possession of the Treasury Department. "The Committee expects that the [Treasury Department] will decline to produce any such congressional records in response to a request under the Freedom of Information Act or any other provision of law agreement," the letter states. This blanket FOIA refusal instruction wasn't limited to the Treasury Department. The Associated Press obtained similar letters sent to a number of other agencies under the House Finance Committee's control, including the Consumer Finance Protection Board, FEMA, and the FDIC. As the letter points out… scratch that. It doesn't. It's only after reading the letter that you arrive at this unwritten conclusion. FOIA law exempts many congressional "records" from being liberated with FOIA requests. This includes communications between Congress and more FOIA-responsive agencies. One end -- the end with the most power -- can fully control the release of communications involving other agencies. This is all due to [ta-da!] laws Congress wrote and passed. You see how that works? So, we can be irritated (and rightly so) that this appears to be more opacity meant to separate us from our public servants and separate our public servants from accountability, but unfortunately, this is all very lawful -- a word deployed most frequently to defend actions which appear to be illegal. And here is the expected deflection: "Congresswoman Waters has known about these letters for more than a month and she never raised any objections or said anything about them until a reporter asked," committee spokesman Jeff Emerson said in a statement. "Here’s the truth: The position taken by the Committee is fully consistent with the legal position Republicans and Democrats have jointly taken for over three decades to protect Congressional records." The problem here is the law. And the law must be changed by legislators -- the very group least likely to order itself to be more transparent. As for the argument about opacity = better oversight? May I direct your attention to four years of leaked surveillance documents illustrating just how meaningless the term "oversight" is. Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
If any single aspect of common trademark disputes has become the thing that annoys me the most about them, it's how often the canard from trademark bullies that they have to be bullies by order of trademark law is trotted out for public consumption. You can almost set your watch to it: trademark bully does trademark bullying, public backlash ensues, trademark bully falsely explains that if it doesn't bully it loses its trademark rights, the public usually backs off. While it would be unreasonable to expect the general public to be up on the nuances of trademark law to the degree of someone who is paid to write about it, it's not unreasonable to smack down attempts by those who know better but who actively attempt to misinform that same general public. Which brings us to Bethesda. We recently discussed an indie studio called No Matter Studios, which had launched a successful Kickstarter campaign for its game Prey for the Gods, being bullied into changing that name to Praey for the Gods by Bethesda. Bethesda recently released a AAA title called simply Prey and is enforcing its laughably broad trademark rights, acquired by Bethesda from 3D Realms, on that name. Faced with a trademark dispute by a much larger company, No Matter Studios caved and made the requested changes which, as we pointed out in the original post, are so absurdly inconsequential as to beg the quesiton of how much real customer confusion was Bethesda actually concerned about in the first place. Right on time, the public backlash began, with much of it directed at Pete Hines, who is in charge of PR and marketing for Bethesda games. And, right on time again, Hines trotted out the shrugging excuse blaming the law rather than his company's actions. Many contacted Bethesda' Pete Hines on Twitter and voiced their concerns over the development, in response to which he said that ZeniMax had contacted No Matter Studios in 2015 to warn them of potential implications but ZeniMax's letter was ignored. He said that neither companies are responsible for how trademark laws work and that there have been countless times when ZeniMax's own studios had to change game titles to accommodate the same laws that No Matter Studios is now having to comply with. "We reached out in Nov 2015. We tried talking to them. Well before their Kickstarter. And they could have used a name that didn't infringe on our mark like we have 1,000 times when we came up with something another company marked. I'm not a trademark lawyer. Or any kind of lawyer. They disagree. Doesn't matter what I think about any of this." Hines was even more specific on Twitter in response to those who raised concern over this dispute. @TallulahSoie Cool has nothing to do with it. Its how trademark law works. You protect your mark or lose it. You don't really have a choice. — Pete Hines (@DCDeacon) May 3, 2017 As I am going to apparently be forced to keep repeating, this is the sort of thing that sounds good but simply isn't true. There is no blanket requirement that every use of a trademark by another party must be policed in every instance, forever and ever, amen. The requirement is for appropriate policing, with the likelihood of customer confusion governing what is and is not appropriate. Hines has gone back on Twitter and sent out reporting from media that buys into the forced bullying canard. Much of that reporting repeats the myth whole cloth, but its belied by some very simple facts. The chief fact to consider is that the changes requested by Bethesda and agreed to by No Matter Studios are so inconsequential. They mostly amount to a single character being added to the latter's game title, an "a." The game's logo, meanwhile, remains untouched and reads as Prey for the Gods. There is nothing in trademark law that requires action resulting in so little consequence. More importantly, were this to be a valid trademark concern on the part of Bethesda, the necessary results of any dispute would have to be more substantial. Remember that customer confusion drives all of this. If there is no potential for confusion in the marketplace, there is no need for the policing of the trademark. Given how the likely lack of confusion in this example is the result of one game's title consisting of a single word while the other's title uses that word as part of a longer and unique title, it's difficult to imagine a future in which Prey for the Gods keeping its name results in Bethesda being stripped of its trademark rights to Prey. So, please, don't buy the excuse. Hines himself notes on Twitter that he is not a lawyer. And I will say that he generally seems to be actively trying to engage these concerns, rather than ignore them. Given those two factors, I almost wonder if Hines himself is misinformed on the subject. Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
If, somehow, you've avoided all the news about the Fyre Festival from the past few weeks... well... you've been missing out. There's a ton of coverage basically everywhere, but what was promoted as an upscale music festival on a private island in the Bahamas, complete with private flights, luxury lodging, and fine dining... turned out to be... nothing. Despite having lots of rich and famous folks (especially Instagram stars) promoting the festival for months, it eventually appears that promoting and hyping was about all that was done for the festival, rather than actually organizing stuff. The festival was "canceled" but not before a bunch of people made their way to a not-so-private island in the Bahamas (Great Exumas) and discovered... that there was effectively nothing there. There was no music festival. The "lodging" was emergency relief structures. The "fine dining" was slices of bread and cheese with some lettuce. It's been quite a story. As you can imagine there have been lawsuits filed. Oh so many lawsuits. The sixth of these lawsuits, filed by Kenneth and Emily Reel, is getting a bunch of attention, in part because it includes the festival's PR agency, 42West, rather than just the "startup" behind the festival, Fyre Media (it was supposed to offer some sort of app), its founder Billy McFarland, and the musician Ja Rule, who was supposedly also a creator of the festival. But, even more interesting for those of us here at Techdirt is that he latest filing also claims that Fyre Festival has been threatening social media posters with cease-and-desist letters for posting negative things about the festival. That's what puts this squarely into Techdirt/Streisand Effect territory. You can read the full filing here or below. Admittedly, the filing is... kinda weak. There seem to be many claims that are little more than cut-and-pasted from media reports (without citation or credit). For example, the social media cease-and-desist threats are not shown with much detail (and don't appear to be included as an exhibit). Here's what the lawsuit says: As for those individuals who elected to speak negatively about the Defendants on social media, they are now being threatened with legal action via cease and desist letters. Specifically, if the social media comments were not taken down, the Defendants claim they could “incite violence, rioting, or civil unrest,” with the caveat that if “someone innocent does get hurt as a result … Fyre Festival will hold you accountable and responsible.” It is a little unclear from the filing if the lawyers have actually even seen this cease and desist letter. It would appear to be almost word for word identical to a TMZ post from a week ago, which doesn't present any actual evidence of the cease and desist letter -- and doesn't name the lawyers or even the recipient of the letter. The lawsuit doesn't cite the TMZ article, but also doesn't present any additional evidence of actual letters being sent (normally, you'd think it would be included as an exhibit if they had such a letter). Still, if such letters were actually sent, I imagine it won't be long until they're public. It's also odd, because this bit about the cease-and-desist letters comes in the same section as the discussion concerning the "application" that Fyre Festival has set up for people to ask for their money back. If you haven't heard, rather than just refunding the money, the Festival has asked people to "apply" for a possible "refund" providing little to no info on whether or not they're likely to get it. The lawsuit points out, reasonably, that while the festival promised refunds, asking people to apply and then providing no details or process is not quite the same thing as actually giving the refunds. And, most amusingly, the "application" has been mocked for encouraging people to accept passes to next year's Fyre Festival (which they insist will be a real thing) in lieu of a refund. Really: just fyi: Fyre Festival customers can forgo a refund in exchange for VIP passes to next year’s festival :) pic.twitter.com/nUWWlpKX9R — Joe Coscarelli (@joecoscarelli) May 1, 2017 If, somehow, you can't see that image, it shows one of the questions from the application (question 13 -- which raises a separate issue of just how many questions should you have to answer to get a freaking refund for a festival that didn't happen?!?) saying: Would you prefer to exchange your 2017 ticket(s) for additional 2018 VIP passes, as opposed to receiving a refund (Ex: If you purchased 3 passes for 2017 you would receive 6 total 2018 VIP passes). As you likely know, we've been through the ringer on social media and this has been a challenging week for us as we were unable to realize our dream on the first try. We are now one of the world's most famous festivals, for all the wrong reasons. We want to reverse that sentiment by producing something amazing. We are fully committed to this event next year, and to producing it in the most professional way, with experienced professionals. We have received support and commitments from several musicians to perform at next year's event. We would be so thankful to have your support as well. And then, the kicker: it provides two "options" for the recipient to choose from: Yes, let it ride. I'd love to support you all in creating something amazing! No, I'm not down for the adventure I have so many questions just about this question. Like, how they'll be producing an event when they're buried under at least 6 lawsuits and possibly more. Or how they can promise it will be professionally run by like, real professionals, when it appears that none of that happened this time around. Or how they can promise that "several musicians" have "committed" to performing when all the musicians who similarly "committed" to perform at this year's event... didn't. The main guy behind all of this, McFarland, has claimed publicly that "currently 81% of guests who have filled out the refund application have said they would like to attend Fyre Festival 2018", which I think people should view with the level of credibility of the guy who promised a music festival on a private island with luxury lodging and fine dining, and left a bunch of wealthy people on a non-private island in relief tents with bread and cheese and no electricity. Either way, it's a little unclear if Fyre Festival is actually sending cease-and-desist letters, or if it's maybe a part of this crazy long refund application that suggests that Fyre Festival "will hold you accountable and responsible" for negative postings. But... whatever it is... threatening people for saying bad things about your non-existent and massively overhyped festival seems... unwise. And, reading through the various lawsuits and news reporting over this, it certainly seems that the number of "unwise" moves by the organizers of this event began long ago and kept piling up at a fairly astounding rate. The lawsuit includes a bunch of claims that appear to have originated in a NY Mag article by Chloe Gordon, who wrote that she was hired by Fyre Festival to help out, and that it was clear things would be a disaster months ago. Oddly (again), the lawsuit doesn't note that many of the claims in the lawsuit came from that article, but they do... including this astounding claim about a meeting six weeks before the event was supposed to take place: Meanwhile the event planners were holed up indoors putting together a game plan and a budget. With so little having been prepared ahead of time, the official verdict was that it would take $50 million to pull off. Planners also warned that it would be not be up to the standard they had advertised. The best idea, they said, would be to roll everyone’s tickets over to 2018 and start planning for the next year immediately. They had a meeting with the Fyre execs to deliver the news. A guy from the marketing team said, “Let’s just do it and be legends, man.” Yeah, so sending out threatening cease-and-desist letters as mentioned in the lawsuit is certainly within the realm of possibility. Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
Update: After doing some hunting around, we were able to dig up additional reliable source material that indicates that Sokolovsky's conviction, troubling on its own, carries a suspended sentence that will keep him out of jail. We are updating the title of the post to reflect that, but will keep the original post in full below this update. While Solokovksy is obviously pleased to not be behind bars, it remains troubling that he has been convicted, forced to delete his videos, and spent months between house arrest and a detention center throughout this ordeal. The better part of a year ago we discussed the story of atheist activist Ruslan Sokolovsky. Sokolovsky became something of the sequel story to the now infamous Pussy Riot debacle. Russian police detained Sokolovsky and put him on house arrest for the crime of playing Pokemon Go in a Russian church and uploading a mildly snarky video about it to YouTube. The Russian Orthodox Church was fully on board with his being detained, stating in true Christ-like fashion that the real crime was his not respecting the Church and being an atheist blogger. Now, these stories out of Russia are taking a back seat to some of the grander geopolitical games currently being played, but it's worth your notice that the Russian government isn't dicking around when it comes to suppressing the speech of its own citizens. As evidence of that, we can point out that Sokolovsky has received three and a half years in prison, simply for producing a video the Russian Church didn't like. Sokolovsky posted a video of himself playing the augmented reality game late last year in a way that Russian authorities said showed “disrespect for society.” Prosecutors had asked for a sentence of 3.5 years in prison. The judge in the case, Yekaterina Shoponyak, granted the prosecutors their wish and gave the blogger a 3.5-year suspended sentence. “In accordance with the expert evaluation, the court found blogger Sokolovsky guilty of inciting hatred, violating religious feelings and illegal possession of special technical means - a pen with a video camera,” the judge said, according to the Russian news agency TASS. We'll get to the weird bit about the spy-pen in a moment, but we must first note that nobody reporting on this seems to understand how Sokolovsky's previous detainment on house arrest will be factored in to his multi-year sentence. Regardless, given the timeline of events, it seems clear that he will spend a fair amount of time behind Russian bars, simply for engaging in speech that wouldn't cause an American to blink twice. Put into the context of the overall discussion with some of the new American leadership's affinity for overseas dictatorial regimes, Western citizens need to start paying attention to the actions of those regimes. After all, it's not as though the American government hasn't recently engaged in its own play to bow at multiple altars in the name of decency and respect for faith. There's no equivalence to any of this...yet. But attention needs to be paid to the consequences of starting down that pious road. As for the spy-pen with the camera built in, it looks somewhat like the Russian police or government decided to build in a bit of fictitious intrigue to paint Sokolovsky as a sneaky, sneaky guy. Strangely, there’s some confusion about the charge that Sokolovsky possessed an illegal camera that was disguised as a pen. During the trial he reportedly said that not only was the pen not his, but that it wasn’t a camera at all, but instead just a light bulb. Today’s news of his sentencing didn’t clarify any of the questions surrounding this strange aspect of an already bizarre trial. Regardless, it seems a trivial thing, given that it changes nothing about the "crimes" he was actually charged with, which were essentially upsetting the state church. A three and a half year sentence will certainly produce a chilling effect on speech. These are not the kind of values we want to be consorting with. Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
The better part of a year ago we discussed the story of atheist activist Ruslan Sokolovsky. Sokolovsky became something of the sequel story to the now infamous Pussy Riot debacle. Russian police detained Sokolovsky and put him on house arrest for the crime of playing Pokemon Go in a Russian church and uploading a mildly snarky video about it to YouTube. The Russian Orthodox Church was fully on board with his being detained, stating in true Christ-like fashion that the real crime was his not respecting the Church and being an atheist blogger. Now, these stories out of Russia are taking a back seat to some of the grander geopolitical games currently being played, but it's worth your notice that the Russian government isn't dicking around when it comes to suppressing the speech of its own citizens. As evidence of that, we can point out that Sokolovsky has received three and a half years in prison, simply for producing a video the Russian Church didn't like. Sokolovsky posted a video of himself playing the augmented reality game late last year in a way that Russian authorities said showed “disrespect for society.” Prosecutors had asked for a sentence of 3.5 years in prison. The judge in the case, Yekaterina Shoponyak, granted the prosecutors their wish and gave the blogger a 3.5-year suspended sentence. “In accordance with the expert evaluation, the court found blogger Sokolovsky guilty of inciting hatred, violating religious feelings and illegal possession of special technical means - a pen with a video camera,” the judge said, according to the Russian news agency TASS. We'll get to the weird bit about the spy-pen in a moment, but we must first note that nobody reporting on this seems to understand how Sokolovsky's previous detainment on house arrest will be factored in to his multi-year sentence. Regardless, given the timeline of events, it seems clear that he will spend a fair amount of time behind Russian bars, simply for engaging in speech that wouldn't cause an American to blink twice. Put into the context of the overall discussion with some of the new American leadership's affinity for overseas dictatorial regimes, Western citizens need to start paying attention to the actions of those regimes. After all, it's not as though the American government hasn't recently engaged in its own play to bow at multiple altars in the name of decency and respect for faith. There's no equivalence to any of this...yet. But attention needs to be paid to the consequences of starting down that pious road. As for the spy-pen with the camera built in, it looks somewhat like the Russian police or government decided to build in a bit of fictitious intrigue to paint Sokolovsky as a sneaky, sneaky guy. Strangely, there’s some confusion about the charge that Sokolovsky possessed an illegal camera that was disguised as a pen. During the trial he reportedly said that not only was the pen not his, but that it wasn’t a camera at all, but instead just a light bulb. Today’s news of his sentencing didn’t clarify any of the questions surrounding this strange aspect of an already bizarre trial. Regardless, it seems a trivial thing, given that it changes nothing about the "crimes" he was actually charged with, which were essentially upsetting the state church. A three and a half year sentence will certainly produce a chilling effect on speech. These are not the kind of values we want to be consorting with. Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
The European anti-hate speech machinery rolls on, with each successive demand for social media platform responsiveness being greeted by Facebook's "Thank you, may I have another?" Mark Zuckerberg informed the German chancellor in 2015 that Facebook's often-blundering proxy censorship team was all about removing hate speech. In appreciation for Facebook's efforts, German officials spent the following year trying to find a way to hold the company criminally liable for third party postings determined to be hate speech under German law. Right next door, an Austrian court has just declared that Facebook is required to stamp out locally-defined hate speech... all over the globe. Facebook must remove postings deemed as hate speech, an Austrian court has ruled, in a legal victory for campaigners who want to force social media companies to combat online "trolling". The case - brought by Austria's Green party over insults to its leader - has international ramifications as the court ruled the postings must be deleted across the platform and not just in Austria, a point that had been left open in an initial ruling. Not only will Facebook need to delete original posts and reposts, but it's apparently supposed to track down anything that quotes the offending posts verbatim and delete those as well. Simply blocking them in Austria isn't sufficient, though. Whatever one aggrieved Austrian political party thinks is hate speech has the possibility to affect all Facebook users, regardless of their location or level of free speech protections. But that's not all Austria's Greens want: they want this ruling expanded to grant the Austrian government additional power over Facebook's moderation efforts. The Greens hope to get the ruling strengthened further at Austria's highest court. They want the court to demand Facebook remove similar - not only identical - postings, and to make it identify holders of fake accounts. These are dangerous powers to hand over to any government entity, but especially to recently-offended government officials with a half-dozen axes to grind. If this ruling holds up, Facebook -- and by extension, its users -- will be subservient to a foreign government that appears to like the sort of thing it sees in more authoritarian regimes where insults to government officials are met with harsh punishments. The worst thing about the ruling -- it contains many bad aspects -- is that it allows the Austrian government to determine what the rest of the world gets to see on Facebook. Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
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posted 14 days ago on techdirt
Earlier this year, we wrote a story about a fairly nutty patent troll, Blackbird Technologies, who had sued a bunch of companies over a patent it claimed covered letting users download content to consume offline (even though the actual patent was for a CD-ROM burning system). Blackbird has been suing a ton of companies over the last few years, and one of its recent targets was CDN provider Cloudflare (note: we're a customer of Cloudflare). The lawsuit is over US Patent 6,453,335 on "providing an internet third party data channel." The patent itself seems questionable. The application of the patent to Cloudflare's technology seems questionable -- but rather than dig into all of that, instead, let's focus on Cloudflare's response to all of this. First, it's pushing back on the lawsuit (of course), but it's going much, much further than that. As detailed in a new blog post, it's directly going after the lawyers behind Blackbird. You see, it's fairly typical for patent trolling operations to be pretty secretive about how they operate. They are often formed by former patent lawyers who then try to lay low while they know they're abusing the system. In this case, Cloudflare is first calling out the patent lawyers behind Blackbird: Blackbird was formed three years ago by two attorneys who left law firms where they had been engaged in patent defense work — Wendy Verlander (@bbirdtech_CEO; LinkedIn) at WilmerHale, and Chris Freeman (LinkedIn) at Kirkland & Ellis. Notably, both of those firms promote themselves as ready to protect companies from patent trolls. Kirkland trumpets that its IP practice group scored a victory against the “original patent troll,” while WilmerHale has a Patent Troll Initiative that aims to help businesses deal comprehensively with patent trolls. Having gained valuable experience and training by working for clients who paid their firms handsomely to fight suits brought by patent trolls, Verlander and Freeman were well aware of the harm done to their clients by patent trolls. Yet, Verlander and Freeman decided to cast their lot with the other side and formed a patent troll for themselves. But it goes way beyond them just flipping to the dark side. As Cloudflare details, it believes that Blackbird and the two lawyers who run it may have violated legal ethics rules. Many of them. First, Cloudflare makes the case that Blackbird Technologies is really just a law firm, rather than a tech company: As made clear in this blog post, Blackbird’s founders made the decision to leave law firms that were engaged in the defense of clients who were faced with patent lawsuits, and formed a new law firm focused on bringing law suits as a patent troll. The only services promoted on its website (http://www.blackbird-tech.com/) are legal services; the website notes that Blackbird represents a “new model” which provides the benefits of “top law firm experience” offering clients the ability to “litigate at reduced costs.” Of 12 total employees listed on the Blackbird website, 7 are attorneys. The remaining 5 are very junior employees described as “analysts” (3 are current undergraduate students and 2 received Bachelor's degrees last May). As far as we can determine, Blackbird produces no products or services which it makes available to the public. Rather, it offers litigation services and is in the business of filing lawsuits. And its output in that regard is prolific, as it has filed a total of 107 lawsuits since September 2014. As final confirmation that Blackbird is a law firm marketing legal services, its own website includes a disclaimer about “Attorney Advertising,” which states explicitly “[p]lease note that this website may contain attorney advertising.” Blackbird’s “new model” seems to be only that its operations set out to distort the traditional Attorney-Client relationship. Blackbird’s website makes a direct pitch of its legal services to recruit clients with potential claims and then, instead of taking them on as a client, purchases their claims and provides additional consideration that likely gives the client an ongoing interest in the resulting litigation. In doing so, Blackbird is flouting its ethical obligations meant to protect clients and distorting the judicial process by obfuscating and limiting potential counterclaims against the real party in interest. And thus, the company is subject to certain rules. Many of which Cloudflare argues it is not following. Blackbird may have acquired a proprietary interest in the subject matter of the litigation in violation of Rule 1.8(i) — Attorneys have a near monopoly of representing clients in the judicial system. Rule of Professional Conduct 1.8(i) explicitly prohibits an attorney from “acquir[ing] a proprietary interest in a cause of action or subject matter of litigation.” But that is exactly what Blackbird does. Blackbird’s website contains a pitch to recruit clients with potential legal claims under their patents, but then buys those claims and brings them on their own behalf. Wouldn’t that be a violation of Rule 1.8(i)? Doesn’t Blackbird’s attempt to pitch this as a “new model” of being a patent troll ignore the fact that the only non-law firm activity in which they are engaged (buying patents to bring lawsuits) is the exact thing prohibited by Rule 1.8(i)? They shouldn’t be able to use creative contractual or corporate structures to avoid its responsibility under the rules. Blackbird may be sharing fees or firm equity with non-lawyers in violation of Rule 5.4(a) or 5.4(d) — In order to preserve the integrity of the Attorney-Client relationship, Rule of Professional Conduct 5.4(a) prohibits attorneys from splitting legal fees in individual matters with non-lawyers, and Rule 5.4(d) prohibits providing an equity interest in a firm to non-lawyers. We think Blackbird may be violating both provisions. Although he no longer owns the patent and is not a party to the case, the assignment agreement’s terms (specifying payment of only $1) makes it possible that Mr. Kaufman has a contingency interest in the lawsuit. If that is the case, wouldn’t Blackbird be in violation of Rule 5.4(a)? Similarly, Blackbird has moved very quickly since its founding to file lawsuits against a great number of companies — 107 complaints since September 2014. So far, none of those cases have gone to trial. We intend to examine whether they have used financial support from non-lawyers to fund the very fast start to their operations in exchange for an impermissible equity interest, or have shared an equity interest with patent holders like Mr. Kaufmann, either of which would be in violation of Rule 5.4(d). Yeah. So, that might make things slightly more interesting for Blackbird. Rather than just having to fight off the claims of non-infringement or attempts to invalidate the patents, if Cloudflare's arguments here get anywhere, it could put the founders of Blackbird into serious trouble. In some ways, based on Cloudflare's description of how Blackbird operates, it reminds me of Righthaven. As you may recall, that was a copyright trolling operation that effectively "bought" the bare right to sue from newspapers. They pretended they bought the copyright (since you can't just buy a right to sue), but the transfer agreement left all the actual power with the newspapers, and courts eventually realized that all Righthaven really obtained was the right to sue. That resulted in the collapse of Righthaven. This isn't exactly analogous, but there are some clear similarities, in having a "company," rather than a law firm (but still run completely by lawyers), "purchase" patents or copyrights solely for the purpose of suing, while setting up arrangements to share the proceeds with the previous holder of those copyrights or patents. It's a pretty sleazy business no matter what -- and with Righthaven it proved to be its undoing. Blackbird may face a similar challenge. Cloudflare claims they're taking such an extreme step with the bar complaints to ward off other patent trolls from evolving into this type of model, that will only encourage more bogus lawsuits. And, that's not all the company is doing in going after Blackbird. The company is also crowdfunding up to $50,0000 for prior art discoveries not just on the patent being asserted against Cloudflare but on any patent held by Blackbird Technologies. The first bounty (up to $20,000) is for prior art which reads on the patent Blackbird is using to sue Cloudflare, the ‘335 patent. $10,000 is guaranteed and will be divided among prior art submissions that raise substantive questions on the ‘335 patent. The remaining $10,000 will be used to compensate prior art submissions that Cloudflare uses as evidence in an invalidation procedure at the USPTO or invalidation at trial. The latest date of prior art on the ‘335 patent would be July 20, 1998. The larger bounty (up to $30,000) will be spread among those submitting substantial prior art which reads on any of the 34 other outstanding Blackbird patents or their 3 in-flight patent applications and could lead to the invalidation of these dubious patents. Cloudflare will pay the second bounty to people who submit relevant and substantive prior art which, in Cloudflare’s opinion, reads on any other Blackbird patent. The money will be distributed based on the quality of the prior art, the perceived value of the patent, and the extent to which the evidence is used in a proceeding to invalidate one of the Blackbird patents. We will maintain a list of all the Blackbird patents at cloudflare.com/blackbirdpatents/. The list will provide the number of each patent, the relevant latest date of prior art, and will list germane already-identified prior art. We will update the list periodically as we get new information submitted. In other words, if Blackbird Technologies wants to go after Cloudflare in court, Cloudflare is going to hit back hard and make sure that Blackbird can't just run away. In many ways, this reminds me of Newegg's scorched earth approach to any patent trolls that sue them. Once a troll initiates a lawsuit, Newegg goes to war to make sure that other patent trolls don't even think of trying to go after Newegg again (and that strategy seems to mostly be working, as trolls now know to steer clear of the company). Kudos to Cloudflare for hitting back against patent trolling that serves no purpose whatsoever, other than to shake down innovative companies and stifle their services. But, really, the true travesty here is that the company needs to do this at all. Our patent (and copyright) systems seem almost perfectly designed for this kind of shakedown game, having nothing whatsoever to do witht the stated purpose of supporting actual innovators and creators. Instead, it's become a paper game abused by lawyers to enrich themselves at the expense of actual innovators and creators. Permalink | Comments | Email This Story

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Both Oracle and Cisco (not coincidentally major ISP vendors) have come out in full-throated support of the FCC's plan to kill net neutrality. FCC boss Ajit Pai has been making the rounds the last few weeks in Silicon Valley and elsewhere, trying to drum up support of his attack on broadband consumer protections. Pai met with Cisco, Oracle, Facebook and Apple in a number of recent meetings, but so far only Oracle and Cisco have been willing to enthusiastically and publicly throw their corporate fealty behind Pai's extremely-unpopular policies. In its letter, Oracle (which also supported the recent dismantling of consumer broadband privacy protections) is quick to trot out the stale and debunked canard that net neutrality stifled telecom investment: "From our perspective as a Silicon Valley technology company, what should have been a purely technological discussion of managing traffic on internet networks has inexplicably evolved into a highly political hyperbolic battle, substantially removed from technical, economic, and consumer reality. Further, the stifling open internet regulations and broadband classification that the FCC put in place in 2015 – for just one aspect of the internet ecosystem – threw out both the technological consensus and the certainty needed for jobs and investment." If you're playing along at home, you should, by now, realize this is bullshit. Once again, public SEC filings, earnings reports, and ISP executive statements contradict this claim. Killing net neutrality and broadband privacy protections is about one thing: letting giant incumbent ISPs make more money by abusing the lack of competition in the broadband last mile. And while that's good for ISP vendors like Oracle, that's not so great for the smaller companies that need a healthy, level playing field to do business. That's why over 800 startups have come out in opposition to the FCC plan. Like Oracle, Cisco was similarly eager to ignore the vast negative repercussions of the FCC's plan in a statement over at the company's website that also, again, insists net neutrality stifled investment: "The proposal will review what is needed to protect consumers and prevent anti-competitive behavior, while rolling back Title II reclassification, which has inhibited investment. The balanced approach Commissioner Pai unveiled will encourage new investments in broadband networks and speed the development of innovative services, including Internet of Things technologies, telemedicine, distance learning, emergency services, and mobile 5G." As we've noted, Pai's "balanced approach" involves first gutting all FCC authority over broadband, then shoveling the remaining, paltry authority back over to an already limited FTC authority that AT&T lawyers have demostrated they're able to tap dance around. Both Cisco and Oracle are well aware that the goal here isn't "balanced" regulations or "protecting consumers"; the goal is to turn a blind eye to the lack of competition in the broadband space (a disease for which neutrality violations are just one symptom) for the sole benefit of their clients at AT&T, Comcast, Verizon and Charter. Oracle and Cisco's vocal support of the killing of net neutrality comes as former net neutrality supporters like Netflix and Google have remained notably silent this go-round. Contrary to some media narratives, Google hasn't really been a vocal net neutrality supporter since 2010, and its interest in protecting an open internet has waned exponentially after launching an ISP (Google Fiber) and jumping into wireless. Netflix has similarly toned down its rhetoric to aid its lobbying under the Trump administration, while shifting its overall focus toward international expansion. That has left startups, consumers, smaller companies (like Roku and Mozilla) under-funded and under-gunned as they fight to keep the internet resembling something vaguely like a level playing field. Permalink | Comments | Email This Story

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Another day, another attack on a free press. The latest: a long-time reporter, Daniel Heyman, of the Public News Service in West Virginia was arrested for asking questions of Trump administration officials. Heyman yelled some questions to Health & Human Services Director Tom Price along with White House senior advisor Kellyanne Conway: Daniel Ralph Heyman, 54, with the Public News Service of West Virginia, was freed on $5,000 bond Tuesday night on a charge of "willful disruption of government processes," according to a criminal complaint. “The above defendant was aggressively breaching the secret service agents to the point where the agents were forced to remove him a couple of times from the area walking up the hallway in the main building of the Capitol,” the complaint states. It adds Heyman caused a disturbance by “yelling questions at Ms. Conway and Secretary Price.” Whether you like it or not, the press is kind of supposed to ask questions of elected officials. That's their job. And, sure, some will argue that the complaint says that he was "aggressively breaching the secret service agents," but others on the scene indicated nothing beyond ordinary questioning happened: Valerie Woody, who was there as outreach coordinator for the West Virginia Citizen Action Group, said Price's group was moving quickly down a hallway and Heyman was racing after them. "I saw nothing in his behavior, I heard nothing that indicated any kind of aggressive behavior or anything like that," she told Public News Service. "Just simple, you know, trying to get somebody's attention and ask them a question. It seems to me there was no violation of anyone's space, or physicality, other than the arrest itself." And, making matters worse, rather than admitting to over-aggressive enforcement, Price is cheering on the arrest: Secretary of Health and Human Services Tom Price on Wednesday commended police in West Virginia for “doing what they thought was appropriate” in arresting a journalist who shouted questions at him, but added that it wasn’t his call to say whether they took the proper measures. Price said the reporter confronted him while he was walking down a hallway. “That gentleman was not in a press conference,” he said. I'm curious if Price (or anyone else, for that matter) could point to where in the First Amendment there's a rule that says the press is only allowed to ask questions "at a press conference." That's not how it works. There's also this: Asked Wednesday by STAT whether he thought Heyman should have been arrested, Price said: “That’s not my decision to make.” Well, that's only partially true. Obviously, the local law enforcement gets to make that decision, but there's nothing stopping a competent public official from telling law enforcement to knock it off and to answer a few basic questions from a reporter. In an era where we're hearing more and more about both attacks on a free press, as well as the need for a stronger press, these kinds of shenanigans should not be allowed. In the past, when we've covered police arresting reporters, the courts have come out repeatedly in favor of the reporters (that whole First Amendment thing still matters). But that's of little use in the moment when police are dragging reporters off to jail for shouting questions outside a press conference. Permalink | Comments | Email This Story

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One of the most infuriating aspects of typical trademark disputes is how often the dire nature of the supposed infringement is ratcheted up in the threat rhetoric, while the eventual settlement reached seems laughably inconsequential. Bethesda, which has built a reputation for itself in terms of trademark bullying over its video game franchises, has been an example of this sort of thing in the past. When it decided that it owned the term "scrolls" generally after trademarking its Elder Scrolls franchise, it launched a dispute with developer Mojang over its game which was titled Scrolls. Much was made about the potential for customer confusion, except the eventual settlement allowed Mojang to keep the name for its game. One wonders why such a settlement would be agreed to by Bethesda were its original assertions remotely accurate. But where Mojang's settlement was at least cut and dry, such is not the case with indie studio No Matter Studios. No Matter held a successful Kickstarter campaign for its game Prey for the Gods, but ran into trouble when it tried to trademark the name for its title. In a post mostly about updates made to the game following its successful Kickstarter, No Matter Studios also announce that the project will now be known as Praey for the Gods after Bethesda "chose to oppose our [trademark]." "We could've fought this and we did think about it for quite a while", the statement says. "Something like a trademark opposition can be long and depending on how far someone wants to fight it can be very expensive. We didn't want to spend our precious Kickstarter funds, nor did we want to have to ask for additional funds to fight this in court." Instead of fighting, No Matter reached an agreement with Bethesda, and that agreement carries with it a hilariously meager name change for No Matter's game. Instead of calling it Prey for the Gods, it will instead be titled Praey for the Gods. A single lower-case "a", it seems, is all it took to satisfy Bethesda's hunger for trademark protection. I would submit to you, dear readers, that any potential customer confusion is unlikely to be alleviated by that single character. Particularly when No Matter is allowed to keep the original name in its logo for the game. "While we disagree with their opposition we were able to come to an agreement", No Matter say. That agreement means that they can continue to use a logo that says Prey For The Gods, with a stylised "e" that's actually the silhouette of a woman praying, but must use Praey for the Gods every time the game's name is written. And that might actually be confusing, but not in any way that points gamers to Bethesda. For the name of the game and its logo to be different is going to strike everyone as odd, all while the actual name change rings as wholly inconsequential. I'm not sure what kind of billable hours get generated for this sort of thing, but I give Bethesda's lawyers an A for effort when it comes to justifying the timecard. Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
Earlier this year we wrote about the nonsensical move by the Department of Homeland Security to ban laptops and tablets in the cabin on flights from a bunch of cities in the Middle East. The rumored reason was discoveries that terrorists had learned how to make bombs out of laptops. As we noted, this made almost no sense at all when you challenged any of the assumptions. But, never let logic and reason get in the way of a bit of inane security theater. Because now Homeland Security is about to announce that it's now banning laptops in the cabins on all flights from Europe (it's unclear if this will also apply on flights from the US to Europe, but it seems likely that European airports will reciprocate). While this does answer one of the questions raised by the original ban ("why won't potential terrorists just fly out of other countries?") it still raises a host of other questions. Again: why won't this apply to flights from other countries? Or domestic flights? Or all flights? But, really, that just raises an even larger issue, which is that if you want to protect 100% of all flights 100% of the time from ever having a problem in which people might die, the answer is ground all flights and never let anyone fly anywhere ever. Problem solved. Of course, the cost of such a solution would be horrendous -- which is why we don't do it. But that's the key issue: all of these things involve tradeoffs. All too frequently, it appears that government officials -- especially those on the national security side of things -- don't care at all about the tradeoffs. They just care about blocking any possible attack no matter how unlikely or how remote the chance of such an attack might be, and without any consideration of the costs and inconveniences to everyone else. And, yes, it's reasonable to point out that a single attack would be very, very costly as well. And there's clearly a reason to protect heavily against attacks. But there's still a balance. And there must be a better solution. If laptops are a risk factor, it's difficult to see how putting them in the cargo hold -- where there's no one to stop a fire -- is a better solution. Hell, most current airline rules require passengers to store all lithium ion batteries in carry-on luggage for exactly that reason. Putting them all in the hold would seem to increase the risk of accidental explosions and fires that might cause just as much, if not more, damage. And, of course, forcing people to give up their laptops has a secondary (but very serious) problem: for anyone traveling with sensitive information (lawyers, doctors, reporters, business execs, public officials, etc.) giving up your laptop is a massive security risk. In other words, the "cost" of this solution is ridiculously high for a very large number of people, for whom flying to or from Europe has just become a massive inconvenience and tremendously problematic to justify given the personal risk. And for what? Vague and unclear threats about "possible" exploding laptops? I'm sure that no one wants to be on a flight with a laptop that will explode (whether on purpose or not), but there has to be a better way to tackle the problem than doing a blanket ban on laptops in the cabin. And, yes, perhaps this sounds like saying nerd harder back to Homeland Security, but this is a case where there clearly are more reasonable tradeoffs that can and should be explored, well short of inconveniencing everyone and creating a very different (but very serious) kind of security threat by forcing people to give up their laptops. Permalink | Comments | Email This Story

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No-knock warrants may have served a purpose when they first became a thing. It's not as though law enforcement's fear of evidence disappearing or a violent reaction to warrant service is completely unjustified. But no-knock warrants are being deployed extremely frequently, becoming the preferred method of warrant service any time drug sales are involved. The warrant requests are supposed to be subjected to a higher standard of review, but it's devolved to the point where officers are requesting no-knock warrants simply because the residence they're searching has locking doors and working toilets. Now, cops and citizens are being killed or injured unnecessarily, simply because the SWAT team's armored personnel carrier seems like a waste of money if it's not deployed every six weeks or so. The higher standard is practically nonexistent, replaced by "upon information and belief" statements that work backwards from the desired form of warrant service. Over in Massachusetts, state police pledged to hold themselves to a higher no-knock warrant standard after a botched raid of the wrong residence led to a civil rights lawsuit. The department said it would bring its no-knock requests directly to a judge, rather than whatever court clerk happened to be on hand when the request was made. One year later, the state police appear to have made no changes at all, according to the Worcester Telegram's investigation. [A] T&G review of no-knock warrants in all 10 courts in Worcester County shows that of the 10 no-knock warrants issued to state police since 2016, only one was reviewed by a judge. Brendan T. Keenan, first assistant clerk-magistrate in Worcester’s Central District Court, said last week he was never asked to accommodate the change. “I read that in the paper,” he said of the pledge. “That’s the only place I heard it.” Clerk-magistrates in Fitchburg and Leominster, the only other two courts that have issued no-knock warrants to state police since 2016, said they also had never been asked to kick the warrants up to a judge. The higher standard the police promised ended up being no standard at all. And no standard at all is standard practice for many law enforcement agencies. The only defense offered for the department's reneging on its judicial review standard is… well, it's terrible. Apparently, going in-house is just as stringent as placing a no-knock warrant app in the hands of an impartial judge. “There is a heightened sense of review on these types of warrants now,” Col. McKeon said April 15, noting all warrants are forwarded to the district attorney’s office for review. There are very few prosecutors willing to turn down law enforcement requests. If anyone thinks a review by the DA's office is somehow more stringent than a clerk-magistrate's cursory glance, they probably work in a law enforcement agency's PR department. Clerks may have the word "magistrate" appended to their titles, but don't let that fool you into thinking they're only a small step down from actual judges. Nine of the 10 no-knock warrants examined by the T&G were signed by assistant clerk-magistrates; in six of the cases, that person had no law degree. A former judge with 16 years of experience says he knows why cops are bringing no-knock warrants to clerks: because judges will give warrant requests more scrutiny. "This is the day-to-day bread and water of judges,” said Mr. Borenstein, adding that it is not unusual for police to eschew judicial review. “There have been major studies done over the years, and one consistent thing about the studies is that police like to avoid judges,” he said. “They’d rather go to magistrates.” The police maintain the promise they broke still makes the entire process perfectly legal. As they see it -- in unofficial statements made in response to the investigation -- going to clerks gives officers more flexibility. The lack of judicial rigor is supposedly offset by the list of internal policy requirements cops must follow when obtaining no-knock warrants, which includes performing zero due diligence before asking a clerk for their autograph. There are no requirements that police conduct surveillance on a home or determine whether children live there prior to serving a no-knock warrant. And in two of the cases examined, the no-knock warrants were used to seize marijuana -- even as the state was holding a referendum to legalize personal possession and use. In other words, a drug that citizens felt could be safely legalized was treated as a threat so severe that warrant service could only be handled with a maximum amount of surprise and force. Because of its unwillingness to voluntarily subject itself to higher standards, the Massachusetts State Police is setting itself up to be the recipient of additional civil rights and wrongful death lawsuits. It could have taken the small extra step to ensure no-knock warrants were subjected to a bit more judicial scrutiny, but obviously preferred to do things the old way. The easier way. The way that got the department sued. That's the real "standard" of law enforcement: the bare minimum. As defenders of the practice point out in the Telegram piece, running no-knock warrants past assistant clerk-magistrates rather than judges is "legally sufficient." It's not better for cops or better for citizens. It's nothing more than ticking just enough boxes to avoid being punished by other arms of the state government. Permalink | Comments | Email This Story

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This hasn't worked yet, but that's not going to keep anyone from giving it another try. Excolo Law, representing victims of the San Bernardino attacks (and others in similar lawsuits), is suing Twitter, Facebook, and Google for [sigh] "knowingly and recklessly" supporting terrorism. The lawsuit, like others before it, claims the social media platforms aren't doing enough to prevent terrorists from using them for communication, not taking down reported posts fast enough, and otherwise making the world a more dangerous place simply by offering their services. Section 230 is the bar litigants have to clear before holding social media platforms accountable for the actions of their users. This hasn't happened yet, despite the suits being lobbed in California federal courts where some dubious 230 decisions have been handed down. But try they will. Repeatedly. The lawsuit claims that if these three internet giants hadn't existed, the "most feared terrorist group in the world" would not have experienced as much growth as it has. Maybe so, but if it wasn't these three companies, it would just be other communications platforms being dragged into court -- third parties several steps removed from the underlying tragedies. The lawsuit goes so far as to allege the perpetrators wouldn't have carried out the San Bernardino shooting if Facebook, Twitter, and YouTube hadn't existed. From the lawsuit [PDF]: Farook and Malik were radicalized by ISIS’ use of social media. This was the stated goal of ISIS. Farook and Mateen then carried out the deadly attack in San Bernardino… But for ISIS’ postings using Defendants’ social media platforms, Farook and Malik would not have engaged in their attack on the Inland Regional Center. OK, then. There's not anything new is this filing, the third by Excolo. I assume the firm will keep recruiting litigants and filing doomed lawsuits until its gathered enough dismissals to reach a cost/benefit tipping point. As always, the incidents underlying the suits are undeniably tragic. But that doesn't make suing third parties for other people's posts and communications any more correct than it does when nothing more than someone's allegedly-damaged reputation is on the line. Permalink | Comments | Email This Story

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As previously noted, the FCC has begun fielding comments on its plan to dismantle net neutrality protections. As of the writing of this post, nearly 556,000 users have left comments on the FCC's plan to roll back the rules, which will begin in earnest with a likely 2-1 partisan vote on May 18. The lion's share of that comment total were driven by John Oliver's recent rant on HBO. Many others are the result of what I affectionately call "outrage-o-matic" e-mail campaigns by either net neutrality activists or think tanks that let people comment without having to expend calories on original thought. Earlier in the week I was looking through the comments and noted how a large number of them all made the exact same (aggressively innacurate) claim: "The unprecedented regulatory power the Obama Administration imposed on the internet is smothering innovation, damaging the American economy and obstructing job creation. I urge the Federal Communications Commission to end the bureaucratic regulatory overreach of the internet known as Title II and restore the bipartisan light-touch regulatory consensus that enabled the internet to flourish for more than 20 years." FCC net neutrality proceeding being bombarded with form letter anti-net neutrality comments today. pic.twitter.com/HEto47VY1A — Karl Bode (@KarlBode) May 9, 2017 This in and of itself didn't seem like that big a deal, given the aforementioned campaigns often let commenters quickly file a form letter with the agency. But it was notable that if this was a form letter, the people who were filling it out magically organized themselves in perfect alphabetical order. And when ZDNet decided to do a deeper dive into these alphabetical duplicate comments, they found that they appear to be produced by a bot that's grabbing the names from somewhere (perhaps public voter registration records or a previous data breach). What's more, the reporter managed to get a hold of many of the folks that purportedly filed the comments, and found several that state they never filed the comments in question, and have no idea what net neutrality even is: "We reached out to two-dozen people by phone, and we left voicemails when nobody picked up. A couple of people late Tuesday called back and confirmed that they had not left any messages on the FCC's website. One of the returning callers specifically said they didn't know what net neutrality was. A third person reached in a Facebook message Tuesday also confirmed that they had not left any comments on any website." Numerous Reddit users also spotted the bot campaign, and noted the language used by the 58,000 (and counting) phony commenters was pulled from a 2010 press release by the Center for Individual Freedom, which does not appear to be driving the comments with a corresponding campaign. As of this writing, nobody has identified the driver of the bot, and the FCC has stated it doesn't comment on public proceeding input. ISPs do have a history of trying to artificially pad anti-net neutrality sentiment, since finding a critical mass of people who blindly support policies that only help companies like Comcast can be... difficult. As Vice News pointed out in 2014, a lobbying organization named the DCI Group (which receives funding from Verizon) paid individuals to flood websites and the FCC comment system with anti-net neutrality sentiement. Whether the work of a similar group, think tank, or other organization, you just know you have a quality argument when you need to pay people (or bot masters) to support your position. Permalink | Comments | Email This Story

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