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[l] at 9/18/19 4:23am

Could Space X finally give the busted US telecom sector a much needed kick in the ass? Since 2017, Musk's Space X has been promising that it would launch 800 low orbit satellites capable of delivering cheaper, lower latency broadband to large swaths of the United States by 2020 or 2021. By and large Musk and company appear to have been successful sticking to that promise, insisting recently that this proposed timeline was "pretty much on target." That said, Musk had to fire some folks to ensure that the project was meeting its goals, which itself suggests they may not have been.

More recent government filings indicate that the company may be able to accelerate the deployment of fast low Earth orbit (LEO) satellites across broad swaths of the Southern US. The company says that a number of improvements were discovered in the wake of launching 60 LEO satellites back in May. In a filing (pdf), the company says an adjustment in orbital spacing and other efficiences may bring the service (which will be sold under the "Starlink" brand) online sooner and more broadly than expected:

"This adjustment will accelerate coverage to southern states and US territories, potentially expediting coverage to the southern continental United States by the end of the next hurricane season and reaching other US territories by the following hurricane season.

...SpaceX has demonstrated the effectiveness of its revolutionary deployment process and confirmed its ability to populate three orbital planes with a single launch. By then reorganizing its satellites at their already authorized altitude, SpaceX can place coverage and capacity more evenly and rapidly across more of the US."

Obviously it's way too early to know what kind of pricing we're talking about, but the smaller, mass produced satellites are expected to cost significantly less to deploy and maintain, meaning service pricing should be notably less than the heavily capped, throttled, and expensive satellite services we all know and love. There have been some rumblings that the service could clock in under $50 a month, but it's too early to know if that's going to be doable, or whether the service will be rife with annoying usage limits, throttling, or other restrictions (ensuring it's not a truly symmetrical competitor to something like fiber to the home).

All of that said, there are still reasons to keep expectations in check. This being Musk, hype could be overshadowing reality. The service could also launch with a number of the same arbitrary, cash-grabbing restrictions we've seen developing in the cellular space, something that could get worse in the wake of the death of net neutrality and FCC authority. It's also worth noting that there have been a laundry list of similar efforts that have been just as aggressively hyped that have gone absolutely nowhere, thanks to the complicated economic factors involved in, you know, space:

The history of satellite internet, however, is defined by failure, including one of the largest corporate bankruptcies in history. This was a reality Elon Musk candidly acknowledged to reporters ahead of the Starlink launch. “No one has ever succeeded in making a viable low Earth orbit communication constellation right off the bat,” Musk said. “I do believe we’ll be successful, but it is far from a sure thing."

The other x-factor is AT&T, Verizon, and Comcast, companies that have a thirty year history of doing everything in their power to stifle newly emerging alternatives to their expensive, unpopular services. The three companies all but own countless state legislatures and a significant portion of Congress, who'll all be doing their best (as they have for decades) to ensure that nothing disrupts the existing, uncompetitive cash cow that is the US residential broadband market. Space X will also have to do battle with a number of other deep-pocketed giants (like Amazon) that have been eyeing the space as a potential disruption play.

Still, the promise being made by low-orbit satellites is hard to ignore. But given the power of entrenched players and telecom history, it probably makes sense to keep enthusiasm in check until we have actual, widespread commercial deployment at a price point that's actually appealing to the millions of Americans desperately craving more, better broadband options.



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[l] at 9/17/19 8:51pm

Earlier this year, we discussed a trademark suit brought against Anheuser-Busch InBev by Patagonia, the famed outer-wear maker known best for its association with skiing and outdoor sports apparel. While we usually make a big deal about market separation when it comes to trademark enforcement, this case was notable for two reasons. First, the trade dress choices made by AB InBev for its "Patagonia" beer were quite similar to Patagonia's trademarks, not to mention that AB hosted popup locations at skiing and biking locations to sell its beer, exactly where Patagonia is so well known. Second, AB is a notorious trademark hound, gobbling up all kinds of marks and then wielding them like a cudgel against small entities. If anyone were going to be sensitive to the trademark rights of others, you would think it would be a company like AB. But not so much.

Rather than admitting its error and siding for strong trademark rights, however, AB InBev decided to try to get the lawsuit tossed by claiming that "Patagonia" is not actually well known and therefore should not be afforded federal trademark rights. The court took 20 pages to decide that AB InBev was wrong and that the case would move forward.

U.S. District Judge Virginia A. Phillips disagreed, writing in a 20-page order Tuesday that Patagonia has – at this stage in the proceedings – sufficiently shown its mark is both “famous and distinctive” and that promotion of its brand has factored in its $10 billion in sales since 1985.

“Assuming these allegations are true and construing the facts in the light most favorable to plaintiffs, plaintiffs have sufficiently alleged that its Patagonia mark is “famous” for purposes of its federal trademark dilution,” Philips wrote.

The sales numbers are really all that was required to refute AB's ridiculous claim. Anecdotally, I can say that I haven't been to a ski mountain in a decade or so, and even I am fully aware of Patagonia's brand. The company has been around forever and is a common site out west.

The court also refused to dismiss on AB's claims that it in fact had not abandoned its Patagonia trademark by not using it for half a decade and that there would be no confusion by the public that its "Patagonia"-branded beer would be confused with the clothing company.

Phillips also denied Anheuser-Busch’s request to dismiss on grounds that Patagonia failed to show that customers would associate their beer with its clothing and its brand of environmentalism. The brewer likewise failed in its argument that it had not abandoned the Cerveza Patagonia mark from Warsteiner despite not using the mark for five years.

Rob Tadlock, a member of Patagonia’s legal team, applauded Phillips’ ruling as “a well-reasoned opinion rejecting Anheuser-Busch’s effort to avoid defending Patagonia’s claims, including that Anheuser-Busch committed fraud on the Trademark Office and has deliberately tried to confuse customers into thinking that Patagonia Cerveza is produced by Patagonia, rather than Anheuser-Busch.”

Again, where is AB's strong stance on trademark in this case in which it is the one that appears to have run afoul of another's trademark rights? To the shock of this writer, it appears the company has something of a "trademark for me, but not for thee" philosophy.



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[l] at 9/17/19 4:43pm

Everything old is new again, and the population of tech workers seems to turn over especially fast in the San Francisco Bay Area. I guess I now qualify as an old timer, in that I remember quite clearly when IBM ran a big ad campaign in San Francisco and Chicago to profess its newfound love for Linux. The ad campaign involved stenciling three symbols side-by-side: a peace symbol, a heart, and Tux, the Linux penguin:

The message? Peace, Love, Linux. It didn't make much sense then either. Either way, neither city was happy with the streets being all stenciled up. San Francisco fined IBM $100,000 for graffiti, though perhaps the company figured that was cheaper than buying a bunch of billboards in the same area, and it certainly got more press attention. The story was even more fucked up in Chicago, however. There, one of the random dudes IBM's ad company had hired to paint this ad message all over sidewalks was arrested and sentenced to community service for vandalism. Not great.

So, apparently no one working at Twitter was around for that experience nearly two decades ago, because the company has just done the same thing. Just a few days ago I was at the Powell Street BART station and saw it was completely coated in giant posters of tweets, but apparently they're stenciled on sidewalks nearby as well (I seemed to have missed those)

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[l] at 9/17/19 2:30pm

"Dynamic pricing" is an idea that sounds efficient and effective in economic theory, but often collapses under the weight of customer anger when put into practice. But while that is true of some of the most egregious approaches, other forms of dynamic pricing are ubiquitous and largely accepted — in part because of how the systems work, and in part because of how they present themselves to customers. This week, we're joined by Perfect Price CEO Alex Shartsis to discuss the many facets of dynamic pricing, and whether it deserves the hate it gets.

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[l] at 9/17/19 12:58pm

On Monday, Yahoo News had a bit of a new bombshell in revealing that the closures of various Russian compounds in the US, along with the expulsion of a bunch of Russian diplomats -- which many assumed had to do with alleged election interference -- may have actually been a lot more about the Russians breaching a key FBI encrypted communications system.

American officials discovered that the Russians had dramatically improved their ability to decrypt certain types of secure communications and had successfully tracked devices used by elite FBI surveillance teams. Officials also feared that the Russians may have devised other ways to monitor U.S. intelligence communications, including hacking into computers not connected to the internet. Senior FBI and CIA officials briefed congressional leaders on these issues as part of a wide-ranging examination on Capitol Hill of U.S. counterintelligence vulnerabilities.

These compromises, the full gravity of which became clear to U.S. officials in 2012, gave Russian spies in American cities including Washington, New York and San Francisco key insights into the location of undercover FBI surveillance teams, and likely the actual substance of FBI communications, according to former officials. They provided the Russians opportunities to potentially shake off FBI surveillance and communicate with sensitive human sources, check on remote recording devices and even gather intelligence on their FBI pursuers, the former officials said.

That all seems like a fairly big deal. And, it specifically targeted the FBI's encrypted communications phone system:

That effort compromised the encrypted radio systems used by the FBI’s mobile surveillance teams, which track the movements of Russian spies on American soil, according to more than half a dozen former senior intelligence and national security officials. Around the same time, Russian spies also compromised the FBI teams’ backup communications systems — cellphones outfitted with “push-to-talk” walkie-talkie capabilities. “This was something we took extremely seriously,” said a former senior counterintelligence official.

The Russian operation went beyond tracking the communications devices used by FBI surveillance teams, according to four former senior officials. Working out of secret “listening posts” housed in Russian diplomatic and other government-controlled facilities, the Russians were able to intercept, record and eventually crack the codes to FBI radio communications.

While this is all interesting in the "understanding what the latest spy v. spy fight is about," it's even more incredible in the context of the FBI still fighting to this day to weaken encryption for everyone else. The FBI, under both James Comey and Christopher Wray, have spent years trashing the idea that encrypted communications was important and repeatedly asking the tech industry to insert deliberate vulnerabilities in order to allow US officials to have easier access to encrypted communications. The pushback on this, over and over, is that any such system for "lawful access" will inevitably lead to much greater risk of others being able to hack in as well.

Given that, you'd think that the FBI would be especially sensitive to this risk, now that we know the Russians appear to have cracked at least two of the FBI's encrypted communications systems. Indeed, back in 2015, we highlighted how the FBI used to recommend that citizens use encryption to protect their mobile phones, but they had quietly removed that recommendation right around the time Comey started playing up the "going dark" nonsense.

Of course, it's possible that the folks dealing with the Russians cracking FBI encrypted comms are separate from the people freaking out about consumer use of encryption, but the leadership (i.e., Comey and Wray) certainly had to understand both sides of this. This leaves me all a bit perplexed. Were Comey and Wray so completely clueless that they didn't think these two situations had anything to do with one another? Or does it mean that they thought "hey, if we had our comms exposed, so should everyone else?" Or do they just not care?



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[l] at 9/17/19 11:45am

Turns out the truth is no defense to accusations of libel… at least not in Austria. And not when someone's reputation needs to be protected from [rereads article] substantially true statements. The standard for defamation in Austria comes nowhere close to what we're used to in the United States. The bar is low for the plaintiff and a bunch of insanity for the defendant who said true things and still got dinged for it. (h/t Techdirt reader Rose Crowell)

Here's the background, as detailed by Philip Oltermann for The Guardian:

A German man is being sued by the owners of a four-star hotel in Austria after posting online reviews in which he criticised them for decorating their lobby with a portrait of a “Nazi grandpa” in a uniform adorned with a swastika.

The man, named in court documents as Thomas K, and his wife visited the hotel in the village of Gerlos in the Tyrolean Alps last August. After check-in, they noticed two framed pictures on a wall near the hotel’s entrance, hung above a flower arrangement. One showed a young man wearing a uniform with an eagle and swastika badge, the other an older man.

Using a pseudonym, K posted reviews on Booking.com and TripAdvisor about a week after his visit, one in German and one in English, under the subject header: “At the entrance they display a picture of a Nazi grandpa.”

The review went on to question the wisdom of posting photos of people in Nazi uniforms at a hotel entrance, suggesting it might be the owners' way of sending some sort of message about their biases or sympathies.

The hotel owners were not pleased to be subtly equated to the photos they had placed at the hotel entrance, so they tracked down the reviewer using the phone number provided to Booking.com and sued him for defamation.

First, the owners claimed that the pictures of the men in "Nazi" uniforms were actually just pictures of relatives who were members of the Wehrmacht, not the Nazi party. So, they were just in the army controlled by Nazis, not actually card-carrying Nazis, which seems to be splitting hairs just a bit much when the photos showed a person in a Nazi uniform. They also claimed these were the only photos they had of these relatives, so I guess the guest should have been more understanding.

That was one of the libel claims -- one made in a country where it's apparently possible to defame the dead. Except it wasn't actually libel. It was a fact.

After researching the identity of the two men in the photographs at the German National Archives in Berlin, K was able to prove that both of the men had in fact joined the Nazi party, in 1941 and 1943 respectively. The hotel’s owners said they had not been aware of their relatives’ membership.

Right, so that's settled then. They were Nazis. The reviewer called them Nazis. It's no longer a question of libel. Except that somehow it still is.

The court presiding over the case issued an injunction. Not because of the Nazis being called Nazis but because of something the court decided the reviewer said, even though there's really nothing in the review but a statement of (apparently unprotected) opinion.

The Innsbruck court nonetheless took the unusual step in July of granting the hotel a preliminary injunction against K, arguing that his review had also implied that the hotel owner shared or sympathised with National Socialist ideas.

But this is what the reviewer actually said:

This made us wonder what the hotel owners are trying to tell us with this image. This incident speaks volumes about the current state of affairs in this region of Austria.

That's speculation. It's not flattering speculation but it isn't -- or at least it shouldn't be -- libel. But that's the initial conclusion the court has reached. Why? Because in Austria, the owners' interest in "protecting their reputation" is more important than hotel guests expressing their opinions.

I'm not sure what the Austrian expression for "fucked up" is, but that's what this is: libel that never happened based on factual assertions that somehow have managed to keep a disgruntled reviewer tied up in court.



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[l] at 9/17/19 11:40am

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[l] at 9/17/19 10:39am

The NY Times recently had a piece by Rob Walker noting that there is no tech backlash, despite many people believing there is one. Unfortunately, I think the article overstates its case, and misses the more important, more nuanced point. I do think that the public narrative -- driven by many in the media and many politicians and bureaucrats -- is that there's a giant "techlash" out there as people are fed up with how various tech companies act. I think that Walker's point is correct that the public is still using the big internet companies in larger and larger numbers. But I'm not sure it quite says what he seems to suggest it means.

But according to its most recent quarterly report, the number of Facebook accounts used daily (1.59 billion) and monthly (2.4 billion) each increased by 8 percent over the prior quarter. Despite all the anecdotes you’ve heard about people deleting their accounts, the company’s flagship app added about a million new daily users in the United States alone. Revenue was up 28 percent. Even factoring in the F.T.C. fine, Facebook recorded a profit of $2.6 billion.

Facebook is not the only demonized tech platform; social media companies in general are routinely criticized as toxic swamps full of trolls, liars and bots. But again, there’s no evidence of any exodus. In the same quarter, Twitter added five million new daily users, and Snap reported that the daily user base of its flagship Snapchat app grew 7 percent, its best-ever performance as a public company. According to the Pew Research Center, 72 percent of Americans use some form of social media, a percentage that has risen steadily for years and shows no sign of flagging.

Even as someone who thinks the whole "techlash" story is overblown and incredibly misleading, I don't think it's reasonable or accurate to say that the paragraphs above prove that there's no techlash. Indeed, it's not difficult for folks who really are out to get these companies to point to the above stats as evidence of a lack of competition, since if there was real competition, perhaps people would flock there instead. Similarly, those looking for greater regulatory oversight will quickly point out that if the "problem" they're addressing (as Senator Hawley seems to think...) is that these sites play games with our minds to addict us, well, their increasing usage just supports that narrative, and is even more evidence (in their minds) of the need for regulation.

What would be a lot more interesting to explore -- and what is not explored in the article at all -- is whether or not the average user of these platforms actually enjoys it, or if they feel compelled to use these services. Why are these services continuing to grow? Is it because they actually do provide value to the millions or billions of users they have -- or for more nefarious reasons? None of that is answered in the pure statistical dump of this article.

My hunch -- and it is a hunch -- is that most people are somewhere in between all of this. Tons of people actually do enjoy the value and benefits we get from these tech companies. The ability to find almost any kind of information we want, or nearly any product we want, and to stay in touch with friends and family (and make new friends) all over the globe -- all with a click of a button. That's all amazing in so many different ways. And it's the kind of thing we shouldn't lose sight of.

However, there's nothing contradictory in recognizing that, wanting to continue to use that while simultaneously, being concerned about the potential negative impacts that come from all of this, or that are the result of certain companies having too dominant a position. There's nothing contradictory about being concerned about the privacy implications of all of this while simultaneously using these products and giving up some of your private information. As I've explained dozens of times now, privacy is a tradeoff, and the cost/benefit calculation can change over time, especially as more information is known.

In the end, I still believe that the techlash is overblown and overstated, often by people with dubious motives. But that doesn't mean there aren't real concerns that should be considered, discussed and addressed. Brushing it off by saying "oh, but people keep using it!" doesn't do any of that. Indeed, it sort of makes a mockery of the concerns that are real, and that doesn't help anyone. And, worse, even if the public doesn't care, the fact that it's a driving narrative for media and politicians means that it's going to matter one way or the other as more legislative "solutions" come down.



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[l] at 9/17/19 7:49am

Well. This is awkward. Congressional oversight of our intelligence agencies is actually being performed by the overseers. The House Intelligence Committee -- or at least Rep. Adam Schiff -- wants to know what's being withheld by the Office of the Director of National Intelligence.

Something fucked up has happened and the ODNI doesn't want to talk about it. What "it" is remains unknown, but it's apparently damaging enough the Intelligence Community is blowing off its obligations to its oversight.

“A month ago, a whistleblower within the intelligence community lawfully filed a complaint regarding a serious or flagrant problem, abuse, violation of law, or deficiency within the responsibility or authority of the Director of National Intelligence. The Inspector General of the Intelligence Community found that complaint not only credible, but urgent. More than ten days since the Director was obligated to transmit the complaint to the intelligence committees, the Committee has still not received the disclosure from the Director, in violation of the law.

“A Director of National Intelligence has never prevented a properly submitted whistleblower complaint that the IC IG determined to be credible and urgent from being provided to the congressional intelligence committees. Never. This raises serious concerns about whether White House, Department of Justice or other executive branch officials are trying to prevent a legitimate whistleblower complaint from reaching its intended recipient, the Congress, in order to cover up serious misconduct."

Given the ONDI's refusal to cooperate and Schiff's angry letter, it's probably safe to assume this whistleblowing involves domestic surveillance and another abuse of the NSA's powers. If it was just some "inadvertent" collection of phone records or someone blowing tax dollars by pretending to telecommute, this would have been handed over to the HIC. But this one has been denoted as being of "urgent concern," which suggests an abuse of collection authorities.

Not for nothing do whistleblowers take the next flight to Hong Kong. Going through the proper channels just gets complaints buried and possibly separates the whistleblower from their source of income. This one went through the proper channels. And the proper channels extended a wordless middle finger to Congressional oversight in response.

The ODNI claims it has no obligations to its oversight.

On September 13, 2019, the Committee received a letter from the ODNI declining the Chairman’s request and stating that the DNI, contrary to an unambiguous statutory command, is withholding the complaint from the Committee because, in part, it involves confidentially and potentially privileged communications by persons outside the Intelligence Community.

Wrong! That's not how this works. Intelligence oversight committee members are "read in." They're allowed to check this stuff out. That's why they hold closed-door sessions and invoke national security concerns when pressed by the public to be a bit more forthcoming about the IC's activities. If the ODNI considers its work to be too "sensitive" for its oversight, we have a problem. I mean, we already have problems, but now the ODNI has placed itself outside the control of the government that created it. If it can reject this demand, it can reject any form of control at all. We don't need the ODNI to be a law unto itself.

Here's the kicker: given the ODNI's recalcitrance, the Intelligence Committee is drawing some very concerning conclusions about the nature of the withheld report.

The Committee can only conclude, based on this remarkable confluence of factors, that the serious misconduct at issue involves the President of the United States and/or other senior White House or Administration officials. This raises grave concerns that your office, together with the Department of Justice and possibly the White House, are engaged in an unlawful effort to protect the President and conceal from the Committee information related to his possible “serious or flagrant” misconduct, abuse of power, or violation of law.    

Fantastic. If true, the Administration is weaponizing the Intelligence Community. And someone on the inside is "urgently concerned." If it is the Administration, it can try to Executive Order its way out of this mess. But if it does, this branch is compromised. I mean, more so. That's bad news for America and Americans. And yet another reminder that, when it comes to whistleblowing, the "proper channels" are for silencing concerned employees rather than holding our public servants accountable.



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[l] at 9/17/19 4:45am

A new community broadband network went live in Fort Collins, Colorado recently offering locals there gigabit fiber speeds for $60 a month with no caps, restrictions, or hidden fees. The network launch comes years after telecom giants like Comcast worked tirelessly to crush the effort. Voters approved the effort as part of a November 2017 ballot initiative, despite the telecom industry spending nearly $1 million on misleading ads to try and derail the effort. A study (pdf) by the Institute for Local Reliance estimated that actual competition in the town was likely to cost Comcast between $5.4 million and $22.8 million each year.

Unlike private operations, the Fort Collins Connexion network pledges to adhere to net neutrality. The folks behind the network told Ars Technica the goal is to offer faster broadband to the lion's share of the city within the next few years:

"The initial number of homes we're targeting this week is 20-30. We will notify new homes weekly, slowly ramping up in volume," Connexion spokesperson Erin Shanley told Ars. While Connexion's fiber lines currently pass just a small percentage of the city's homes and businesses, Shanley said the city's plan is to build out to the city limits within two or three years.

"Ideally we will capture more than 50% of the market share, similar to Longmont," another Colorado city that built its own network, Shanley said. Beta testers at seven homes are already using the Fort Collins service, and the plan is to start notifying potential customers about service availability today.

The telecom sector simply loves trying to insist that community-run broadband is an inevitable taxpayer boondoggle. But such efforts are just like any other proposal and depend greatly on the quality of the business plan. And the industry likes to ignore the fact that such efforts would not be happening in the first place if American consumers weren't outraged by the high prices, slow speeds, and terrible customer service the industry is known for. All symptoms of the limited competition industry apologists are usually very quick to pretend aren't real problems (because when quarterly returns are all that matter to you, they aren't).

For years we've noted how large ISPs like Comcast quite literally write and buy protectionist state laws preventing towns and cities from building their own broadband networks (or striking public/private partnerships). These ISPs don't want to spend money to improve or expand service into lower ROI areas, but they don't want towns and cities to either -- since many of these networks operate on an open access model encouraging a little something known as competition. As such it's much cheaper to buy a state law and a lawmaker who'll support it -- than to actually try and give a damn.

And while roughly nineteen states have passed such laws, Colorado's SB 152, co-crafted by Comcast and Centurylink in 2005, was notably unique in that it let local towns and cities hold local referendums on whether they'd like to ignore it. And over the last few years, an overwhelming number of Colorado towns and cities have voted to do so, preferring to decide local infrastructure issues for themselves instead of having lobbyists for Comcast dictate what they can or can't do in their own communities, with their own tax dollars.

There's probably not a day that goes by without these companies regretting letting that caveat make it into the final bill.



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[l] at 9/16/19 9:12pm

Roughly a year ago, Nintendo launched a war between itself and ROM sites. Despite the insanely profitable NES Classic retro-console, the company decided that ROM sites, which until recently almost single-handedly preserved a great deal of console gaming history, need to be slayed. Nintendo extracted huge settlements out of some of the sites, which led to most others shutting down voluntarily. While this was probably always Nintendo's strategy, some sites decided to stare down the company's legal threats and continue on.

One of those sites was RomUniverse, which not only refused to shut down, but essentially boasted that it wasn't scared of Nintendo's legal attack dogs and would continue on. That stance is about to be put to the test, however, as Nintendo has filed a copyright lawsuit seeking enormous damages against the site.

In a complaint filed at a federal court in California, the Japanese gaming giant accuses the site’s alleged operator, Matthew Storman, of “brazen” and “mass-scale” copyright and trademark infringement.

“The Website is among the most visited and notorious online hubs for pirated Nintendo video games. Through the Website, Defendants reproduce, distribute, monetize, and offer for download thousands of unauthorized copies of Nintendo’s video games,” the complaint reads.

Nintendo states that the site, which has 375,000 members, offers downloads for nearly every video game system it has ever produced.

Now, to be clear, there is nuance to our stance here. Does this constitute copyright infringement of Nintendo's property? Hell yes. Can Nintendo sue over this on solid legal grounds? Of course! Should it do so? Well, that's a more complicated question. You have to wonder just exactly what Nintendo is going to get out of all of these lawsuits. Yes, it may succeed in shutting down this and other sites. But does that mean those that use ROM sites are suddenly going to buy a Nintendo console, retro or otherwise? It's not obvious that the answer to that is "yes." Instead, those pirates will probably just not play Nintendo games at all. Or, more likely, will find another venue for ROMs, and rinse and repeat that process as Nintendo goes on its whac-a-mole expedition.

And, given that Nintendo only recently really invested in making retro games available on its consoles, these sites actually did preserve gaming history for millions of people who would otherwise have never played these aged titles. Not to mention that ROM sites are also a place for home-brewed games on these older consoles, which themselves are not infringing.

And, finally, if Nintendo really just wanted to combat piracy in all of this, why not at least start with the DMCA process?

RomAdmin from RomUniverse informed us that he hasn’t received anything from Nintendo, no recent takedown notices either. The site does respond to takedown notices.

“We’ve always immediately taken down questionable material, per their take down notices,” RomAdmin told TorrentFreak.

Instead, Nintendo went straight to the nuclear option, with a lawsuit asking for potentially over $100 million in damages. Again, it can do this, but given how much money the company is already raking in off of retro gaming... why?



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[l] at 9/16/19 4:27pm

Moviepass is no more. The company's all you can eat movie ticket business model never worked as advertised, and a letter to subscribers informed them that the service would be shutting down over the weekend. Users are supposed to be getting refunds without having to ask for them.

MoviePass initially seemed like it might be a plausible idea, though in recent months the company has been exposed for being aggressively terrible at this whole business thing. The service initially let movie buffs pay $30 a month in exchange for unlimited movie tickets at participating theaters, provided they signed up for a full year of service. But it wasn't long before the company began hemorrhaging cash, something made immeasurably worse when it dropped its price point to $10 a month as part of a last ditch attempt to spur growth.

A bombshell Business Insider expose offered a stunning look at the company's dysfunction, and executives' interest in focusing on flashy marketing instead of fundamental business basics. Particularly entertaining was the fact that as things began to fall apart, company CEO Mitch Lowe thought it would be a good idea to arbitrarily change the passwords of heavy users so they couldn't actually use the service as advertised:

"Lowe dreaded the company's power users, those high-volume MoviePass customers who were taking advantage of the low monthly price, constantly going to the movies, and effectively cleaning the company out. According to the Motion Picture Association of America, the average moviegoer goes to the movies five times a year. The power users would go to the movies every day.

"Before Mitch came on it was, 'How do we slow down those users?'" one former employee said. "With Mitch it was just, 'F--- those guys.'"

Per Lowe's orders, MoviePass began limiting subscriber access ahead of the April release of the highly anticipated "Avengers: Infinity War," according to multiple former employees. They said Lowe ordered that the passwords of a small percentage of power users be changed, preventing them from logging onto the app and ordering tickets."

With that kind of "leadership," it's probably not too surprising that the effort fell apart. Granted the idea itself wasn't terrible, and individual movie chains have since adopted it with some fairly decent success, something acknowledged in the goodbye letter to company subscribers:

"We still deeply believe in the need for the MoviePass™ service in the marketplace, to maintain affordable access to theaters and provide movie lovers with choices of where to go to the movies. In August 2017, MoviePass™ began a transformation of the moviegoing industry by introducing its low monthly price subscription service. Since then, others in the industry have followed our lead. Now, as a result of this transformation, movie lovers throughout the United States have the ability to see movies in theaters using subscription services at prices they can actually afford, albeit with limited choices of theaters using those services."

SEC filings indicated that the company's net loss ballooned from $7.4 million in 2016 to $150.8 million in 2017, in no small part thanks to the $10 Hail Mary price hike attempted by the outfit. And while the company says it has formed a new strategic review committee to explore “strategic and financial alternatives” for the company, that likely means a bargain basement fire sale of the company's remaining assets in short order. There's also still that ongoing NY AG probe into allegations that the company misled investors as to the sorry state of the company's financials.



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[l] at 9/16/19 2:30pm

The US Patent and Trademark Office's side venture into immigration enforcement has come to an abrupt end. It recently instituted a US attorney requirement for foreigners filing trademark applications with the Office. This was apparently done to limit the flow of bogus trademark applications, a large number of which originated in China.

This wasn't the problem. The problem was that the USPTO started requiring examiners to verify the immigration status of non-US citizens applying for trademarks. It was no longer enough to provide some form of address verification, like a utility bill. The USPTO was now demanding proof of permanent residence, which would limit applications by non-US citizens living in this country to green card holders.

Notably, the USPTO does not require applicants to be legal residents of the United States. And only recently did it even require applicants from foreign countries to retain a US attorney for filing.

After receiving a bit of backlash for branching out into immigration enforcement, the USPTO is backing down on its demands for green cards. Paul Singer of WGBH (who broke the original story) has more details on the rollback.

Friday morning, the trademark office scrapped the guidance and issued new instructions that dropped any reference to immigration status. The new guidelines to staff say only that an applicant may be asked to provide proof of residence at the U.S. address, such as a lease or a utility bill.

The new instructions also remove provisions that would have required foreign applicants declaring U.S. addresses to provide proof of legal status even if they had obtained a U.S. trademark attorney. The change makes it clear that proof of address is only needed in cases where the applicant does not have a U.S. attorney.

This walk-back indicates the USPTO was looking to be in the immigration business but had trouble getting examiners to buy in on the new focus. If it was a wholly legitimate directive, there'd be no reason to alter it so soon after its enactment. Now that this directive has been clarified, examiners can go back to doing their actual job -- fielding ridiculous trademark applications -- and stop worrying about whether they're going to have to start sharing cubicle space with ICE officers.



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[l] at 9/16/19 1:03pm

Last time we wrote about Billy Mitchell -- a man who appears to be famous for playing video games and pissing people off -- he was losing his legal fight against Cartoon Network for having a character that was a parody of Mitchell named Garrett Bobby Ferguson on its "Regular Show." The court was not impressed.

The GBF character resembles Plaintiff because both have long black hair and a beard. GBF also has a similar backstory to Plaintiff’s portrayal in The King of Kong, in that both held records at video games, and both are portrayed as arrogant yet successful, beloved by fans, and willing to go to great lengths to maintain their titles. But while GBF may be a less-than-subtle evocation of Plaintiff, GBF is not a literal representation of him. The television character does not match the Plaintiff in appearance: GBF appears as a non-human creature, a giant floating head with no body from outer space, while Plaintiff is a human being. Nor does GBF’s story exactly track Plaintiff’s biographical details. GBF holds the universe record at Broken Bonez; Plaintiff held the world record at Donkey Kong. GBF attempts to maintain his universe record through crying and lying about his backstory; Plaintiff maintained his world record by questioning his opponent’s equipment and the authenticity of his submission of a filmed high score. Plaintiff himself acknowledges that GBF is not a literal representation of him when he states that “[t]he actions of this character . . . make me look like some sort of monster, or creature, with no heart or decency. This is simply not me.”

The court also noted that, unlike Mitchell, when Ferguson lost his video game record "the character literally explodes, unlike Plaintiff." So there's that.

Apparently, in early 2018, there was a big controversy when Twin Galaxies, who tracks video game records (including for the Guinness Book of World Records), stripped Mitchell of his various records after claiming that an investigation showed evidence that Mitchell did not follow the rules. The Guinness folks later removed Mitchell's records as well, and later included Mitchell in a section called "The Records That Never Were":

Now, a year and a half later, Mitchell had a law firm send a threat letter to both Guinness and Twin Galaxies, demanding a retraction. There's also the, um, 156-page "evidence pack." Notably, despite the legal threat letter demanding a "retraction" for "their defamatory statements made against him," nowhere in the letter does it lay out which specific statements are actually defamatory. That's kind of a key thing that you're supposed to do if you have a legitimate claim of defamation. What actual statements the letter does mention don't seem to come close to the standard for defamation. Instead, Mitchell's lawyers are nitpicking about Guinness' specific word choice. For example:

Notably, Guinness World Records then published its 2019 Gamer’s Edition Book (see Figure 1). Titled “THE RECORDS THAT NEVER WERE,” Guinness World Records specifically cites the disqualification of Billy Mitchell’s “highest score on PAC-Man and the first perfect score on PAC-Man.” Following that, Guinness stated that Mitchell’s “submitted scores were obtained while using MAME.” In this statement, not only did Guinness World Records assert that Mitchell’s records, specifically his Pac-man records, “NEVER WERE,” but its use of the generalized phrase, “submitted scores,” also asserted that all his achievements were obtained while using MAME. These statements are factually false.

Defamation has to be pretty specific. Merely using a "generalized phrase" that might imply a conclusion that is different than what you want is not defamatory. The letter also demands that every record Mitchell had be restored, and insists that only partially restoring the scores won't be enough to avoid litigation:

This request for retraction is for all of Billy Mitchell’s records; a partial retraction will not suffice. Both Twin Galaxies and Guinness World Records must retract their claims impugning Mitchell's scores publicly, so the damages done to him will finally begin to reverse. There was a press release against Billy Mitchell, and there must be a reciprocal release in his favor.

Each corporation has a 14-day deadline to review the information and issue the retraction, or we will resort to legal recourse, our final option.

But, uh, not giving you a world record is not defamatory. What would they be suing over? I don't see what kind of legal claim there might be. There are also at least some questions about the statute of limitation. The Guinness World Record people are based in NY. The Twin Galaxies boss appears to be in California -- both of which have a 1-year statute of limitations for defamation. Of course, it's possible that he could file elsewhere with a longer statute of limitations. Either way, it's difficult to see what's defamatory here, or what the actual legal claims are. We'll wait and see what is said in response and if any litigation is actually filed.



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[l] at 9/16/19 11:44am

Earlier this spring, the Ninth Circuit Appeals Court basically said it's okay for cops to steal property from citizens. This isn't because stealing is okay. It isn't. It's illegal. It's that stealing someone's possessions after they've been seized with a warrant doesn't violate the Constitution.

In this case, officers, who were engaged in an illegal gambling investigation, raided a couple's home, walking away with far more property than they officially said they did:

Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from the properties. Appellants allege, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants claim that the City Officers stole the difference between the amount listed on the inventory sheet and the amount that was actually seized from the properties.

Despite it being apparently obvious that being illegally stripped of personal possessions would interfere with a person's direct interest in the property they no longer have, the court extended qualified immunity to the officers. It reasoned that theft, while illegal, isn't unconstitutional, even when it's the government stealing from citizens.

The panel determined that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant.

The Ninth Circuit then withdrew this opinion, suggesting it may have had second thoughts about allowing officers to engage in theft so long as they have a warrant. It needn't have bothered. The superseding opinion [PDF] changes nothing. It points out that only one other circuit has reached the conclusion that theft by law enforcement officers violates the Constitution, but that opinion was unpublished, which means it simply doesn't count.

Since there's no precedent out there in the federal court system, the Ninth isn't going to go out of its way to create some.

We have never addressed whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment. The only circuit that has addressed that question—the Fourth Circuit—concluded in an unpublished decision that it does. See Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th Cir. 2004).

Not addressing it now means having to write ridiculous paragraphs like this in order to prevent officers from being sued for stealing stuff during searches.

We recognize that the allegation of any theft by police officers—most certainly the theft of over $225,000—is deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, would not “be ‘clear to a reasonable officer.’”

I'm pretty sure the officers knew it was wrong to steal. It's a thing pretty much everyone knows. That they wouldn't have been "on notice" that it violated the Constitution seems almost beside the point. But since the officers raised a qualified immunity defense, we're left with this absurd outcome.

Appellants have failed to show that it was clearly established that the City Officers’ alleged conduct violated the Fourth Amendment. Accordingly, we hold that the City Officers are protected by qualified immunity against Appellants’ Fourth Amendment claim.

The court recognizes what it's doing. But it claims to be bound by [checks notes] lack of precedent, which makes this footnote's recognition of the obvious especially meaningless.

Importantly, we observe that the technical legal question of whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment is a different question from whether theft is morally wrong. We recognize that theft is morally wrong, and acknowledge that virtually every human society teaches that theft generally is morally wrong. That principle does not, however, answer the legal question presented in this case.

Unfortunately, this closing statement is still true.

Not all conduct that is improper or morally wrong, however, violates the Constitution.

But when the conduct involves government employees illegally depriving people of their belongings, it would seem to violate the right to be free from unreasonable searches and seizures. The search may be protected by a valid warrant, but making off with property that isn't targeted (or even present on the inventory sheet) sure sounds like an unreasonable seizure.



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[l] at 9/16/19 11:39am

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[l] at 9/16/19 10:34am

FOSTA was sold to Congress and the public as a way to "protect women," who (we were told) were being sex trafficked because of a "loophole" in the law. As we warned over and over again at the time, FOSTA would actually put women at even greater risk, and that has been supported by nearly all of the evidence we've seen to date. Beyond the fact that the number of women who are actually victims of sex trafficking has been greatly exaggerated or completely made up to the point of ridiculousness, so far there have been multiple reports showing that the actual impact of FOSTA was to increase sex trafficking by putting sex workers at much greater risk, driving them into the greedy arms of traffickers who promise protection. This has resulted in more women dead and even police admitting that the law has made it more difficult for them to catch traffickers.

That's pretty much exactly what many of us predicted before the law was passed, but Congress likes to pass laws and then forget about ever bothering to check whether or not the law did what it promised. So it's interesting to note that Rep. Ro Khanna is apparently planning to introduce a bill to study the actual impact of FOSTA, specifically on sex workers. This was buried in an article about Kate D'Adamo, a lobbyist representing the interests of sex workers on Capitol Hill.

“She is one of the most vocal and effective advocates on this issue,” said Rep. Ro Khanna of California’s Silicon Valley, who plans to introduce the bill in the next several weeks to study SESTA-FOSTA’s impacts after being approached by D’Adamo and her fellow activists.

“She’s really, I think, driving the conversation about the humanity of sex workers and the vulnerability of sex workers,” he said.

The measure, which has yet to be finalized, would call on the Department of Health and Human Services and the National Institutes of Health to study the fallout of SESTA-FOSTA.

[....]

The extent to which SESTA-FOSTA succeeded in its stated goal of shutting down sex traffickers is unclear, but Khanna said anecdotes have flooded in that the measure has forced sex workers to walk strolls to meet clients, causing “more violence, more harm to the public.”

“It was a wrong vote,” said Khanna, who was one of just 12 Democrats to oppose SESTA-FOSTA. “We need to now study it and understand the consequences, which I don’t think Congress fully considered. I can’t see any reason for opposing the collection of data.

The article notes that, even as many in the public now support decriminalizing sex work, most politicians are scared of even revisiting FOSTA, afraid that it will be spun that they're interested in decrminalizing sex work -- even as FOSTA has often resulted in more sex workers on the streets in their districts.

In his meeting with D’Adamo, the aide explained that since SESTA-FOSTA passed, there’s been an uptick of sex work on the district’s streets, leading to more 911 calls from constituents. “That’s not to say that the Congress member wouldn’t vote in favor of this on the floor,” he explained. “The people in our district are just very religious. Because of the taboo behind sex work, the Congress member doesn’t want to scare away supporters.”

What really gets me about all of this is: where are all the vocal supporters of FOSTA who insisted it was necessary to protect women? Where are they now that so far the evidence suggests it's put more women at risk? Why have they all gone silent? Why aren't they vocally supporting Khanna's effort to study the impact of the law? It's almost as if (as we noted) this was never actually about protecting women at all.



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[l] at 9/16/19 7:30am

This wasn't how it was supposed to go for AT&T. In AT&T executives' heads, the 2015, $67 billion acquisition of DirecTV and the 2018 $86 billion acquisition of Time Warner were supposed to be the cornerstones of the company's efforts to dominate video and online video advertising. Instead, the megadeals made AT&T possibly one of the most heavily indebted companies in the world. To recoup that debt, AT&T has ramped up its efforts to nickel-and-dime users at every opportunity, from bogus new wireless fees to price hikes on both its streaming and traditional video services.

Not too surprisingly, these price hikes are now driving subscribers to the exits.

The company's latest earnings report indicates that AT&T not only lost another 778,000 "traditional" video subscribers last quarter (satellite TV, IPTV), but it lost another 168,000 subscribers at its DirecTV Now streaming service -- due to "higher prices and less promotional activity." While the stupidity of these efforts (not to mention AT&T's absurdly confusing TV branding) has been apparent to analysts and the press for a while, investors have also now started to criticize AT&T's "growth for growth's sake" mindset.

For example, "activist" (a generous term) investor Elliott Management recently conducted a detailed review of AT&T’s business management over the last decade and came away notably unimpressed. In a public letter to AT&T executives, the investor -- whose funds own around $3.2 billion in AT&T stock -- makes it pretty clear that AT&T's obsession with merging is not doing it any favors:

"AT&T has been an outlier in terms of its M&A strategy: Most companies today no longer seek to assemble conglomerates. This approach is more characteristic of a prior era, calling to mind the Conglomerate Boom of the 1960s or the Mike Armstrong years at the “old” AT&T. It also represents a departure from the approach articulated in 2007 by the Company’s Chairman and CEO at his first analyst day after being named to that position: “When there’s a temptation to want to launch off into areas that may not be closely tied to our strengths or which are going to distract us from an operational focus, that won’t happen."

We firmly believe that AT&T’s M&A strategy has not only contributed directly to its profound share price underperformance, but has also caused distractions that have contributed to the Company’s recent operational underperformance ."

Granted AT&T's merger mania has had a number of additional downsides investors probably actually support, like the billions in regulatory favors and tax breaks the company has received in recent years, only to pocket that money before laying off employees and skimping on network investment. Amusingly, Eliot's complaints excited the President, who was quick to use said complaints to bash his longstanding nemesis, CNN:

Great news that an activist investor is now involved with AT&T. As the owner of VERY LOW RATINGS @CNN, perhaps they will now put a stop to all of the Fake News emanating from its non-credible “anchors.” Also, I hear that, because of its bad ratings, it is losing a fortune.....

— Donald J. Trump (@realDonaldTrump) September 9, 2019

Granted somebody might want to inform Donald that despite a lot of whining about the news divisions of both AT&T/Time Warner and Comcast NBC Universal, his administration has doled out more regulatory favors and handouts to both companies than any administration in American history -- with little to nothing to really show for it.



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[l] at 9/16/19 4:23am

Is it good for governments to supplement their normal crowdfunding efforts (taxes) with something more voluntary? That's the question posed by this great Legally Weird post, which provides a number of examples of city governments asking citizens to dig a little deeper to pay for government things.

Whether or not they can is an unanswered legal question. No one appears to have challenged any of these efforts on policy grounds. Considering giving is completely voluntary, the efforts are usually harmless and underfunded. Whether or not they should engage in crowdfunding is a much more interesting question, although most answers will probably boil down to whether or not the person answering agrees with what the funds are being raised for.

Government crowdfunding efforts have been initiated to pay for park trash receptacles, to remove a Confederate statue, and to supply a public defenders' office with a much-needed cash infusion. Then there's the case that the Legally Weird post leads with.

The city of Bloomfield, New Mexico is asking citizens to pay its legal fees for it. The crowdfunding effort created by Brad Ellsworth, the city's finance officer, hopes to raise enough money to finish paying the $700,000 the city owes to the ACLU.

When we ask rhetorically why governments pursue highly-dubious litigation using public funds, this is the sort of thing we're talking about. The city came out on the losing end of a lawsuit filed by the ACLU on behalf of two Bloomfield Wiccans who disagreed with the city's placement of a Ten Commandments monument on the city hall lawn.

The city argued the separation of church and state was intact because the monument was paid for and created by private citizens. It even contained a disclaimer to that effect on the monument itself. The case eventually made its way to the Tenth Circuit Appeals Court, which found in favor of the ACLU. The court said that permanent monuments erected on city property are government speech, even if they're privately-funded.

The city countered the monument wasn't permanent. It said those providing the monuments needed to re-apply for prime city hall lawn position every 10 years. The court said there was no meaningful difference between ten years and permanent when the city placed no limit on renewals. The city petitioned the US Supreme Court, but the top court saw no reason to take up the case.

Fortunately, the city's residents didn't have to pay for this litigation. The Alliance Defending Freedom provided the city with pro bono legal services, saving taxpayers a considerable amount of money. But the city lost, and it now owes $700,000 to the ACLU.

Obviously, the city never prepared for this eventuality. The city has until 2021 to pay this debt off and has decided to make its first payment of $233,000 to the ACLU this year, using city budget funds. Its crowdfunding effort asks anyone -- city residents included -- to cough up the remaining $467,000. Its GoFundMe page contains a very self-serving statement that portrays the city as a fierce First Amendment warrior, rather than a participant in a project that violated the Establishment Clause of the Constitution.

In an effort to protect and defend private citizens' First Amendment rights, the City of Bloomfield opposed the ACLU's efforts to remove a former Ten Commandments historical monument from the front lawn at City Hall. The Ten Commandments historical monument sat alongside several historical monuments, including the Declaration of Independence, Bill of Rights, and the Gettysburg Address. With overwhelming public support, the City of Bloomfield opposed the ACLU's efforts by appealing all the way to the Supreme Court of the United States. Unfortunately, the District Court ruled in favor of the ACLU and the City of Bloomfield was ordered to remove the Ten Commandments historical monument, which has since been completed. The Ten Commandments historical monument now resides on property owned by the Bloomfield First Baptist Church.  

An unfortunate result of the City of Bloomfield seeking to defend its private citizens' First Amendment rights is that, because the City of Bloomfield lost the litigation, the City is required to reimburse the attorneys' fees and costs of the ACLU relating to the Ten Commandments litigation. The City owes $467,000.00 in attorneys' fees which must be paid by June 30, 2021. Given the overwhelming public support during the litigation, the City is reaching out to concerned citizens in an effort to help crowd fund the remaining balance owed in attorneys' fees. The City appreciates all of the support private citizens can offer.

To call the response "tepid" would be an insult to room-temperature tap water. More than two weeks into its campaign, the city has only managed to raise $1,775 -- 0.38% of its goal. Comments on the page suggest people aren't happy the city's attempt to stick citizens with the legal bill it racked up, especially after it apparently told residents this lawsuit wouldn't cost them a cent.

Sadly, the residents unwilling to donate to the city's crowdfunding effort will end up paying for this futile, stupid legal battle anyway. When this fails -- and it will -- the remaining balance will be paid off using tax dollars that definitely would be better spent on almost anything else.

Far too many municipalities are willing to use public funds to pursue dubious legal claims -- claims many residents likely don't support. And when they lose, that is added to the public's tab. Bloomfield's idiotic defense of Constitutional violations isn't an anomaly. The only thing that makes it stand out is its use of a crowdfunding platform to pay the legal bill. Otherwise, it's business as usual: the defense of unsupportable positions with the involuntary support of the public.



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[l] at 9/15/19 1:00pm

Our first place winner on the insightful side this week is That One Guy with a response to our post about the Houston police officer who is facing felony murder charges over a botched raid:

'What do you mean it didn't work this time?!'

Gerald Goines, the ex-Houston police officer who led the controversial no-knock raid on Harding Street, has been charged with two counts of felony murder, as KHOU 11 Investigates reporter Jeremy Rogalski first reported.

His attorney, Nicole DeBorde, said Goines was surprised by the charges.

Given how often a badge acts as a 'get out of personal responsibility'-free card for actions up to and including murder I bet they were surprised that they were actually facing potential consequences for their actions. Now, if the jury/judge will follow through and rightly nail them to the wall for killing two people that'll make things all the better.

However, Houston Police Chief Art Acevedo believes it's not a department wide problem.

"We've been looking at a lot of cases and we have yet to see it again, any evidence of any systemic issues," Acevedo said.

The only way I could see that possibly being true is if they are looking at literal cases, since last I checked most containers are lacking in the intelligence to commit crimes.

You do not get two cops falsifying reports based upon bogus reports by fictitious informants and supported by drugs that were pulled from a cop's car unless things are really rotten and they are very sure that they'll get away with it. If they were willing to do something that brazen it is almost literally impossible to believe that the rest of the department is squeaky clean, especially given what outside investigators have found and the fact that the department has had to be threatened with legal action to release information relating to the killer and his partner.

Given all that as the article notes if he's not finding anything he's not actually looking.

In second place, we've got Anonymous Anonymous Coward with some thoughts on the nature of property:

Yet another analogy...

I see property, and by that I mean real property (not limited to real estate) as having form, substance, and possibly function. Real property can be damaged by natural events such as hurricanes, fire, flood, hail, tornadoes, lightning, etc... Your copy of a book, sheet music, recording would be real property, the concepts expressed in those are not.

On the other hand, imaginary property cannot be damaged by natural events, like the song 'borrowed (I thought 'stolen' as a bit strong) by Wilma above', there was no actual loss to Betty, with the possible exception of attribution. The song itself is a bit ethereal, as it floats through the air, or even if it is written down or recorded. That is until we get to the monetization of imaginary property, which has since lead us to control, which then lead us to excessive control, and the mischaracterization of imaginary property as real property.

It is the monetization that brings us to the over protection, and lengthening protections, and rabid control, and the spread of such protections worldwide for the benefit of corporations rather than creators of imaginary property. The concept of having an idea and then living off it forever, or even getting rich off it is anathema to the original conception of imaginary property, at least in the United States...

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

Which only allows Congress to do something about imaginary property, but does not require it to do so.

I like the reforms mentioned in the article above, but would add some. Imaginary property cannot be transferred from the creator, but may be licensed, loaned, or contracted to another entity for some limited times for some consideration. By limited times we should look to the copyright clause that is in the Constitution and quoted above for guidance. If the purpose is truly to promote creativity, then any protection dies with the creator, and not just limitations created by law, which should also be short enough to encourage creators to continue creating.

For example the original 14 years for copyright (too long in my mind, seven would be better) with a purchased extension for another 14 (or7) years if it is considered economically feasible.

And for patents, the current ten year limit is OK, but new patents should not be issued for small tweaks to existing patents creating the concept of 'evergreening'. If a new idea is added to an existing patent, and that idea is worth it, it should be able to stand on its own without the underlying patent and be patentable by itself. Nor should patents be issued to anyone that is not in the process of bringing a product to market, and if, within a reasonable time, no product is produced the patent expires. The fact of not being able to transfer a patent should also help with the non-practicing entities (those without a product asserting imaginary patent rights).

These ideas should be taken into consideration along with those reforms mentioned in the article, and no, I am not claiming any imaginary rights to these ideas.

For editor's choice on the insightful side, we start out with bhull242 responding to the oft-repeated claim about gun violence that the solution lies in targeting the "few" mentally ill people:

“Few”? Those with diagnosed mental problems may be a minority, but they’re not that rare. Pretty much everyone in America has personally encountered someone with a mental illness.

Plus, there’s the question of where making 2A rights reasonable conflicts with 4A rights.

Also, please define “people who are known mentally unstable [sic]”. Not all mental illnesses are connected to violent behavior at all.

Then there’s the fact that statistics show that there is no significant correlation between mental illness and either gun violence in general or mass shootings specifically. One could argue that, by definition, anyone willing to kill a bunch of people must be mentally ill, but even setting aside that that would make every soldier who has been in active combat mentally ill, that doesn’t make them diagnosibly mentally ill, and it’s an entirely ad hoc definition which cannot be used to diagnose someone with a mental illness before a mass shooting, which makes it effectively worthless in this debate.

Finally, show me where Techdirt writers, specifically (not commenters), have been for “denying 2A rights for millions”. I’ve seen them questioning the scope and limitations of the 2A, recognizing the consequences that result, and being highly critical of many of the talking points used by pro-2A advocates—like blaming mental health issues, movies, and/or video games while completely ignoring any attempts at putting reasonable restrictions on gun ownership, like ammo limits, restrictions on the types of firearms permitted, better data on shooting incidents and who is restricted from possessing a firearm that are readily available to anyone who sells firearms or works for the government, restrictions on private sales, or banning certain accessories that make a firearm more deadly to larger numbers of people—whenever a mass shooting or talk of gun control pops up. I fail to see how any of that is denying 2A rights to anyone without reasonable due process.

It is possible to have a country with democracy, violent movies, violent video games, mentally ill people, and private gun ownership without mass shootings occurring multiple times a year. At least one developed nation does. We should look towards other developed nations that don’t have so many mass shootings but are considered democratic for ideas to fix our gun-violence problem. Not every idea is good, nor will every idea work here, but it’s worth looking into.

Next, we've got an anonymous comment about Australia's efforts to censor all footage of the Christchurch shooting:

Remember when we jeered at China

... over censoring anything related to Tianeman Square and the protests there some 30 years ago? How it was akin to "harmful sensation", "just letting people view this harms our society"?

It's taken 30 years, but Australia has finally stepped up to the challenge. Well done, Free World. Well done.

Over on the funny side, our first place winner is Toom1275 commenting on a post that sparked a lot of debate:

Where's the button to flag the article for trolling?

In second place, it's blademan9999 taking note of the rather broad language in a college's rules restricting students' freedom of expression:

"Any student parade, serenade, demonstration, rally, and/or other meeting or gathering for any purpose "

So if I'm understanding this right, you need 3 days notice to do things like go on a date, return a borrowed item or help someone else study, WTF!

For editor's choice on the funny side, we start with David neatly noting perhaps the most absurd result of Mississippi's rules about labeling vegan and vegetarian food:

So to make this clear:

With the previous law in action, you were only allowed to call something a "veggie burger" if it contained beef. Because of consumer confusion.

And finally, we've got a handy anonymous one-liner in response to the Federal Courts computer system losing months of job applications in a power outage:

nothing like having a good back up system and this is nothing like having a good back up system!

That's all for this week, folks!



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[l] at 9/14/19 1:00pm

Five Years Ago

This week in 2014, popular websites across the web participated in Internet Slowdown Day to demand net neutrality from the FCC — driving 1,000 calls per minute to Congress at some points, for a total of 300,000 calls plus 2-million emails and 700,000 FCC comments. It also spurred the big cable companies to waste their money on ads misleadingly pretending to support net neutrality themselves.

Also this week in 2014, a court ruling gave a big win for fair use and against "hot news", one cab company was extra-angry about Uber and labeled it a cyber-terrorist group, and newly released memos justifying warrantless wiretapping showed crazy levels of executive branch authority.

Ten Years Ago

This week in 2009, Hollywood was continuing its zealous war against Redbox by fearmongering about kids renting R-rated movies, the recording industry in Japan was working with the government on a plan to disable phones that are used to listen to pirated music, yet another DVD release of a classic TV show had to replace its music with new generic stuff due to licensing headaches, some ridiculous exaggeration was exposed in the UK's oft-repeated figure of 7-million file sharers, we got a look at the RIAA's copyright propaganda for schools, and there was yet another attempt to turn content into physical property with universal DRM. After all this, it was nice to read a judge eloquently explaining why copyright is not property... all the way back in 1773.

Fifteen Years Ago

This week in 2004, the war against spam continued as WiFi spammers got caught and a major spam ISP finally kicked off 148 spammers — but so did the counterattacks, with a lawsuit against the spam blacklist headed to court and everyone bracing for the incoming deluge of election spam, though there was hope that might not be as bad as expected. One strategy that definitely didn't make sense was combating spam by turning email into a walled garden.

Meanwhile, a university was trying to ban independent wifi networks with questionable authority, congress was moving forward with a draconian plan to criminalize file-sharing, and we saw the terrible appeals court ruling in Bridgeport v. Dimension that eliminated the de minimis defense for music sampling (even when the sample is completely unrecognizable) and issued the absurd edict "Get a license or do not sample. We do not see this as stifling creativity in any significant way."



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