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It seems like not a week can go by without some silly trademark dispute in the alcohol industries. This latest example comes to us from Ireland and provides a vivid demonstration for why trademarks ought to only be granted on unique and original names and not, say, on a mark based on common geography. Leo Mansfield of the Connemara region of Ireland opened a storefront business and called it "Conn O'Mara" after the titular fictional character he created as something of a mascot for the store. He registered the name "Conn O'Mara" as a trademark in 2009, as well as the logo for the Conn O'Mara character he created. All of this is perfectly original stuff, a fun and fictionalized nod to the Irish region where the storefront is located. In 2015, however, Mansfield decided to release a line of craft beer through the store as well and filed for a trademark on the name and logo to be used on his brews. Beam Suntory, headquartered in Chicago with two distilleries in Ireland, filed a notice of opposition to Mansfield's trademark, claiming that it has a registered mark for "Connemara" for the liquor marketplace. Cooley Distillery claimed that products under the ‘Conn O’Mara’ mark could be confused with its own Connemara Irish whiskey products. “I am appalled by the idea that Cooley Distillery would attempt to trademark ‘Connemara’,” Mansfield said in his counter statement seen by The Spirits Business. “Connemara is the world renowned geographical area of outstanding natural beauty in which I live and do business. If Cooley Distillery’s intent is to stifle local commercial activity and deny the use of the geographical name of the area to goods and services from the area, then I am outraged.” And with good reason. Mansfield's trademark is original, a fictional character and name that playfully serves as an homage to the region. Beam Suntory's mark, however, is the name of the region. Even putting aside my personal crusade to get the trademark offices of the world to recognize that the beer, wine, and liquor marketplaces are distinct enough to deserve their own trademarks, allowing a major industry to lock up a trademark for a name that is a geographic area is just plain silly. It's not original, it's not distinctive, and it treads on all of the other existing and potential businesses within that geographic area. It seems some of the locals in Connemara are on Mansfield's side. Mansfield told The Spirits Business he decided to “go public” with his point of view now because he was “fed up” with the lengthy process. He added that local bars have decided to get behind him “and will be contacting the reps”. Now, Beam Suntory is a huge company, but it still can't be worth the PR hit and the local patronage of these Connemara businesses to fight a storefront shop with a unique name and fictional character. Permalink | Comments | Email This Story

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This past weekend on John Oliver's Last Week Tonight, he took on the issue of "coal" and some politicians' obsession with coal jobs as the only true "American" jobs. The whole segment is interesting, but obviously not the kind of thing we'd normally write up. What we do frequently write about, however, is censorious threats, often from wealthy execs, designed to try to silence people from commenting on issues regarding those doing the threatening. And, it appears that's exactly what happened with coal exec Bob Murray, the CEO of Murray Energy, when he found out that John Oliver was doing a segment that included some bits about Murray. I recommend watching the whole thing, but the parts about Murray include a brief bit around 4:45 in the video and then a much longer section starting around 12:30 in the video, where Oliver notes: I'm going to need to be careful here, because when we contacted Murray Energy for this piece, the sent us a letter instructing us to "cease and desist from any effort to defame, harass, or otherwise injure Mr. Murray or Murray Energy" and telling us that "failure to do so will result in immediate litigation..." Oliver notes that this is the first cease & desist his show has received (which he agrees is incredible). Oliver also points out that Murray has, in fact, been known to follow through on these threats -- suing the NY Times, a contributor to the Huffington Post and more. Many of these lawsuits appear to be fairly classic SLAPP suits, in which the lawsuits against reporters and journalism outfits are designed to try to silence them. Thankfully, Oliver and HBO have good lawyers who clearly know Oliver's rights to talk about, criticize and satirize Murray -- and Oliver then spends the next ten or so minutes doing so (hilariously), even to the point of involving a talking squirrel (you need to watch it yourself to understand why it makes sense). He also notes this at the end: Bob Murray, I didn't really plan for so much of this piece to be about you, but you kinda forced my hand on that one. And I know you're probably going to sue me over this. But, you know what? I stand by everything I said. Kudos to Oliver for taking a principled stand here for free speech on an important issue. Of course, Oliver has HBO and its lawyers to back him up, but it sure would be a hell of a lot easier if we had strong anti-SLAPP laws to protect him. So, once again, this is why we need a strong federal anti-SLAPP law, not to mention better state-level anti-SLAPP laws. Bob Murray appears to be based in Ohio, which (lucky him) appears to have no anti-SLAPP law, while I believe John Oliver is in NY, which has an incredibly weak anti-SLAPP law. Perhaps, sometime soon, John Oliver can take on the need for stronger anti-SLAPP laws. Permalink | Comments | Email This Story

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This week's episode is all about copyright and culture, with a pair of the best guests you could ask for on the subject. Almost ten years ago, law professors Keith Aoki, James Boyle and Jennifer Jenkins released a comic book about copyright called Bound By Law, and now they are back with a sequel: Theft: A History of Music. This week, James and Jennifer join us to discuss the new comic and the history of copyright and music (with lots of fair use music snippets to demonstrate the legacy of 'theft')! You should also be sure to check out the comic itself! You can download a digital copy for free of course, but for those who want to get their hands on the beautiful paperback edition, we've got a limited time offer for Techdirt fans: you can get it for only $8.99 at Createspace (that's 40% off!) when you use the discount code 2FESBPRQ within the next two weeks. It's also available on Amazon with a free Kindle edition included when you buy. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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Going all the way back to 2002 (and many times after that), we've talked about courts struggling with whether or not it's okay to ban people from the internet after they've committed a crime. The question comes up in many different cases, but most prevalently in cases involving child predators. While courts have struggled with this issue for so long, it's only now that the Supreme Court has weighed in and said you cannot ban someone from the internet, even if they're convicted of horrific crimes -- in this case, sex crimes against a minor. The case is Packingham v. North Carolina, and the Supreme Court had to determine if it violated the First Amendment's free speech clause and the Fourteenth Amendment's due process clause, to make it a felony for convicted sex offenders to visit social media sites like Facebook and Twitter, as was the case under a North Carolina law. In this case, Lester Packingham is a convicted sex offender for an event that happened back in 2002. In 2010, he went on Facebook to brag about getting a traffic ticket dismissed -- using his middle name as his last name. A local police officer saw the post and connected the dots to figure out that the poster "J.R. Gerard" was actually Lester Gerard Packingham and charged him with violating that NC law on using social media as a sex offender. Various state courts went back and forth with the NC Supreme Court eventually saying that the law was "constitutional in all respects." The Supreme Court of the United States, however, did not agree. The ruling is interesting on a number of levels. It cites, pretty directly, EFF's amicus brief, noting just how important and central to our lives sites like Facebook have become. While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. Brief for Electronic Frontier Foundation et al. as Amici Curiae 5–6. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users. Id., at 6. This is about three times the population of North America. Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” Reno, supra, at 870. On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose. See Brief for Electronic Frontier Foundation 15–16. In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.” The opinion, written by Justice Kennedy, notes that the internet is a vast and changing place, and notes that the court does need to proceed with caution -- but that caution must be in the direction of protecting Constitutional rights: This case is one of the first this Court has taken to address the relationship between the First Amendmentand the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the FirstAmendment provides scant protection for access to vast networks in that medium. And then, the opinion dives right in and says that the law is obviously a violation of the First Amendment for not being "narrowly tailored." Again, while there are a few limited exceptions to the First Amendment, they are very narrowly tailored and the Supreme Court has shown little to no interest in expanding them: Even making the assumption that the statute is content neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive intermediate scrutiny, a law must be “narrowly tailored to serve a significant governmental interest.” ... In other words, the law must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” ... And this law is not, at all, narrowly tailored. Once again, SCOTUS leans heavily on EFF's amicus brief to point out how overly broad this NC law is: It is necessary to make two assumptions to resolve this case. First, given the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com. See post, at 6–9; see also Brief for Electronic Frontier Foundation 24–27; Brief for Cato Institute et al. as Amici Curiae 10–12, and n. 6. The Court need not decide the precise scope of the statute. It is enough to assume that the law applies (as the State concedes it does) to social networking sites “as commonly understood”—that is, websites like Facebook, LinkedIn, and Twitter.... From there, it notes that clearly a state could bar more specific and narrowly tailored actions that are not broadly targeting speech: Second, this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission.... Though the issue is not before the Court, it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor. But this law obviously goes way beyond that, and the Court is troubled by this, calling it "unprecedented in the scope of First Amendment speech it burdens." Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind.... By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with anInternet connection to “become a town crier with a voice that resonates farther than it could from any soapbox."... In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives. The above part is the key part of this ruling, and I fully expect it to be cited repeatedly in future cases. It's the Supreme Court declaring, quite clearly, that the ability to use the internet is vital to being a part of society today, and thus there's a fundamental First Amendment right to be able to do so. Three Justices -- Alito, Roberts and Thomas -- concur with the overall opinion, but do take some issue with the expansive nature of Kennedy's opinion, suggesting it goes too far. In the concurrence, written by Alito, they note: I cannot join the opinion of the Court, however, because of its undisciplined dicta. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.... And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers. I am troubled by the implications of the Court’s unnecessary rhetoric. I don't see how they can read the majority opinion to say that. Kennedy's opinion makes it quite clear that such things can be restricted where it's clear that these actions are narrowly targeted at situations that "often presages a sexual crime." Either way, I get the feeling that, despite these concerns, this case will be cited in useful ways to protect free speech in the future... Permalink | Comments | Email This Story

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You've probably heard about the horrific tragedy in the UK of the Grenfell Tower fire that killed many people. There are all sorts of awful stories related to the tragedy, but there is one that hits close to home: the use of SLAPP threats to silence residents who warned about fire dangers in the building. You see, a group of residents in the building who were concerned about safety issues, calling themselves the Grenfell Action Group have been blogging about problems in the building for years -- including this horrifyingly prescient blog post from last November, which included the following paragraphs: It is our conviction that a serious fire in a tower block or similar high density residential property is the most likely reason that those who wield power at the KCTMO will be found out and brought to justice! The Grenfell Action Group believe that the KCTMO narrowly averted a major fire disaster at Grenfell Tower in 2013 when residents experienced a period of terrifying power surges that were subsequently found to have been caused by faulty wiring. We believe that our attempts to highlight the seriousness of this event were covered up by the KCTMO with the help of the RBKC Scrutiny Committee who refused to investigate the legitimate concerns of tenants and leaseholders. We have blogged many times on the subject of fire safety at Grenfell Tower and we believe that these investigations will become part of damning evidence of the poor safety record of the KCTMO should a fire affect any other of their properties and cause the loss of life that we are predicting Yikes. There are many more similar blog posts as well. And apparently, the building management -- the Kensington and Chelsea Tenant Management Organisation (KCTMO) -- decided years ago that the best way to deal with the blogging tenants... was to threaten them with a lawsuit if they kept blogging. In a letter posted to Twitter by a bunch of people (not sure who posted it first), back in 2013, the KCTMO threatened the bloggers with defamation lawsuits if they kept it up: The image is a little blurry, but here's a transcript of the key part: I would also ask that you remove from the blog unfounded accusations against named individuals which are your personal opinion and are likley to be considered defamatory and also likely to be perceived as harassment by the individuals concerned. I should be grateful if you could contact Vinal Sarna immediately to confirm that you have removed the offending blog and that you will refrain from making unsubstantiated accusation of criminal behaviour and personal comments about an individual's performance or actions while working on or for the Estate Management Board. And, of course, UK libel laws are much stricter than in the US, so it's quite reasonable that these kinds of letters would have significant chilling effects on the authors of the blog, who might fear that calling more attention to problems with building management and threats to safety might, in fact, be met with a lawsuit. At least one publication is noting that at least two women who died in the fire were among those threatened with legal action for calling for better fire protection in the building, though the exact details of those threats are not entirely clear. Either way, this hearkens back to the early days of anti-SLAPP laws in the US, where many were designed to deal with building developers threatening activists or suing them to silence them entirely. Having strong free speech protections in the UK might have helped to make tenants in the building more willing to speak out and have their voices heard, rather than threatened into silence for upsetting the management of the building to the point of having a lawyer send out threat letters. The fight to protect free speech is about more than just people wanting to say stuff that might upset people -- it's about not being afraid to speak out when it's necessary. Permalink | Comments | Email This Story

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If there is any one office tool you should master, it's Excel, as it is integral to everything from data crunching to organizing contact information. TheeLearnExcel Microsoft Excel School will turn you into an Excel master. This $39 dollar bundle of 8 courses offers over 200 lessons so you'll be the master of pivot tables, Vlookup, charts and more in no time. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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If you wanted even more ways for government officials to bypass accountability, you've got it. Courtesy of the US Supreme Court, the immunity for federal officials has just been expanded. On a day when the court handed down two significant First Amendment victories, the court has dialed back an avenue of redress for people whose rights have been violated by federal employees. This case has its origins in the 2001 Twin Towers attack. In the wake of the attack, the government engaged in some questionable behavior (not unlike some of its World War II actions), rounding up undocumented Arab immigrants and detaining them under harsh conditions. When they were finally released, they sued the US government for violating their rights. Unfortunately, options for directly suing federal officers are severely limited. Up until the Supreme Court's 1971 Bivens decision, plaintiffs had almost no way to seek redress for rights violated by federal employees. Bivens produced a new option, but its limited scope still made it very difficult for plaintiffs to secure a ruling in their favor. It's especially useless in cases like the one before the Supreme Court -- a case where the plaintiffs have no other way to bring a suit against the government other than going the Bivens route, thanks to their status as undocumented aliens at the time the rights violations allegedly occurred. This new decision limits Bivens even further by adding national security concerns to the mix. In cases like these -- prompted by federal government reactions to a domestic terrorist attack -- the Supreme Court comes down on the side of the US government. But it's not just national security playing a limiting factor in seeking justice for violated rights. It's pretty much any case where the government hasn't seen this particular sort of violation before. Cornell law prof Michael Dorf points out how severely restricting this ruling is for plaintiffs who have a single recourse option available to them: The key move in the majority opinion is one of characterization. The Court says that it is not enough for a Bivens action to be available that there are precedents in the same general area holding that no "special factors" warrant denial of a Bivens action; the "special factors" must be evaluated by reference to a highly particularized description of the case at hand. How particularlized? The Court says: Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider. The shorthand version is the same excuse used in tons of normal, non-Bivens civil rights cases: if the court hasn't previously ruled on this specific set of circumstances before (and judged them to be a violation of rights), qualified immunity for government employees will be upheld. The problem is violations must be "clearly established" by a court decision to bypass immunity -- which is an extreme rarity in a system that heavily relies on precedent, frequently punts on tough legal questions, and often tells plaintiffs their redress is tied to legislation Congress has yet to write, much less pass. Mix in national security concerns, "special considerations," and expansive immunity protections for government employees and this decision demands future Bivens petitioners do the impossible: That means that it is now possible for a federal officer to violate clearly established rights--i.e., to commit rights violations that are established as clear in virtue of being very similar to rights violations that were adjudicated in prior cases--but still not be subject to a Bivens action because the case is nonetheless too different from prior Bivens cases to overcome the "special factors" limitation. To bring a successful Bivens action a civil rights plaintiff must now pass through the eye of a tiny needle inside the eye of another tiny needle. The decision [PDF] also suggests plaintiffs just wait around with their rights violated until Congress does something about it: The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. What remains after this decision is almost nothing for plaintiffs -- like the Muslims and Arabs rounded up in a legally-unsound reaction to a terrorist attack -- and another expansion of immunity protections for federal officers and officials. As Steve Vladeck pointed out on Twitter, future Bivens cases will be limited to a small subset of prior Bivens decisions. The chances of previous decisions being perfectly applicable to the facts at hand in future cases hovers right around 0%. In the context of this case, it means the government can again engage in such a roundup of Muslims and Arabs without worrying about future lawsuits. None of the courts involved declared this roundup to be a violation of rights, so as far as the judiciary is concerned, similar actions won't violate any established precedent. Plaintiffs bringing these complaints -- plaintiffs who often have no other options under the law -- will have to be willing to spend lots of time and money pursuing miracles. The Supreme Court has ruled that if it walks like a duck, acts like a duck, but quacks a bit more like a Canvasback than a Mallard, federal immunity will be upheld.. Permalink | Comments | Email This Story

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If there's any real creativity in the broadband sector, it often has little to do with the actual products and services offered. More often than not, the real creativity in the sector involves finding ingenious new ways to bilk consumers out of additional money, or charge them significantly more money for the exact-same service. Whether talking about hidden below the line fees or arbitrary and unnecessary usage caps, the lack of real broadband competition has resulted in a gold rush -- at least when it comes to creatively-misleading charges. CenturyLink (the end product of a series of telecom sector mergers involving Embarq, Qwest and CenturyTel) has already pursued usage caps and overage fees, as well as an incredibly misleading, unnecessary and nonsensical "Internet cost recovery fee" it tacks on to the bottom of every broadband bill. But the company is now being accused of taking things notably further. One former employee has filed suit in Arizona, accusing the company of signing up subscribers for a rotating crop of services they didn't want and didn't order -- simply to help company reps meet sales targets. Former customer service agent and case plaintiff Heidi Heiser says she and other support reps began noticing that consumers were being signed up for lines or services they didn't order, and that company higher ups didn't seem to much care: "When a customer complained about an unauthorized charge, customer service and sales agents like Heiser were directed “to inform the complaining customer that CenturyLink’s system indicated the customer had approved the service,” according to the complaint, and as a result “it was really the customer’s word against CenturyLink." In telecom these kinds of high-pressure sales tactics aren't particularly uncommon. T-Mobile was accused of turning a blind eye to a similar tactic last December. AT&T and Verizon have been similarly charged with turning a blind eye to third party "cramming" -- or signing consumers up for often fraudulent services consumers didn't order -- because carriers have consistently received a cut of the revenues. AT&T, in fact, was busted actively making its bills harder to understand to help obfuscate the scams and keep the money from them rolling in. In this case, the CenturyLink whistleblower says she was fired shortly after drawing attention to the tactic on an internal company message board. Rather unsurprisingly, CenturyLink -- which is currently trying to close a merger with Level 3 Communications -- was quick to insist they'd done nothing wrong: "CenturyLink "holds itself and its employees to the highest ethical standards" and has "an Integrity Line in place, 24 hours a day, seven days a week," Mark Molzen, a spokesman, said in a statement. "This employee did not make a report to the Integrity Line and our leadership team was not aware of this matter until the lawsuit was filed. We take these allegations seriously and are diligently investigating this matter." But Heiser, who says she began getting increasingly uncomfortable as the Well Fargo scandal unfolded late last year, notes that she did bring the tactic to CenturyLink executives' attention -- but was allegedly told to "stay positive and not to mention her concerns again." Permalink | Comments | Email This Story

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It appears the NSA hasn't learned much since Ed Snowden left with several thousands of its super-secret documents. Agency officials were quick to claim the leaks would cause untold amounts of damage, but behind the scenes, not much was being done to make sure it didn't happen again. A Defense Department Inspector General's report obtained via FOIA lawsuit by the New York Times shows the NSA fell short of several security goals in the post-Snowden cleanup. For an agency that was so concerned about being irreparably breached, the NSA still seems primed for more leakage. Charlie Savage reports: The N.S.A. failed to consistently lock racks of servers storing highly classified data and to secure data center machine rooms, according to the report, an investigation by the Defense Department’s inspector general completed in 2016. The report was classified at the time and made public in redacted form this week in response to a Freedom of Information Act lawsuit by The New York Times. The agency also failed to meaningfully reduce the number of officials and contractors who were empowered to download and transfer data classified as top secret, as well as the number of “privileged” users, who have greater power to access the N.S.A.’s most sensitive computer systems. And it did not fully implement software to monitor what those users were doing. Let's not forget the NSA wants to be engaged in ensuring the cybersecurity of the nation. It's repeatedly asked for more power and a better seat in the CyberWar room. But it doesn't even take its OWN security seriously. The NSA told its oversight it was engaging in 40 "Secure the Net" initiatives, directly after the first Snowden leak. Two years later, it told Congress it had completed 34 of 40 STN initiatives. The term "completion" apparently has multiple definitions, depending on who's using the word. The IG sampled only seven of the initiatives and found four were mostly done and three were nowhere near completed. Extrapolating from the sampling, it's safe to assume the NSA's internal security efforts are only slightly more than half-baked. The three the NSA failed to implement are of crucial importance, especially if it's looking to keep its in-house documents safe at home. From the report [PDF]: NSA officials did not effectively implement three PRIVAC [Privileged Access]-related STN initiatives: - fully implement technology to oversee privileged user activities; - effectively reduce the number of privileged users; and - effectively reduce the number of authorized DTAs [Data Transfer Agents]. First off, the NSA -- prior to the Snowden leaks -- had no idea how many users had privileged access. Post-Snowden, things hardly improved. Considering the tech capabilities of the agency, it's incredibly amusing to see how the NSA "tracked" privileged users. NSA officials stated they used a manually kept spreadsheet, which they no longer had, to identify the initial number of privileged users. Pretty much useless, considering this number the NSA couldn't verify (thanks to its missing spreadsheet) was supposed to be used to establish a baseline for the planned reduction in privileged users. Despite missing this key data, the NSA moved ahead, "arbitrarily revoking access" and asking users to reapply for privileged status. It then reported a reduction by citing the number of users it denied restoration of access privileges. It did not factor in any new users it granted privileged access to or tally up the number of accounts it never bothered to revoke. As the fully-redacted chart presumably points out (according to the text above it), the NSA had a "continued and consistent increase in the number of privileged users once the [redacted] enrollment process began." The NSA also claimed it had reduced the number of DTAs. And again, the NSA had no receipts. Although repeatedly requested, NSA officials could not provide supporting documentation for the total number of DTAs before and after the purge or the actual number of users purged. The NSA's objectively-terrible internal controls (again) ensured no number could be verified. NSA did not know how many DTAs it had because the manually kept list was corrupted during the months leading up to the security breach. The NSA handled these missing numbers the same way it had privileged users: it made up a new baseline, arbitrarily decided it could show a downtrend in DTAs, and delivered this as "proof" of another completed security initiative. The report points out repeatedly the NSA's failure to provide documentation backing its STN claims -- either from before the initiatives took force or after they supposedly hag been completed. The IG's comments note the NSA's response to the report ignored its detailed description of multiple failures in order to spin this as a "win" for the agency. Although the Director, Technology Directorate NSA/CSS Chief Information Officer, agreed, he did not address all the specifics of the recommendation. Therefore, we request that the director provide additional comments on the final report that identify specific actions NSA will take. Here's how the NSA portrayed the report's findings: While the Media Leak events that led to Secure the Net (STN) were both unforeseen and serious, we consider the extensive progress we made in a short time to be a "good news" story. Sure, if you consider a half-done job securing NSA assets to be "good news," rather than just an ongoing series of security holes left halfway unplugged while agency officials testify before Congressional oversight in front of a "MISSION ACCOMPLISHED" banner backdrop. Permalink | Comments | Email This Story

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Sometimes I think purgatory must be filing a lawsuit over a wrongful DMCA takedown notice. I'm pretty sure that's how Stephanie Lenz feels. After all, she's been fighting against Universal Music issuing a bogus DMCA takedown against her dancing baby, and I'm pretty sure that "baby" will be graduating high school before too long. Last we'd checked in, the Supreme Court was debating hearing the appeal in the case, and had asked the White House to weigh in. The White House responded last month with a truly bizarre argument, agreeing that the 9th Circuit's ruling contained a "significant legal error" but said that this case was "not a suitable vehicle for correcting that mistake." Whether it was for that reason or for no reason at all, the Supreme Court has now decided not to hear the appeal, meaning that the case is back (once again) in District Court, where it may actually go to trial to determine if Universal Music knew that the video was fair use when it issued the initial takedown. As we've discussed time and time again, this particular case is an important one, if Section 512(f) of the DMCA -- the part that says you cannot file bogus DMCA takedowns -- is to have any teeth. The problem, right now is that there are piles upon piles of abusive DMCA takedowns, targeting all sorts of content that is perfectly legitimate and non-infringing. Yet, because there is basically no punishment for issuing such takedowns, they continue. Unfortunately, this particular case keeps coming out with "mixed bag" rulings that probably won't help very much in the long term. While we may have hoped that the Supreme Court would clear things up and make sure 512(f) actually does its job, it appears that's unlikely to happen any time soon. Permalink | Comments | Email This Story

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It's not like we need any more evidence showing asset forfeiture has almost nothing to do with enforcing laws or breaking up criminal organizations. But law enforcement agencies just keep generating damning data. The Charleston Post and Courier's article on the subject runs under an innocuous title that seems to put the blame on the federal government for the asset forfeiture sins of local police, but the article tells a completely different story. The officers and officials quoted in the story make noises about taking down criminals, but the greedy devil is in the details. Every year in Spartanburg County, the Sheriff's Office organizes a week-long crackdown on Interstates 26 and 85 involving multiple local and federal agencies. They call it "Rolling Thunder." Cool name. About as cool as the "interdiction teams" Rolling Thunder contains, which makes it sound as though officers are seriously engaged in disrupting drug trafficking. And the numbers here show the week-long effort did indeed result in a whole lot of searches. During the March operation, deputies and their colleagues pulled over 1,110 motorists — the majority of whom were black or Hispanic — mostly for infractions such as making improper lane changes or following too closely. Police searched 158 vehicles, including large tour buses. Drug-detecting dogs sniffed around 105 vehicles, and the tour bus luggage… But did it result in a whole lot of drug traffickers being shown the (jail) door? Of course not. Just eight felony arrests were made, but police found and seized 233 pounds of marijuana, nearly 8 kilos of cocaine, 164 ounces of heroin, more than 4,800 prescription drug items, 65 grams of methamphetamine, $139,320 in cash and counterfeit consumer products. Why even make the slightest effort to prosecute when civil asset forfeiture allows you to make nearly no effort at all? Here's Rolling Thunder "participant" trophy-winner Sheriff Chuck Wright making claims about the wondrous works of interdiction teams. “You’re not going to do this here and get a free pass,” Wright said. “People in Spartanburg County elected me to enforce all laws, and that’s what I’m going to do.” “The proof is in the pudding. Look around. Do you want this in your street?” Wright said. But a free pass is exactly what most people got. Eight felony arrests arising from 158 vehicle searches which turned up a whole bunch of drugs and cash. Not sure how a search-and-release program isn't a "free pass" or does anything to prevent more drugs from ending up on the street. Drug producers can always produce more drugs. And as long as their mules aren't sitting in jail, they should have little trouble moving product from point A to B. The most damning fact is this: South Carolina law enforcement agencies simply stopped enforcing laws when told they weren't allowed to enrich themselves through asset forfeiture. When the federal government briefly shut down its equitable sharing program -- which allowed agencies to route around state forfeiture restrictions to stake a larger claim of seized property -- local agencies shut down their drug interdiction efforts. "The tip of the spear has just been blunted — it’s got no point now," Charleston County Sheriff Al Cannon said at the time. Hampton County suspended drug interdiction patrols until the payment program resumed. This is the ugly reality of asset forfeiture. It's not about laws. Or drugs. Or taking down drug cartels. It's about taking stuff from people with a minimum of legal fuss. When the going gets tough, the tough shut down. What began as a well-intentioned notion has become a mockery of property rights and due process. Permalink | Comments | Email This Story

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Remember Rightscorp? This is the wannabe "friendlier" copyright troll, that sends smaller bills than the traditional copyright trolls. Over the years, it's actually struggled to make any money... and has struggled with some of its more bizarre legal theories. Unfortunately, in late 2015, one of Rightscorp's partners got a big ruling against Cox, arguing that Cox violated the DMCA by not properly terminating repeat infringers (as we noted at the time, this was based on a tortured interpretation of the law. The case is still winding its way through the appeals process, but Rightscorp and its partners have continued to push forward, using the ruling in that BMG v. Cox case to pressure others. At least one other ISP has already been sued. And, now, the company is out claiming that it's talking with "top ISPs" to get them to incorporate Rightscorp's copyright trolling efforts directly into their own infringement mitigation procedures: “An ISP Good Corporate Citizenship Program is what we feel will drive revenue associated with our primary revenue model. This program is an attempt to garner the attention and ultimately inspire a behavior shift in any ISP that elects to embrace our suggestions to be DMCA-compliant,” the company told shareholders yesterday. “In this program, we ask for the ISPs to forward our notices referencing the infringement and the settlement offer. We ask that ISPs take action against repeat infringers through suspensions or a redirect screen. A redirect screen will guide the infringer to our payment screen while limiting all but essential internet access.” In other words, Rightscorp's demand and payment processes would get included directly into how the ISP notifies a user that someone has discovered the possibility of infringing activity on the account. Of course, issuing a press release saying that they're "now beginning to have some initial and very thorough discussions with a handful of the top ISPs" is... weird. You do your press releases after you come to a deal, not as you're beginning a conversation with companies who almost certainly don't want to work with you. The reality here is likely that this press release is just an attempt to signal to ISPs to be more receptive. I highly doubt it will work on most large ISPs who are slightly more sophisticated than to be duped by something as silly as this. However, the threat of the BMG case being seen as good law is still a huge problem for those ISPs and hopefully the case will get dumped, and we can all go back to watching Rightscorp fail to make any money from its plans. Remember, in the BMG case, it came out that Rightscorp had a phone script that told people it accused of infringing that if they wanted to prove they were "innocent" they had to hand their computers over to the local police department so they could perform a search. Really. Does anyone think that a company with that sort of ethical compass should be the official partner of any ISP? On top of that, as TorrentFreak points out in its article, for all the talk of how Rightscorp is a "friendlier" copyright troll in that it only demands $20 to $30 when it finds an infringement, that's misleading. Because, like responding to spam leading to more spam, paying Rightscorp can lead to many more demands: In the wake of several similar reports, this week a Reddit user reported that Rightscorp asked him to pay a single $20 fine for pirating a song. After paying up, the next day the company allegedly called the user back and demanded payment for a further 200 notices. Permalink | Comments | Email This Story

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We've written a few times now about the case involving the band "The Slants" and their fight against the US Patent and Trademark Office concerning whether or not the band could trademark its own name (and, yes, this case is indirectly tied to the fight over whether or not the Washington Redskins can keep its team name trademarked). The key issue is a part of trademark law -- §1052(a) -- that says that the USPTO can deny trademarks if they "disparage... or bring into contempt or disrepute... persons, living or dead." When we first came across this case, a few years back, I argued that this clause did not violate the First Amendment. My argument, originally, was that a failure to grant a trademark was not restricting speech in any way (in fact, it was the opposite -- it was allowing more speech, since the registered trademark could no longer be used to block the speech of others). But the issue is a tricky one, and after thinking about it more, reading much more and talking to a number of lawyers, my position shifted. And the hinge on which it shifted was this: the problem with 1052(a) was that it involved the government determining whether it "blessed" something with a trademark based on the content. And that, right there, has always been seen as a problem for the First Amendment. The government should not be making any subjective decisions based on expression -- and, yet, under 1052(a) it was. And now... the Supreme Court has agreed with that view and has struck down 15 USC 1052(a) as unconstitutional under the First Amendment, which makes this a big win for the First Amendment. And, on top of that, the Court went so far as to state upfront that a favorite claim of lots of angry people (on all sides of the political spectrum) these days -- that "hate speech" is somehow not "free speech" -- is simply untrue. The full ruling is 39 pages, which includes different Justices agreeing on some parts and not others, and writing separate concurring opinions -- but the overall point is clear. The court notes that the government, itself, is protected by the First Amendment and can take its own viewpoint on things, but this is different, because it's not content created by the government: At issue here is the content of trademarks that are registered by the PTO, an arm of the Federal Government. The Federal Government does not dream up these marks, and it does not edit marks submitted for registration.Except as required by the statute involved here, 15 U. S. C. §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. Thus, unless that section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Government policy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register. Instead, if the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory. Thus, there is no legitimate argument that the government rejecting trademarks for disparagement violates the government's own First Amendment rights. Then, there's the question of whether this is denying someone a benefit based on their constitutionally protected expression. The PTO pointed to a few other cases involving government subsidies, which has said the government can deny subsidies over activities it does not wish to promote. However, the Court rejects the PTO's argument here fairly simply, saying that registering a trademark is quite different than getting a subsidy. The PTO also argues that this issue deserves less First Amendment scrutiny because -- by definition -- trademarks involve commercial speech. But the Court rejects that and makes its most forceful statement in support of free speech -- even when hateful. It's this part of the ruling that seems likely to be quoted in many free speech cases in the future concerning hateful speech: But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Yes. Demeaning speech is hateful. Yes, hateful speech is generally a bad thing. But, no, we don't block it because the First Amendment strongly protects all such speech, out of a fear that opening up that door will allow in censorship of merely controversial ideas. And the Supreme Court then also makes another important point, that if you allow the First Amendment to be chipped away on "commercial speech" like this, you create all sorts of other problems: There is also a deeper problem with the argument thatcommercial speech may be cleansed of any expressionlikely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political orsocial “volatility,” free speech would be endangered. You need to protect the speech you dislike because the speech you may like may be disliked by others. In the end, this is a good win for the First Amendment and for free speech. Permalink | Comments | Email This Story

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A GOP data firm has accepted responsibility for leaving the personal data of 198 million Americans (aka: most of the country's voting populace) openly accessible on an Amazon server in the biggest voter data leak in global history. Deep Root Analytics, the owner of the data, has long been contracted by the Republican National Committee to measure voter opinions on a wide variety of issues, from health care to gun control. As part of their contract with the RNC, the group pulls voter information from a wide variety of sources, ranging from Reddit to the Karl Rove super PAC American Crossroads. This data, which includes religious affiliation and ethnicity, is then utilized to help craft PR efforts and other messaging, as well as to determine turnout and voter preferences. And, according to analysis of the data and previous profiles of the company like this one over at Ad Age, this firm was hugely influential in getting Donald Trump's "populist" message out to voters during the last election cycle. But last week, UpGuard cyber risk analyst Chris Vickery discovered that Deep Root had been storing a massive amount of this data on Amazon servers, publicly accessible via the internet, with absolutely no apparent security precautions whatsoever: The data repository, an Amazon Web Services S3 bucket, lacked any protection against access. As such, anyone with an internet connection could have accessed the Republican data operation used to power Donald Trump’s presidential victory, simply by navigating to a six-character Amazon subdomain: “dra-dw”. Vickery frequently hunts for misconfigured data sources on behalf of UpGuard's Cyber Risk Team, often finding everything from military engineering plans to lists of potential terrorists -- simply sitting out in the open. Vickery had recently exposed a top defense contractor for doing something similar, albeit on a notably smaller scale. In this instance, the openly-accessible data included names, addresses, birthdates, phone numbers, troves of stored online user posts, collected over the better part of the last decade: "Within “data_trust” are two massive stores of personal information collectively representing up to 198 million potential voters. Consisting primarily of two file repositories, a 256 GB folder for the 2008 presidential election and a 233 GB folder for 2012, each containing fifty-one files - one for every state, as well as the District of Columbia. Each file, formatted as a comma separated value (.csv), lists an internal, 32-character alphanumeric “RNC ID”—such as, for example, 530C2598-6EF4-4A56-9A7X-2FCA466FX2E2—used to uniquely identify every potential voter in the database. These RNC IDS uniquely link disparate data sets together, combining dozens of sensitive and personally identifying data points, making it possible to piece together a striking amount of detail on individual Americans specified by name." One segment of the files contained modeled data about each individual voter's likely positions on 46 different issues. Other portions of the data detail whether voters are registered, and whether they are currently on the federal "Do Not Call" list (you may recall that the RNC is currently supporting a proposal that would let them spam your voicemail inbox without your phone ringing). Collectively, this data was collected and used by a massive number of Republican outfits, including Americans for Prosperity, market research firm TargetPoint, Causeway Solutions, and more. The security faux pas is considered one of the most monumental ever documented in any country. The 198 million American voters exposed by this screw up dwarves the previous biggest leak -- a leak of the voting data of 93.4 million Mexican citizens -- as well as the now-third biggest leak of this kind ever -- the exposure of the data of 55 million voters in the Philippines. On the plus side, a statement being provided by Deep Root to the media takes ownership of the screw up, without too much of the couching you often see after such breaches: "We have engaged Stroz Freidberg to conduct a thorough review, and that process is underway. Based upon this review we have determined that the access that was made without our knowledge happened because of a change that was made in the files’ asset access protocols. We are in the process of determining how that change was made and take full responsibility for the change, but suffice to say we have updated the settings to prevent further access. We believe the change that was made happened post June 1 2017, which was when we last evaluated and updated our security settings. We do not believe that our systems have been hacked. To date, the only entity that we are aware of that had access to the data was Chris Vickery." Still, it's not exactly a confidence builder to witness the largest leak of voter data in global history as we're busy trying to ascertain just how secure our clearly dysfunctional voting systems are to malicious outside influence -- and debating the slow-but-steady erosion of consumer privacy protections being spearheaded by the GOP. 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Protect up to 5 of your devices from prying eyes with a $49.99 lifetime subscription to VPN Unlimited. You'll have access to servers in 39 countries with unlimited bandwidth and an unlimited high-speed connection. Check out their answers to TorrentFreak's 2016 VPN survey and see if they're the right fit for you. There are multiple subscription options available in the Techdirt Deals Store. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Former FBI Director James Comey made plenty of headlines with his insistence cellphone encryption would be the end of law enforcement as we know it. Comey's assertions made it seem as though regular police investigative work was no longer of any use and that any and all evidence pertinent to cases resided behind cellphone passcodes. He insisted the problem would only get worse in the future. If not put to an end by legislated backdoors or smart tech guys coding up "safe" holes in device encryption, we may as well accept the fact that no criminal committing more than a moving violation would ever be brought to justice. Default encryption does pose a problem for law enforcement, but it's nowhere near as insurmountable as Comey has portrayed it. Multiple FOIA requests handled through MuckRock have shown law enforcement still has several phone-cracking options at its disposal and doesn't seem to be having many problems recovering evidence. This is superbly illustrated in documents obtained from the Tulsa and Tuscon (AZ) Police Departments by Curtis Waltman. Tuscon PD documents [PDF] show law enforcement officers are using tools crafted by the same company that provided the hack to the FBI in the San Bernardino case, among several other options. But the real motherlode is the Tulsa PD's log of cracked phones. The kicker really is how often these are being used - it is simply really hard to believe that out of the 783 times Tulsa Police used their extraction devices, all were for crimes in which it was necessary to look at all of the phone’s data… There are some days where the devices were used multiple times - Tulsa used theirs eight times on February 28th of this year, eight again on April 3rd, and a whopping 14 times on May 10th 2016. That is a whole lot of data that Tulsa was able to tap into, and we aren’t even able to understand the why. The document contains page after page of cracked phones, ranging from Samsungs to HTCs to LGs… even iPhones (5 and 6). "Going dark" remains a Comey fairy tale, for the most part, if these documents are anything to go by. And there's apparently very few rules for deployment of cellphone-cracking devices. Only one PD in Arizona returned any guidelines in response to requests and those rules basically state there are no rules. The Mesa PD's Computer Forensic Unit makes the most of its limited resources by limiting its work to… any crime at all. This is the list of criminal activity the unit provides forensic work for, listed in order of priority. Homicide Sexual Assault Child Crimes (which I assume means "crimes against children," rather than crimes committed BY children) Aggravated Assault/Robbery Property Crimes All other felonies All misdemeanors Everything. That would explain the number of cellphones accessed by these PDs. Presumably other PDs are also operating under very loose guidance or none at all. This sort of intrusiveness should be limited to serious felonies and investigations where it's plainly apparent the best route to evidence runs through the suspect's cellphone. Otherwise, law enforcement agencies are just using these tools because they have them, not because they necessarily need them. Permalink | Comments | Email This Story

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A new study from Tivo (pdf) notes that nearly half of current pay TV subscribers are considering cutting the cord this year. That's not particularly surprising given the fact that the first quarter set cord cutting records, and the second quarter is expected to be significantly worse. Similarly unsurprising is the fact that of these defecting customers, roughly 80% of those departing say they're doing so because traditional cable TV service is simply too expensive: 37.1% of respondents spent at least $101 per month on cable TV, with some spending upwards of $150 per month, with trends only aiming higher. While cable providers often pay ample lip service to "providing value," the entire cable and broadcast sector continues to believe that it can simply refuse to compete on price with a growing roster of streaming competitors now arriving at the gates of their beloved cash cow. Case in point is Charter Communications, which after a recent acquisition spree has been raising TV rates upwards of 40% despite the supposed bump in competition. Charter CEO Tom Rutledge, who was deemed to be the highest paid executive in the United States last year at $98 million, has insisted that these customers were simply "mispriced" under previous ownership and needed to be nudged in the "right direction" (read: paying even more money for the same service they already thought was too expensive): "It’s a difficult thing to model. But we’re coming at it both ways, both from creating a value proposition in the pricing and packaging we have, and doing those smart things that you can do with an existing customer base that’s been mispriced to move them in the right direction." That's gibberish, and shockingly, this kind of tone deafness to the overall trajectory of the cable sector is only causing a spike in cable TV defections at the company, which lost more than 100,000 cable TV subscribers last quarter. Tivo makes it clear that the cable industry can't continue the ongoing head-in-the-sand approach to dealing with the rise of cord cutting and streaming competition: When the increase in monthly bills is coupled with the fact that 81.4% of unsatisfied respondents selected “Too expensive/increase fees for cable/satellite service,” it becomes evident that something must be done about this group. With more options than ever for TV in 2017, consumers continue to get smarter about their TV options, and many have discovered ways to access TV for far less than $100 a month. Skinny buddle offerings have increased, too, and options include Dish Networks’ SlingTV, DIRECTV NOW and Sony’s PlayStation Vue. Instead of competing on price and package flexibility, most large cable companies (like Comcast) have responded to cord cutting by not only raising TV rates, but ramping up deployment of arbitrary and unnecessary broadband usage caps and "overage fees", allowing them to counter any lost TV revenues with broadband price hikes, and punish folks looking to wander away from Comcast's own TV walled garden. But Charter is prohibited from using caps for another six years as a condition of its recent megamerger, conditions the FCC has started to slowly but surely nibble away at. Still, the cable industry has at least progressed in one meaningful metric: a few years ago it denied any of this was happening whatsoever. Permalink | Comments | Email This Story

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The protections of the Fifth Amendment are running up against technology and often coming out on the losing end. Court rulings have been anything but consistent to this point. So far it appears password protection beats fingerprints, but not by much. It all comes down to the individual court. Some view passwords as possibly testimonial in and of themselves, and side with defendants. Others view passwords as something standing in the way of compelled evidence production and punish holdouts with contempt of court charges. That's what's happening to a Florida man suspected of child abuse. He claims he's given law enforcement his phone's password already, but prosecutors claim the password failed to unlock his phone. They believe his phone holds evidence of the physical abuse alleged -- a claim that seems a bit less believable than those made about child porn viewers and drug dealers. The court, however, has sided with prosecutors. A Hollywood man must serve 180 days in jail for refusing to give up his iPhone password to police, a Broward judge ruled Tuesday — the latest salvo in intensifying legal battles over law-enforcement access to smart phones. Christopher Wheeler, 41, was taken into custody in a Broward Circuit Court, insisting he had already provided the pass code to police investigating him for child abuse, although the number did not work. All that can be said for certain is prosecutors still don't have an unlocked phone. As prosecutors and this judge see it, the only explanation is that Wheeler lied. That earns him six months of jail time. Maybe Wheeler should have said he couldn't remember. As Wheeler was jailed Tuesday, the same issue was unfolding in Miami-Dade for a man accused of extorting a social-media celebrity over stolen sex videos. That man, Wesley Victor, and his girlfriend had been ordered by a judge to produce a pass code to phones suspected of containing text messages showing their collusion in the extortion plot. Victor claimed he didn't remember the number. He prevailed. This would be the same judge who determined turning over a password had no Fifth Amendment implications. However, the court found it plausible the defendant might not be able to remember the password to a phone he'd last used over ten months ago. But the ruling doesn't necessarily say the defendant is telling the truth. It only goes so far as saying it's almost impossible to prove he's lying. Given the gap between the phone's seizure and the demand for a password, it's a plausible claim. His co-defendant made no such claim. Like Wheeler above, Victor's girlfriend handed over a password but it didn't work. The court has asked her to explain why. Given the judge's earlier Fifth Amendment determination, it's safe to assume Hencha Voigt will be facing jail time if the explanation isn't to the judge's liking. Permalink | Comments | Email This Story

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This week, after a Wisconson senator attacked net neutrality by bemoaning the supposed lack of "fast lanes" online, JoeCool won first place for insightful by summing up why that's nonsense: The internet is ONE BIG "FAST LANE". What the ISPs want is to create a bunch of "slow lanes" to shove people into unless they pay a premium to get what they originally had. In second place on the insightful side, we've got the first of several winning comments this week that came in response to Theresa May's attempts to kill encryption. An anonymous commenter was struck with a reminiscence: Panopticon I remember spending New Years Eve 1999 watching a documentary about the rise of the CCTV surveillance state in London and being disgusted by the trend even then. The dreams of Jeremy Bentham are alive and well in England (and here in the US, as well). This is not now, nor has it ever been, about catching terrorists. It's about total control of the populace, the dream of every tyrant. They just can't seem to figure out that even if they had the tech to see, hear, and read everything, they don't have the manpower to do so and make sense of the intel, but I have no doubt they'll keep trying. For editor's choice on the insightful side, we look at Australia's Attorney General's similar campaign against encryption, in which he suggested the public would be fine with it because their use of Facebook shows they don't care about privacy. Roger Strong suggested he put his money where his mouth is: Lead by example, George. Enact a policy that all government communications and storage encryption - including that by intelligence agencies - have back doors. With only the good guys given the passwords, of course. Then continue the top-down approach. Mandate back doors for banks and their online banking systems. Then other large corporations. Once the public sees how that works, they'll respond accordingly. Hope This Helps! Next, we've got a response to the latest bogus takedown of a YouTube video by a record label, where PlagueSD suggested a bit of turnabout as fair play: The Dandy Warhols should apply some "RIAA math" and turn around and give a "Bill" to Universal Music for any views that they would have had if the site was never taken down. Over on the funny side, both our top comments come in response to Theresa May's anti-encryption efforts. The first place winner is That Anonymous Coward, responding to a commenter who (for some insane reason) sees no problem with destroying encryption, but feared a conspiracy to silence their opinion on the matter: Oh honey, get down off the cross... someone needs the wood. In second place, we've got Gorshkov focusing on the other key part of the story — the fact that May's own party is actively using WhatsApp: Hmmmmm ........ does this mean that the Tories are terrorists, and should be locked up? For editor's choice on the funny side, we start out looking at yet another anti-encryption crusader — James Clapper, whose latest "nerd harder" demands gave TechDescartes a marketing idea: The Clapper Just invent a device that allows you to turn encryption on by clapping your hands. Turning it off would be as easy as clapping again. Clap on! Clap off! Finally, we've got a response from Rapnel to the idea of using geofencing to prevent ISIS from using small drones: We should regulate the air and apply penalties to any producers of air when air is found to be responsible for materially supporting or providing a platform for anything using air in a way we don't like. And we should geofence it too. And monitor it. And suck it up with a big air-vume. And we could distribute that air fairly to airtists so that they can produce more, air. .. but that's too leftist, isn't it? Or is it.. I'm torn. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago It was this week in 2012 that The Oatmeal wrote a level-headed criticism of FunnyJunk and received, in return, a somewhat scattershot threat of a defamation lawsuit. As a result, a whole lot of internet attention and ire was turned on one man, whose name we'd become very familiar with: Charles Carreon, who dug in his heels and tried to shut down The Oatmeal's fundraiser. Then he lashed out and accused Matt Inman of "instigating security attacks", and then swore he'd find some legal avenue by which to go after Inman. The saga, as you know, will continue in future weeks... Ten Years Ago This week in 2007, media companies continued to pile on to YouTube with money-grab lawsuits. Sports leagues were actively fighting to claim ownership of facts about games, with the NCAA rejecting a reporter for live-blogging and Major League Baseball taking its legal fight over fantasy leagues to the appeals court. The MPAA and RIAA teamed up to create yet another lobbying group hot on the heels of the new Copyright Alliance, AT&T decided to start filtering infringing content for Hollywood, and a worrying court ruling ordered TorrentSpy to collect and hand over additional data on its users. Fifteen Years Ago This week in 2002, in an act that practically defined "too little, too late", Sony and Universal announced plans to cut prices on digital music downloads. The BSA was beating its usual drum about the dangers of software piracy, the government was floundering when it came to internal use of technology, and the geeks in Silicon Valley were continuing to get more political. It was also this week that the late, great David Bowie shared some of his refreshingly forward-looking thoughts on copyright in the digital age, saying "I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing." Almost everything he said about the nature of the coming change was correct, but he underestimated the power, tenacity and deep pockets of those who continue to fight tooth and nail against it. Ninety-Seven Years Ago Most cliches exist for a reason — though tired, they are apt. It's easy to forget they had to come from somewhere, and fun to find out where that was. And so this week we celebrate the birth of a common political cliche: the "smoke-filled room" where big decisions are made by powerful people. It was on June 11th, 1920 that Raymond Clapper of the United Press first used the term to describe the nomination process for Warren G. Harding at the Republican National Convention, presumably not knowing it would enter the lexicon as a go-to shorthand. Permalink | Comments | Email This Story

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People who do not have a legal reason to have content delisted are still trying to trick Google into compliance with various illegal actions. So far, we've seen bogus lawsuits filed by fake plaintiffs against fake defendants, slid by inattentive judges to secure takedown orders. We've seen people trying to limit negative search engine results by forging judge's signatures on fake orders. We've seen people assemble fake news sites to post copies of negative content solely for the purpose of targeting the original posts with fraudulent takedown orders. Eugene Volokh has dug up another interesting libel takedown order, supposedly issued by a Michigan federal court. It awards the plaintiff, Abraham Motamedi, $5,720 in legal fees and the delisting of sex offender registry-related URLs (only one of which isn't a top-level domain). From the order [PDF]: IT IS FURTHER ORDERED: that to prevent further or future harm to Plaintiff’s reputation in the community and protect his employment from the dangers of labeling him as a “sex offender”, Plaintiff is awarded a permanent injunction against Defendants … compelling these Defendants to immediately remove any and all sex offender postings of Plaintiff caused by these Defendants, including but not limited to the sex offender postings presently on the following websites: – http://www.sexoffenderrecord.com/citydirectory/ID/Meridian/Abraham_Motamedi_1353346 – http://www.sexcrimedata.com/ – http://ev.onlinedetective.com/ – http://onlinedetective.com/ – http://offendex.com/ The plaintiff also is granted a permanent injunction against further posts linking him to sexual offenses. IT IS FURTHER ORDERED: that to prevent further or future harm to Plaintiff’s reputation in the community and protect his employment from the dangers of labeling him as a “sex offender”, Plaintiff is awarded a permanent injunction against Defendants CHARLES RODERICK II, a/k/a Chuck Roderick, an individual, WEB EXPRESS, L.L.C., d/b/a “Online Detective”, an Arizona limited liability company; and, ONLINEDETECTIVE.COM, L.L.C., an Arizona Limited Liability Company compelling these Defendants to refrain from ever posting any similar sex offender posting concerning 5 Plaintiff or otherwise posting defamatory statements concerning Plaintiff on the internet. Volokh says this was submitted to Google, despite the order naming only the sites listed above. The order doesn't discuss Section 230 once, even though it skips a set of intermediaries in its haste to get to the delisting. But that's really no surprise, considering no judge ever saw a complaint, much less signed their name to this judgment. There is no Motamedi v. Oesterblad in the Eastern District of Michigan. The case number 2:13-cv-14541 (the number listed in the order) in that district corresponds to a completely different order. There is no Daniel Ro. Markus, the lawyer who, according to the order, was responsible for the case. The order submitted to Google was a forgery, like the ones discussed here (Lichterman and Aukerman), here (Arnstein), and here (Haas). Nevertheless, Abraham Motamedi insists it's a real court order. Volokh spoke to Motamedi, who claimed the order was legit (despite the case being nonexistent). This isn't necessarily an indication Motamedi crafted the completely-fake court order. It could mean some shady reputation management company did it on his behalf. But considering Motamedi never expressed any hesitance about his assertions, it's safe to assume he's well aware this isn't legitimate. Additional weirdness: the criminal conviction Motamedi is trying to make vanish was handed down in Idaho and he now apparently lives in Nevada. Where Michigan factors into all of this is a mystery, although I suppose completely fake court documents don't have to adhere to any sort of jurisdictional limits. As more evidence of forged/fake court documents is uncovered, it's crucial that that intermediaries pay close attention to any supposed court order they receive. Failing to give these documents additional scrutiny will only encourage further abuse. Permalink | Comments | Email This Story

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I'll forgive our dear readers if they don't have the name Matthew Polka floating in their memories right at this moment. As a refresher, he's the CEO of American Cable Association, the lobbying group that represents smaller cable and broadband providers. One would think that a group like this would be very interested in breaking up the near-monopolies held by the larger players in this industry and fostering more competition within the marketplace, except that Polka has literally said the opposite. The ACA has also been involved in battles against any sort of regulation in the broadband industry, against privacy rules with any real teeth, and against the plan to require cable companies to open service to third-party cable boxes. And in some respects on those last points, I get it. Hey, the ACA is lobbying for its member clients, not for the American people. Even as Polka has made noise about how great non-competition would be for America, everyone knew that was silly. What he says is clearly crafted to make his cable company clients as happy as possible, obviously. The cable TV business is in trouble—in fact, it is "failing" as a business due to rising programming costs and consumers switching from traditional TV subscriptions to online video streaming, according to a cable lobbyist group. "As a business, it is failing," said Matthew Polka, CEO of the American Cable Association (ACA). "It is very, very difficult for a cable operator in many cases to even break even on the cable side of the business, which is why broadband is so important, giving consumers more of a choice that we can't give them on cable [TV]." Well, that's certainly different. These comments by Polka about how the cable television industry is failing differ from the doom-and-gloom sideshow too often pitched as a reason for cable companies to not do all sorts of things that would benefit customers. Instead, Polka's tone appears to be sincere on this point: the cable television industry, as we have come to know it, is in its death throes. Given cord-cutting and a new customer adoption rate that has been falling in the younger generations, it's refreshing to hear a cable lobbyist come out and admit all of this. The problem is that when you square this with the other point he made -- the importance of broadband -- a shiver bolts down the spine. That's one reason cable companies in the ACA see broadband as "their future," Polka said. A cable company executive who appeared alongside Polka on the C-SPAN show echoed those comments. Video is "certainly our worst product," said Tom Larsen, senior VP of government and public relations for cable company Mediacom. "It makes the least amount of money." Larsen and Polka both praised the FCC's new Republican leadership for taking a deregulatory approach to broadband. This, of course, refers in part to the gutting of net neutrality, the death of which is being to served to the American public by the same new leadership Polka is so happy to praise. It should be immediately clear what the ACA is hoping for when you take into account the sum of its previous stances, nearly all of which have been de facto anti-competition, as well as this newfound full focus on the broadband portion of its members' services. It expects to be able to strangle the ISP industry in the same way its anti-competitive practices helped pave the way for cable providers being unable to respond to customer demands. Permalink | Comments | Email This Story

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In March we wrote about the unfortunate situation of two news publications in nearby Santa Clara, California in court in what appeared to be a clear SLAPP suit. The more established publication, "Santa Clara Weekly" and its publisher Miles Barber, had sued a new upstart, "Santa Clara News Online" and its publisher Robert Haugh. It seemed fairly clear that Barber didn't like the fact that Haugh had been criticizing the Weekly, and the lawsuit was just filed to make a nuisance for Haugh. It was notable that the complaint didn't cite a single blog post by Haugh or even quote him. It just paraphrased (badly) a bunch of clearly opinion statements from Haugh. Haugh got assistance from Ken "Popehat" White, who asked the court to strike the lawsuit for violating California's anti-SLAPP law. Thankfully, the judge in that case has agreed and dumped the case, and has denied Barber's request to file an amended complaint on top of that. As of yet, there does not appear to be a full ruling on this, but congrats to Ken White and Robert Haugh for succeeding here. And, once again, this is a reminder of the need for strong anti-SLAPP laws. They help get rid of frivolous, censorious cases quickly, and they make the plaintiff pay the legal fees of the defendant (which also helps to deter other such frivolous cases). Permalink | Comments | Email This Story

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Last year, Mike wrote about an interesting case between a small group of enterprising comic artists and Dr. Seuss Enterprises. Comicmix artists had created a parody mashup of Dr. Suess' Oh The Places You'll Go and the Star Trek universe to create Oh The Places You'll Boldly Go, a rather sweet take on both franchises. The creators of this new work setup a crowdfunding campaign, which the Dr. Seuss estate halted with takedown notices. The case ended up in court, with the Seuss estate claiming that the new work infringed both its copyright and trademark rights. The creators, along with Ken "Popehat" White, claimed all of this was well within the boundaries of Fair Use. Well, the judge for the case has now ruled on the trademark matter, and it's a big win for Comicmix. Additionally, while the copyright claim survives for now, the judge makes it clear that things aren't looking great for that claim either. Now, the United States District Court for the Southern District of California court has ruled on the trademark question and found that there is no valid trademark claim thanks to "nominative fair use," and also indicated that it would be favorably disposed to fair use defenses on the copyright question. The estate has two weeks to prove copyright damages and to amend its trademark claims. It's difficult to see how the Seuss Estate is possibly going to go about demonstrating copyright damages. Given the judge's review of the material and her analysis thus far on the copyright question, the copyright claim has a hell of a hill to climb. The Seuss estate argued that adjudicating the matter of Fair Use on the copyright claim at the motion to dismiss stage was inappropriate because of all the facts required to make that assessment. The judge didn't buy that, largely because the singular claim of harm made by the estate was the claim that it lost out on the opportunity to license the work at all. As a threshold matter, Plaintiff argues that “while possible in rare instances to decide fair use at the pleading stage, it is inappropriate here, where significant material facts are necessary to make a determination of fair use.” (Opp’n 9.) However, the only genuine fact Plaintiff points to is that “the issue of whether the Defendants’ use . . . will appreciably harm the value of [Plaintiff’s] Works or . . . market simply cannot be made without discovery and further development of the record on this issue.” (Id. at 15–16.) And Defendants point out that Plaintiff’s sole allegation of market harm is that Defendants “usurped DSE’s licensing opportunities.” (Reply 4 (citing Compl. ¶ 32).) Thus, as long as the Court takes Plaintiff’s allegation of market harm as true, Defendants are otherwise correct that “[t]he complaint, and documents sufficiently referenced therein or otherwise subject to judicial notice, are sufficient to enable the Court to evaluate the issue of fair use.” (MTD 6.) In particular, the Complaint itself raises the issue of fair use, (Compl. ¶ 35), and the contents of the two primary books and other relevant works are before the Court and not in reasonable dispute, (RJN Exs. 5, 6).1 Accordingly, the Court concludes that fair use analysis is appropriate on this Motion to Dismiss and addresses each factor in turn. As a bonus, the judge also acknowledges that mashup art is an emerging medium and states that bending to the claim by the Seuss estate would effectively kill off an entire form of art. This case presents an important question regarding the emerging “mash-up” culture where artists combine two independent works in a new and unique way. See, e.g., Art Term, Postmodernism, Tate, http://www.tate.org.uk/art/art-terms/p/postmodernism (last visited Apr. 28, 2017) (“Often mixing different artistic and popular styles and media, postmodernist art can also consciously and self-consciously borrow from or ironically comment on a range of styles from the past.”). Applying the fair use factors in the manner Plaintiff outlines would almost always preclude a finding of fair use under these circumstances. However, if fair use was not viable in a case such as this, an entire body of highly creative work would be effectively foreclosed. In other words, shuttering an entire art form is not the purpose of copyright law at all, hence this sort of Fair Use defense. It's as eloquent a nod to why creativity ought not be stifled in favor of protectionism as I've seen in a court document and should be required reading for any judge ruling on matters of Fair Use. And so we wait for two weeks to see what, if any, documented claim of harm the Seuss Estate can work up for its copyright claim. I expect we will all be underwhelmed. Permalink | Comments | Email This Story

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We've seen some nice fair use wins lately, and here's another good one (though, I'd still argue it shouldn't have even needed fair use... but we'll get there), first written up by Eriq Gardner at The Hollywood Reporter. This is actually a lawsuit that's gone on for nearly a decade (and a dispute that's gone on for longer than that), and we first wrote about this case asking the simple question can you copyright the story of a band? Here's the shortened background: The Four Seasons was a well known music group decades ago. At some point in the late 1980s, one member of the band, Tommy DeVito, agreed to team up with a fan/lawyer, Rex Woodward, to write his autobiography. Woodward agreed to do all the writing based on interviews he conducted with DeVito, and his own knowledge of the band. That book was completed, but never published. DeVito and Woodward had an agreement that the book would be published with both their names and they'd split the proceeds 50/50. Soon after the book's completion Woodward passed away from lung cancer. Unbeknownst to Woodward's surviving family, DeVito registered the copyright on the autobiography a few months later, but without Woodward's name included. And, still, the book was never published. In the mid-2000s, Woodward's family again tried to get the book published, just as the Broadway play "Jersey Boys" was about to open. Jersey Boys was a play about the Four Seasons, and it became phenomenally successful around the globe. Many of the people involved with the play admitted in various interviews that some of the play was based on DeVito's unpublished autobiography. And that is why Woodward's family sued, claiming that the play was a derivative work of the book whose copyright should have partially been held by Woodward, and demanding a cut of the play's massive profits. As mentioned, the court case has taken basically a decade, and it's bounced back and forth between the district court and the appeals court, with many, many, many different rulings (the procedural history is... crazy -- but also unnecessary to go through here, other than to mention that many of the defendants settled out of the case earlier). Either way, it ended up back in court for an actual trial, and the jury said that the use was not fair use, and awarded the Woodward family 10% of the money from the play. In reviewing this, the judge has now tossed out the jury's decision there, and said that, as a matter of law, it's clear that the use of the work is covered by fair use and not infringing. The court goes through the standard four factors test for fair use (though, starts with number four -- which you don't see that often). The judge, Robert Jones, rightly points out that the effect on the market (factor 4) looks pretty bad for the Woodward family, since it's not clear there was any actual market for the book before the play existed. That is, the play only increased the market, rather than decreased it. The evidence at trial indicated that before the Play debuted, the Work had no market value. Woodard, DeVito, Plaintiff, and Plaintiff’s sister had been unable to find any company interested in publishing the Work despite their various attempts to do so between 1990 and 2005, because interest in the Four Seasons was not great enough to make sales of the Work profitable. Under these circumstances, the fourth and most important Harper & Row factor “greatly favors” a defendant. (I'll leave aside the rant I have inside me about courts claiming the 4th factor is the "most important" and save that for another day). The court goes on, and addresses the third factor as well: To the extent the Work may be profitable today, it is almost certainly only because of the Play, which—and this is important under the third Harper & Row factor—consists of over 50% musical works (by running time) in which Plaintiff has no copyright, and the remainder of which (the non-musical script of the Play) is comprised of less than 1% of creative expression found in the Work and uses less than 1% of the Work. If anything, the Play has increased the value of the Work. As for the "purpose and character of the work, the judge says that it weighs against fair use, but doesn't say much else about it. On the nature of the work, the court notes that in many cases, publishing an unpublished work weighs strongly against fair use -- but in this case, it's different because the reason the work was unpublished... was because it was deemed unpublishable: A work that is only unpublished because it is unpublishable despite great efforts, however, is an atypical situation. Such a work is not unavailable to the public because of a deliberate choice by the copyright owner, but because it is not commercially viable. In this case, the unpublished nature of the Work does not overshadow its biographical nature. The Court finds that this factor weighs in favor fair use. The judge then goes into more detail about the fact that very little of the copyrightable expression in the book actually shows up in the play. He notes that there are just a few small sections that involve copyrightable expression and where there's substantial similarity in the play (indeed, the judge notes that he went through the "painstaking" process of reviewing a DVD of the musical with the written work to find all the similar parts). The court then notes each of the areas of similarity -- many of which seem... pretty minimally related to the book, but the judge says there's at least enough there to consider if it's infringement. And in the end, finds... 145 words at issue. In summary, at most, the jury could have found about 145 creative words to have been copied from the Work into the Play, whether as dialogue or creative descriptions of events. Those 145 words constitute about 0.2% of the approximately 68,500 words in the Work (approximately 250 words per page times 274 pages). This factor strongly weighs in favor of a finding of fair use, at least where the “heart” of the Work was not infringed. The court further notes that while it can be infringing to use "the heart" of the work, since this work is biographical, the "heart" is fact-based, and thus not subject to copyright protection. Finally the court notes that there's a strong argument that the play about the band is very transformative compared to an unpublished autobiography of one member: The “transformation” in the present case is both a change of purpose and a change of character. The Play takes on a different purpose from the Work when the script (most of which was not taken from the Work) is incorporated into musical performances using material in which Plaintiff has no copyright. The purpose of the Work is primarily to inform. Tommy DeVito set out to vindicate his perspective and reveal hidden truths. Woodard’s writing skills made the Work readable, even if the material was ultimately not commercially publishable. The purpose of the Play, however, is primarily to entertain. Even if the purpose of the Play were primarily to inform, the Play takes on a different character from the Work by the incorporation of Tommy DeVito’s singular perspective into a more complete and balanced description of events based on competing perspectives of all four band members. The Play is structured around this concept, with the characters of DeVito, Gaudio, Massi, and Valli sequentially narrating the Play from their own perspectives during the respectively titled Spring, Summer, Fall, and Winter portions of the play, i.e., the figurative “four seasons” of the history of the band. And in doing so, the Play adds creative expression beyond mere republication.... The transformative nature of the use in this case is significant. And thus, with most of the factors pushing strongly towards fair use... it is determined to be fair use. Of course, the case is far from over. There are still other factors at play and the judge grants a new trial on those points. And, it's possible (likely?) this new ruling will first be appealed. In other words... this decade-long case likely isn't over yet. Permalink | Comments | Email This Story

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