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Feed Techdirt: This Week In Techdirt History: SOPA, China, Dajaz1 & The Hypocrisy Of Copyright (techdirt.com)

Five Years Ago

Today we're dedicating this post to another focused look at the events of this week in 2011, in the midst of the SOPA fight and some other important developments on the copyright and internet freedom fronts that highlighted the government's and the industry's hypocrisy on the issue.

Firstly, the backlash against SOPA/PIPA continued to grow. Anti-virus firm Kaspersky dumped its association with the BSA over the organization's support for SOPA, while the American Bar Association was having an internal fight over how to react to the bills; human rights groups and people with disabilities spoke up to point out how much SOPA could hurt them, constitutional scholars explained why it doesn't pass First Amendment scrutiny, a former White House technology advisor explained the disastrous effect it could have on privacy, and Paul Vixie declared that he would stand against the bills even though they'd probably help his business.

With all this backlash, how was SOPA still standing? For one thing, big media firms were donating plenty of money to the bill's sponsors, and spending plenty more buying astroturf support since the public overwhelmingly opposed them. And surprise, surprise: two congressional staffers who helped write SOPA got comfy industry lobbyist jobs. Plus, there were still plenty of nonsensical and/or hilarious arguments for the bill, and bizarre claims about being able to ignore its worst provisions. When Chinese internet users laughed at the US for considering its own Great Firewall, the MPAA boss shockingly upped the ante by holding China's successful censorship up as a shining example.

And that's where we begin to see the amazing hypocrisy inherent in SOPA, for that very same week Hillary Clinton was speaking out against internet censorship — something the State Dept. has always done alongside the government's ongoing attempts to regulate the internet domestically. And this was also the week that the details of the embarrassingly terrible Dajaz1 domain seizure came out, revealing that the government censored a blog for over a year for no good reason. The site deserved a huge apology, but ICE avoided admitting anything while the RIAA outright refused to apologize and stood by the seizure. Meanwhile, yet another website was in similar limbo: the court dismissed the case against Puerto 80 and Rojadirecta but refused to give back the domain, leaving the company to try to explain to everyone why the seizure was unconstitutional.

Oh and speaking of the RIAA? They were also nosing their way into the Righthaven fight, because I guess their reputation wasn't tarnished enough. And amidst that, just for fun, they also had the gall to claim they already solved the piracy problem years ago.

Give them an inch and they'll take a mile, then publish a press release demanding 10 and fund a "grassroots" organization that calls it half a million inches. Little has changed in five years, and as we approach yet another copyright reform fight, it's good to look back on SOPA and remember how stalwart we're going to have to be.



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Feed Techdirt: Court Tells Nursing Home Company That Law Firm's Ads Targeting It Are Not A Form Of Trademark Infringement (techdirt.com)

Eugene Volokh of the Volokh Conspiracy points to a recent Georgia Supreme Court decision [PDF] that lets trademark holders know that just because some use of their trademark is less than complimentary doesn't mean the use "tarnishes" the brand.

McHugh Fuller Law Group, using nursing home surveys published by the federal government, often seeks to gather litigants for class action suits against possibly-abusive nursing homes/employees. In this case, it decided PruittHealth-Moultrie's survey responses warranted further litigation. It published an ad seeking "suffering loved ones" who might be interested in suing the nursing home -- one that prominently used the nursing home's logo and name.

Naturally, PruittHealth felt this use of its trademark to be disparaging, as it hinted that the company was mistreating its residents. It sued for damages, claiming the law firm's use of its name and logo "diluted" the brand. But its argument had nothing to do with the normal sort of "dilution" often claimed in court. PruittHealth didn't feel potential customers would be misled, but rather that its use in this form took the PruittHealth name down a notch or two.

At issue in this case is tarnishment, which OCGA 10-1-451 (b) describes as “subsequent use by another of the same or any similar trademark, trade name, label, or form of advertisement” adopted and used by a person, association, or union “if there exists a likelihood of injury to business reputation of the prior user, notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services.” This theory of liability “has had some success when defendant has used plaintiff’s mark as a mark for clearly unwholesome or degrading goods or services.”

PruittHealth testified that it began receiving calls from concerned customers about the patients in its care as a result of the ad. McHugh Fuller testified that it had received 200 queries, resulting in 11 filed lawsuits -- not necessarily a rebuttal of PruittHealth's "likelihood of injury" claims.

The Supreme Court, reversing the state appeals court decision, points out that things that may result in damage to trademark holders are not always "tarnishing" under Georgia state law.

However, not every unwelcome use of one’s trademark in the advertising of another provides a basis for a tarnishment claim. See 6 Callman 22:19. Tarnishment can occur “only if the defendant uses the designation as its own trademark for its own goods or services.”

[...]

Here, McHugh Fuller was advertising its legal services to individuals who suspect that their loved ones have been harmed by negligent or abusive nursing home services at a specific PruittHealth nursing home. The ad used PruittHealth’s marks in a descriptive manner to identify the specific PruittHealth facility; indeed, McHugh Fuller was counting on the public to identify PruittHealth-Moultrie by the PruittHealth marks used in the ad. The ad did not attempt to link PruittHealth’s marks directly to McHugh Fuller’s own goods or services. McHugh Fuller was advertising what it sells – legal services, which are neither unwholesome nor degrading – under its own trade name, service mark, and logo, each of which appears in the challenged ad. No one reading the ad reproduced above would think that McHugh Fuller was doing anything other than identifying a health care facility that the law firm was willing to sue over its treatment of patients. In short, the ad very clearly was an ad for a law firm and nothing more.

PruittHealth may not have liked what the advertising insinuated (and, indeed, fielded concerned phone calls because of the advertising) but that alone is not enough to bring claims of trademark tarnishment. Advertising is full of unfavorable insinuations and unflattering comparisons, and this law firm's litigant fishing expedition is no different than ads claiming Corporation X's service is less than spectacular while using Corporation X's trademark in the ad copy.

Contrary to PruittHealth’s assertion in the trial court, trademark law does not impose a blanket prohibition on referencing a trademarked name in advertising. “Indeed, it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference, or any other purpose without using the mark.”

PruittHealth's idea of how trademark law should be enforced goes far beyond expanding Georgia's trademark tarnishment law. It rubs right up against speech protected by the federal government.

Moreover, interpreting OCGA 10-1- 451 (b) expansively to prohibit the use of PruittHealth’s marks to identify its facilities and services in any way, as the company urges, would raise profound First Amendment issues. [...] “Much useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company or product by using its trademark.” New Kids on the Block, 971 F2d at 307.

This isn't one of the more egregious examples of using IP protections to shut people up that we've seen. But the end result of PruittHealth's lawsuit -- had the appeals court's decision been allowed to stand -- would have been indistinguishable from the more hamfisted bullying efforts detailed at Techdirt over the years.



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Feed Techdirt: Russia Accuses EA Of LGBT Propaganda Over Including Rainbow Shoelaces Soccer Players Wore In Real Life (techdirt.com)

As you will recall, in 2013 Russia instituted a delightfully obtuse piece of legislation that made it illegal to disseminate "propaganda" within the country that centered around "non-traditional sexual relationships." This law, designed essentially to both push the LBGT community back into the closet and to effectively criminalize being too gay in public, has butted heads with modernity several times now. The silver lining in this is that the law's practical application has forced its supporters to publicly display exactly how petty and silly they are, as powerful legislators attempt to take action against such virile threats as emojis. Coupled with the Russian governments worry that American streaming media might be a form of HAARP-style mind-control, not to mention the government's willingness to show the world how its vaguely-crafted legislation can be used purely to silence dissenting speech, Russian officials have painted quite a picture of the country's lack of a commitment to basic freedoms.

But where slapping around dissenting political speech is par for the authoritarian course, the laser focus the Russian government has on our LGBT brothers and sisters is confounding. That bigotry exists is not news, but Russia's dedication to it from a legislative perspective reeks of distraction-farming. And, as said previously, it can reach really silly levels, such as members of the Russian government calling on a ban of EA Sports' FIFA17 game, purely because the game includes the option to have players wear rainbow shoelaces, as their real-life counterparts did.

Communist MPs sent a letter to the communications oversight and state consumer protection agencies complaining that the popular EA Sports football game, which is rated all ages, “invites users to support the English football premier league’s Rainbow Laces action, a massive campaign in support of LGBT”, Izvestia newspaper reported.

United Russia MP Irina Rodnina, a former figure skater who won three Olympic gold medals for the Soviet Union, told Izvestia that the authorities needed to “verify the possibility of distributing this game on the territory of the Russian Federation”.

We should congratulate our Russian friends on being first to market on this kind of bigotry. After all, the game is also available in Saudi Arabia, a country not known for its liberal policies on homosexuality, yet Russia beat them to the punch. That's quite a feat for the homophobic.

But this is what you get with authoritarian regimes that play in the world of social policies. There are far worse applications of Russia's anti-gay law that one can reference, but there is value of spotlighting the otherwise hilarious absurdity of the federal government of a nuclear power campaigning against a video game over rainbow shoelaces. Anyone who might have thought that this law had important work to do within Russia cannot possibly still think that there isn't overreach.



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Feed Techdirt: US Government Gives $11,000 Back To College Student Three Years After The DEA Took It From Him (techdirt.com)

Another high-profile asset forfeiture battle has resulted in the government relinquishing its claim on seized cash and returning it to its owner.

In February 2014, DEA agents took $11,000 from Charles Clarke at the Cincinnati/Northern Kentucky International Airport. The DEA claimed Clarke's luggage "smelled" like marijuana. It may have been right (Clarke was a recreational marijuana smoker), but it didn't even bother to get a second opinion from a drug dog. Nor did it find any drugs or paraphernalia when it searched Clarke and his baggage.

It did, however, declare the $11,000 in college funds Clarke had saved over five years to be drug money. So, it took the cash from him and sent him on his way.

Normally, the burden of proof falls on the person whose property has been taken. That's how civil asset forfeiture works. The government files a claim against the seized property, cutting the original owner of the property out of the loop as much as possible. Fortunately, the judge presiding over the forfeiture dispute shifted the burden back on law enforcement after finding Clarke to be a credible complainant.

"Frankly, the fella sounds like he's telling the truth," U.S. District Court Judge William O. Bertelsman said in a hearing over how much information the U.S. government should be required to turn over to Clarke's lawyers. "He's not changed his story once in all the depositions and testimony that he's given even under the threat of perjury."

Bertelsman also ordered the government to show proof that the seized money was the result of criminal activity. This was obviously going to be a problem for the government, considering all it had to work with was some luggage that carried a hint of marijuana odor. That, and Clarke's cash, which it was in no hurry to give up, especially since it had to split the take thirteen ways.

While no further details have been released, it's probably safe to assume the government never came up with the proof Bertelsman was looking for. The Institute for Justice -- which represented Clarke in this case -- is reporting that the government is returning the seized cash to the college student.

“The United States government has agreed to give Charles Clarke back every penny of the $11,000 it seized from him at the Cincinnati/Northern Kentucky International Airport in February 2014, plus interest. Charles is very pleased that he will get his life savings back and that the whole ordeal is now behind him.”

All it would take to combat many questionable seizures would be a shift in the burden of proof. The process makes it almost impossible for those whose property has been seized to mount a successful attempt to reclaim it. The filing of cases as "Gov't v. Property" allows the seizing agency to run unopposed (as it were), since the seized property can't speak for itself and the property owner is tied up in bureaucratic paperwork with strict time limits that is wholly reliant on the seizing agency properly notifying seizure victims of the whereabouts of their cash, etc.

If the government can't come up with criminal charges, it very likely cannot come up with proof the money is tied to illegal activity. But too few courts are willing to shift the burden of proof, leaving the government to indulge in its perverted incentives.



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Feed Techdirt: President Obama Orders Intel Agencies To Produce Report On Russian Election Influence (techdirt.com)

We just recently wrote about Senators on the Intelligence Committee requesting that President Obama declassify information about the Russians' activities in trying to influence the last election. While much of "the Russians did it!" chatter that's been going around has felt exaggerated, the real issue is that so little actual evidence has been presented one way or the other. It would be good to actually reveal publicly what has happened, if anything. Now comes the news that President Obama has, at least, asked the intelligence agencies to compile a report on the evidence:

President Obama has ordered American intelligence agencies to produce a full report on Russian efforts to influence the 2016 presidential election, his homeland security adviser said on Friday. He also directed them to develop a list of “lessons learned” from the broad campaign the United States has accused Russia of carrying out to steal emails, publish their contents and probe the vote-counting system.

“We may have crossed a new threshold here,” Lisa Monaco, one of Mr. Obama’s closest aides and the former head of the national security division of the Justice Department, told reporters Friday. “He expects to receive this report before he leaves office.”
Receiving the report before he leaves office is one thing. Declassifying it and releasing it to the public is another. Hopefully he is willing to do both. Of course, the article notes that some agencies, such as the FBI, consider it an "active investigation" and thus are not happy about the idea of revealing anything publicly. Of course, without revealing the evidence -- one way or the other -- it just leads to greater speculation and conspiracy theories. And even just a report summarizing the findings will be kind of useless as well. Remember, we've already had the administration accuse Russia of hacking in relation to the election -- but without providing any actual evidence to back it up. And, again, that has resulted in people not being willing to trust the claim.

Given all that, it seems the most logical response should be to get this report and then to declassify it as soon as possible. Unfortunately, there's little in the Obama administration's history that suggests this is the path it will take.

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Feed Techdirt: Media Organizations (Correctly) Worry That Rolling Stone Verdict Will Make Saying Sorry Actionable (techdirt.com)

We didn't cover anything about the whole bogus story that Rolling Stone published last year about campus rape at UVA, which it later had to retract and take down. The whole thing was something of a clusterfuck, but not directly relevant to what we write about here. Eventually, it led to a defamation case filed by UVA's former associate dean, Nicole Eramo, against Rolling Stone, which was pretty interesting and resulted in a somewhat surprising loss for Rolling Stone. As we've discussed plenty of times, winning a defamation lawsuit -- especially against a public figure -- is particularly difficult (and that's a good thing). The actions need to be particularly egregious. And, in this case, the jury decided that they were. I'm certainly not going to defend Rolling Stone and its ridiculously shoddy reporting, which seemed to be confirmation bias piled upon confirmation bias.

But as some quickly pointed out, the verdict could have some serious chilling effects on media organizations -- in part because the jury found that the originally updated version of the story -- as the details reported began to crumble -- and which included an editor's note apologizing for problems with the original reporting, was viewed by the jury as a republication, and, even worse, it was that "republication" that met the "actual malice" standpoint needed to get over the defamation bar.

This is problematic.

It was the original reporting that was bad. The apology was good. Yet, the way the jury ruled, Rolling Stone would have been better off not apologizing for the error and not adding the editor's note to the story. That seems crazy. And thus, the Reporters Committee for Freedom of the Press (RCFP) and eight big media organizations (including the Washington Post, who was the publication that first exposed many of the problems in the Rolling Stone article) have filed an amicus brief with the court raising this issue (found via Eriq Gardner's excellent reporting at THREsq).

The argument is pretty straightforward. Creating a chilling effect on correcting stories and apologizing for errors is really, really bad.

Journalists have always had a commitment to ethical standards by assuming responsibility for their errors and setting the record straight. Being accountable to the public by updating stories as needed is one way to reassure readers that the news media are dedicated to accuracy in their reporting. As proof of the power of corrections and their contribution to reputable journalism, a 1998 study conducted by the American Society of Newspaper Editors found that 63 percent of newspaper readers “‘feel better’ about the quality of the news coverage” when there are corrections....

[....]

In the case of news published on the Internet, the news media can more quickly and meaningfully provide more in-depth modifications and updates than in the traditional print context. An explanation of a mistake can be made at any time in the same place as the original article, where the same audience is more likely to see it. In addition, “[d]igital publishing has made it possible for editors not only to scrub or enhance stories as they develop but also to pull back the curtain – to make sure readers see and understand what they’ve done.”...

[....]

Numerous high-profile examples show that the tradition that has developed in online journalism is to leave a controversial story on the website while noting the problems with it. Adding an explanation by no means indicates that the publishers are supporting, reaffirming, or republishing the facts of the original story. On the contrary, they are preserving the record of what was previously written while adding greater context
Indeed, this is the same policy we take at Techdirt. In the cases that we've made serious mistakes in our reporting, we leave up the original, but with a prominent correction and apology. That shouldn't be seen as a "republication" and an admission that the republication was malicious. That's clearly a bogus interpretation and very problematic. It's much, much worse to simply disappear an article with errors or problematic reporting, because that's hiding things, rather than being more open and transparent. We make fun of the publications that simply disappear such stories.

Because correcting false statements in an article, even short of retracting the entire article, will often be considered a mitigation of damages or evidence of lack of malice, responding to new information and posting updates are clearly encouraged by courts and seen as a positive act. Allowing the attachment of an editor’s note to the original article, which backs away from claims in that publication, to constitute a “republication” is thus inconsistent with clear public policy interests in encouraging greater explanation as stories develop.
Hopefully the court reconsiders this issue -- otherwise, one hopes that an appeals court, or even the Supreme Court will take up this issue on appeal down the road. Publications shouldn't be punished for admitting to mistakes. That would seem to go against all common sense.

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Feed Techdirt: HBO Issues Takedown For Artwork Made By Autistic Teenager Because Bullies Gonna Bully Y'all (techdirt.com)

It's well-known at this point that HBO guards its intellectual property on the Game of Thrones franchise more jealously than a direwolf with a freshly harvested bone. To that end, the company often times treats some of its biggest fans with disdain, such as when it killed off viewing parties that would otherwise generate more interest in the show, or the times it abused the DMCA process as a way to keep spoilers from the show from permeating. These actions are indeed annoying, but they lack a certain something in the pure evil department.

Unlike, say, HBO issuing a takedown on some art produced by a thirteen-year-old autistic child just because that art included a trademarked catchphrase from the show.

"My daughter, who happens to be autistic, was doing an art challenge called Huevember which consisted of doing a piece of art based on a different colour as you worked your way round a colour wheel," Jonathan Wilcox, of Edwinstowe in the UK, told The Register on Thursday.

"She was uploading her pictures to a variety of sites and sharing them on Facebook. For this particular piece, she decided to title it 'Winter is Coming.' I do not believe she uploaded the picture to RedBubble to make any particular financial gain, she just thought it a sensible place to put it."

So a child makes some art and puts it on the internet, because that's what you do these days. It should be noted that the artwork was not being sold on the site, only displayed. HBO's lawyers come across it and take it down, with nary a conversation. And, lest you think that the artwork itself had something to do with the show, thus ameliorating HBO's actions, here is the artwork in question.


As someone who watches the show regularly, the image doesn't appear to me to be in any way connected to the show. Nor, likely, is the text itself. It's far more likely that a child that created some art at a certain time of year came up with the phrase independently. But, because that phrase is trademarked by HBO, the takedown was issued.

The takedown notice forwarded by Redbubble to Wilcox doesn't specifically cite trademark as the law being applied, but it's the only one that makes sense. That means that the test in question is whether or not anyone is going to confuse this artwork as being created by or endorsed by HBO. And if you believe the answer to that question is "yes," then I'm surprised you're able to put your pants on in the morning. The whole thing seems to be confusing, because even though the DMCA doesn't apply to trademark law, Redbubble is clearly treating it as a DMCA takedown -- where it just replaced the normal "copyright" terms with "IP/Publicity Rights" -- and even uses its DMCA email address for any "counternotice." And the "counternotice" process is identical to a DMCA counternotice process, which requires the family to accept jurisdiction in California (remember, they're in the UK) if they counter the claim.

This is ridiculous on many levels, but once again highlights how the power of copyright to be a tool for censorship grows and expands and swallows other legal doctrines in the same neighborhood.

You can sense Wilcox's frustration in his comments.

"My first reaction to the letter was 'FFS.' HBO should get a life or stick something where the sun doesn't shine," Wilcox said.

"On further investigation, it appears HBO are doing this all over the place regarding this phrase. It seems to have upset a lot of people on Etsy and elsewhere who have had the same or similar letter."

This is the problem when large entities and their legal departments use the DMCA (or a quasi-DMCA-like) process like a shotgun, spraying censorious buckshot at many targets, only some of which might be truly infringing. This lack of legal nuance manages to catch innocent content producers in the crossfire -- in this case an autistic teenager who painted a picture. One wonders how the more virtuous heroes from the show would react.



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Feed Techdirt: Daily Deal: VPN Unlimited And To Do Checklist Bundle (techdirt.com)

Boost your productivity and security with the $35 VPN Unlimited And To Do Checklist Bundle. Protect up to 5 of your devices from prying eyes with a 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. With the To Do Checklist app (compatible with iOS 7 or later), you can compile all of your to-dos in one place. You'll access a rich array of features allowing you to group, share, and schedule reminders for your tasks, ultimately turning you into a productivity machine.

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.

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Feed Techdirt: Why It's Pointless For Trump To Renegotiate TPP, Even If He Wanted To, And Even If He Could (techdirt.com)

Last month, we pointed out that that pretty much everyone agrees that TPP is dead... except that some still cling to the hope that Trump might be persuaded to carry out another swift U-turn and revivify the zombie deal. As Mike noted, Trump doesn't seem to be against these kinds of mega-trade deals in principle, it's just that he says the US generally concedes too much in them. That means he'd need some kind of high-profile win to make TPP 2.0 compatible with his earlier condemnation of TPP 1.0's terms.

The hope amongst true TPP believers seems to be that Trump could reopen the negotiations, talk tough, and strike a deal that is far more favorable to the US, which he could then ratify, holding it up as another Trump triumph. But in an article on the Cobram Courier site, the Australian ambassador to the US, Joe Hockey, says it would be "fanciful" to think the other TPP nations would happily reopen negotiations so that Trump could rewrite it in his favor. Leaving aside the fact that as one of Australia's top diplomats, Hockey doubtless knows exactly what his government's views are on this and thus speaks with authority, his logic is simple and pretty inarguable:

If the US gets a better deal out of the TPP then the other 11 countries have to make sacrifices and those other countries are going to find it politically impossible to sell it domestically that they are making more sacrifices than President Trump.
Hockey said that governments in the other nations had already come under intense domestic pressure over the current TPP, and the concessions they had needed to make in order to secure a deal. A new agreement would be even worse, because there's an extra factor exacerbating the situation:

Those pressures wouldn't get easier if in a very celebrated way the president of the United States says 'We got a better deal' because that means we got a lesser deal.
Despite the prayers of some die-hard supporters, it seems unlikely that Trump could manage to get the other TPP nations to agree to reopen the deal after eight years of fraught negotiations, and then persuade them to sign up to amendments that gave the US more and the others less. But even if he did, it would take only one triumphant @realDonaldTrump tweet boasting hyperbolically of his success -- naturally RT'd ten thousand times around the world -- for the President to make the new deal irremediably toxic for the other TPP governments, and thus impossible to ratify.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+



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Feed Techdirt: South Korea To Tackle Video Game Cheating By Criminalizing Breaking A Game's ToS (techdirt.com)

I have some admiration for South Korea's ability to look squarely at the national hostage situation that is its northerly neighbor and spend so much time enjoying video games. That this dedication to my favorite hobby occasionally pulls the country's government into putting forward dumb laws is an unfortunate by-product, however. It seems the South Korean government is still at it, as it attempts to join Japan in criminalizing cheating in video games.

And it has managed to construct this law to criminalize cheating in what simply has to be the dumbest way possible.

According to PvPLive, a recent amendment passed by the South Korean parliament bans the “manufacturing and distributing programs that are not allowed by the game company and its Terms of Service.” In theory, this makes it easier for the creators of competitive games to crack down on things like hacking programs, aimbots, and other game mods that give players an unfair advantage in online play.

Great theory, but this method for stopping cheaters should be setting off alarm bells all over the place. Criminalizing the violation of a ToS is a really, really bad idea. Our own CFAA legislation should serve as a wondeful primer on how broadly criminalizing violating terms of service can result in gross overreach by prosecutors who will use the law as a tool to jail people nobody thinks should be imprisoned. There's a reason why these attempts to use ToS to thwart cheating, or modding, are widely considered creative end-arounds to the actual law: because they're basically bullshit. Codifying into law the criminalization of the violation of a software ToS that nobody reads is casting quite a wide net to combat an otherwise small problem.

It's also well worth noting that most of the benign modding community regularly violates game ToS as they do their work.

But while this could deter would-be hackers from creating programs explicitly for cheating, the somewhat ambiguous act of outlawing any program that violates the Terms of Service has some League of Legendsand Overwatch players worried that non-malicious mods could be caught in the crossfire.

Look, eSports is becoming a significant enough industry that I understand the effort to combat cheating within it. And the online portion of the gaming experience is so center stage at this point that it would have been surprising if governments weren't starting to look at how to protect the industry from a saturation of cheaters who break the game for other gamers. But broadly worded legislative nukes aren't the way to combat a cheating insurgency.



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Feed Techdirt: Rep. Marsha Blackburn Says Internet Service Providers Have 'An Obligation' To Censor 'Fake News' (techdirt.com)

Tennessee Rep. Marsha Blackburn doesn't have a very good history demonstrating any knowledge of how the internet works. She's generally in favor of two very stupid policies related to the internet. First, getting rid of net neutrality. Second, forcing tech companies to censor the internet to stop "piracy." The fact that her rationales for these two things are completely in conflict with each other doesn't seem to enter her thought process. That is, she claims that there shouldn't be any net neutrality because it's important to keep the internet free from all regulations. Here's Blackburn explaining this point in a nice, quick and utterly idiotic whiteboard video:
If you can't see that, she starts out by talking up how wonderful the internet is just as it is today, and notes that it's necessary for creating jobs. Then she says this:

Some people fear that without government intervention, that entrepreneurs and innovators are going to hijack the internet that you enjoy. The World Wide Web! This hasn't happened. And there has never been a time when a consumer needed a federal bureaucrat to intervene.
Then she talks about passing her legislation to block the FCC "from ever regulating the internet" because "we want to keep it open free and prosperous."

Of course, she's quite willing to sing a different tune when it comes to her other pet projects. She was a major backer of SOPA, of course, which was a bill to regulate the internet and open it up to Chinese-style site-blocking. A few months ago, she also made the nutty claim that the script kiddie botnet hack that took down large parts of the internet would have been stopped if only SOPA had been passed which made no sense at all.

And she's back again now to deal with the highly exaggerated scourge of "fake news." Her solution? Have ISPs censor and delete "fake" news. Really:
If you can't see that, it's part of a clip of Blackburn on CNN talking about "fake news," where she says:

If anyone is putting fake news out there, the ISPs have the obligation to, in some way, get that off the web. And maybe it's time for these information systems to look to have some type of news editor doing some vetting on that. Whether it's the Russians, the Chinese, the Iranians or whomever. You do not want that out there because it's... because it's fake news! It is not something that is going to be correct. It's going to end up being refuted. But it takes time, effort and energy to do that, and trying to sway or misinform is completely inappropriate, and in my opinion unethical.
So she isn't directly calling for legislation, but any time you have a sitting legislator (not to mention a Trump transition team member...) talking about how internet companies need to censor the internet to do away with "fake news" your ears should perk up. First off, note that she says that refuting fake stories takes "time, effort and energy" but doesn't note that finding "some type of news editor" who can review the news postings of billions of internet users is, um, physically impossible. Does she really not understand the scale of what she's talking about?

Second, I get the feeling that Marsha Blackburn's definiton of "fake news" differs from many other people's -- which is why we've noted that the whole "fake news freakout" is so misguided. The term can mean just about anything -- and all too frequently means "news I disagree with." I'm going to imagine that Rep. Blackburn doesn't much like this article for instance. Does she believe that her friends, the internet service providers, have "an obligation" to get this article "off the web"?

Because that's a pretty serious issue: you have a sitting legislator effectively calling for internet censorship based on a vague standard of news being "fake." Somewhat ironically, Blackburn has been one of the most vocal opponents of the bogeyman of the Fairness Doctrine -- which was an attempt to beat back biased news in the past by requiring "equal time" to opposing views. But Blackburn is constantly freaking out about a non-existent "fairness doctrine" for the internet that she insists was part of the FCC's net neutrality rules (it wasn't, and never was suggested). But her suggestion for having internet companies censor "fake news" seems even worse than a fairness doctrine. Rather than encouraging more speech, Blackburn is flat out supporting having internet companies censor content they deem to be "fake." That's bad.

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Feed Techdirt: Pirates Trying To Form New Icelandic Government (techdirt.com)

All year long, there have been reports talking about how the Pirate Party in Iceland were poised to take control over the Icelandic government in the elections. Many publications acted like it was a foregone conclusion. However, if anything should be obvious this year, what the polls and the press are telling you about likely outcomes of elections should be taken with a large grain of salt. So we didn't report on it -- even after the election when the Pirate Party did well, but still came in third place. However, with the top two parties failing to build a coalition to form a new government, the Iceland Pirates have been given a shot and they're hard at work trying to build a coalition that will form the government.

Of course, this still isn't a guarantee -- and there's already talk of having to hold another election, but hopefully the Pirates can put together something. While it does feel like many people involved in Pirate Parties have underestimated what it actually takes to govern, it would certainly be interesting -- especially in Iceland -- to see what they could do.

The party appears to be taking a measured approached to a task viewed by many as exceeding urgent and pressing. Members of the parliamentary party spent all weekend discussing the issues between themselves, with no representatives of any other parties involved.

“We don’t want this this to be a rushed or botched job. We want to do things properly,” says Pirate MP Einar Aðalsteinn Brynjólfsson.

“Of course, it is time for a new government to be formed – otherwise we could be heading for a constitutional crisis. The current government is a caretaker government with a limited mandate.”
Hopefully the parties can work out their differences and create a coalition government led by the Pirates. Icleand has swung back and forth on the pendulum of supporting true internet freedom in the past, but having the Pirates in charge could lead to some interesting and worthwhile experiments. And, in an age where too much reasonable anger at old line politicians is being directed towards ultra-nationalistic campaigners who tend to look backwards rather than forward, it will be worthwhile to see what a party with a truly forward looking agenda could accomplish.

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Feed Techdirt: Lawsuit Against Courts Massively Overcharging For Documents Moves Forward (techdirt.com)

Back in April, we wrote about an interesting lawsuit filed over excessive fees for PACER, the federal court system's electronic records system. If you're not a lawyer or journalist, and have never used PACER, it is difficult to put into words what a ridiculous and outdated system it is. Not only does it look like it was designed and built in 1998, the court system leverages ridiculous fees for everything you do in it. It's officially 10 cents per page (with a limit of $3 max per document), but that's not just per page you download of court documents, but everything. Do a search? That'll be at least 10 cents and possibly more if the magic PACER system decides the results are long enough. Look at a docket of a court case? Better hope it's not one with hundreds of filings, because just opening the docket can cost you $3 -- and that's before downloading any documents. As we pointed out years ago, the fees charged for PACER appear to be illegal. The law, 28 USC 123, that allows the court system to charge for PACER limits the fees to being "reasonable" -- and that means, among other things, that the fees are only used for the upkeep of PACER, and not for other stuff.

But that's not true. PACER brings in a ton of money and most of it is used for other things within the court system (and very little of it seems to be earmarked for actually upgrading PACER). This is a huge problem if you believe in the rule of law, and the idea that people should be able to read the law. Because the law is much more than the official regulations -- it also includes case law. And PACER has made it so that the relevant caselaw can often be inaccessible and expensive. That's crazy.

So the lawsuit that was filed earlier this year was interesting -- and of course the federal government tried to get it tossed out. Thankfully, the judge in the case, Ellen Segal Huevelle, has rejected that request and allowed the case to move forward. The government objected on two grounds: first, that a similar, but slightly different case, had also been filed by someone else -- and (more importantly) that the lawsuit failed to state a claim, because they didn't first complain to the PACER operators. Judge Huevelle doesn't buy either argument. About the two separate cases, the judge notes that the two cases are about two different things. This case is about how PACER charges too much per page under the law. The other case -- Fisher v. the United States -- (which, yes, we also wrote about) is about how PACER overcharges people when they just look at a docket. That is, the claim is that because PACER just considers every 4,320 bytes to be "a page" it is overcharging people, since dockets that are many fewer pages are being charged at higher rates. As Huevelle notes, these are different issues:

According to the class action complaint in Fisher, “PACER claims to charge users $0.10 for each page in a docket report” and calculates pages by equating 4,320 extracted bytes to one page, thus “purporting to charge users $0.10 per 4,320 bytes. But the PACER system actually miscalculates the number of extracted bytes in a docket report, resulting in an overcharge to users.”... In other words, Fisher claims an error in the application of the PACER fee schedule to a particular type of request. In contrast, plaintiffs here challenge the legality of the fee schedule. These are separate issues, and a finding of liability in one case would have no impact on liability in the other case. Therefore, the Court will not dismiss the suit based on the first-to-file rule.
Personally, I think both cases have merit, but they are definitely on different issues.

As for the failure to state a claim, again, the court doesn't buy it. Here, the government argued that because when you sign up for a PACER account, you agree to all the fine print in the user agreement, and part of that says that if there are billing "errors" you "must alert the PACER Service Center." Thus, our government lawyers argue, it means that because the plaintiffs here didn't claim "errors" in their bill to the PACER Service Center, there is no legal argument here. This is a ridiculous argument. And the court recognizes that. First it notes that in the other case mentioned above (the Fisher case), the courts have already said that clause does not require you to go to PACER before suing, but more importantly, notes that this case isn't about billing errors at all. It's about whether or not the bills are legal at all:

This Court need not reach those legal issues because, unlike Fisher, plaintiffs here do not claim a billing error. Therefore, even if the notification requirement constituted a contractual condition, it would not apply to the plaintiffs’ challenges to the legality of the fee schedule. Likewise, even if users were required to exhaust their claims for billing errors, that requirement would not apply to the claim in this case. In sum, the PACER policy statement provides no basis for dismissing this suit.
At this point, there's still plenty to go on this case -- and this is just a procedural step along the way. But it's nice to see that the court recognizes the government's ridiculous arguments for what they are.

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Feed Techdirt: Bethesda Bullies One Of Its Creative Fans Over Website Metatags (techdirt.com)

Bethesda has something of a complicated history on our pages. The company is at once often terrible on matters of enforcing its intellectual property in a protectionist manner, while also occasionally acting quite good on matters of connecting with its fans in a meaningful and downright sweet manner. Few and far between have been the stories of those two separate philosophies intersecting, but we have such an instance now as Bethesda has demanded any Bethesda trademark words be removed in metatags on the website for DoomRL, a fan-made rogue-like inspired by the classic Doom games.

So... Zenimax have just written to me demanding I take down the DoomRL site... :-/ pic.twitter.com/tXAwdq59Zz

— Kornel Kisielewicz (@epyoncf) December 2, 2016


It's a strangely worded letter in a couple of respects. First, the letter seems to be focused on the use of words and/or phrases trademarked by Bethesda/ZeniMax within the metatags for the DoomRL website, as opposed to making any sort of copyright claim on the game itself. In other words, it's not at all clear from the threat letter whether or not the company is objecting to the fan-game in any way, or just the use of the metatags. If the latter, the threat makes very little sense. The text on the website doesn't mention Bethesda or ZeniMax at all and only mentions ID Software to credit it for being the creators of the Doom franchise. The trademarks that appear to be in question are references to Doom itself.

And these are a game, a website, and references that are years old. The game appears to have been in production for at least six years and has been publicized on the web for about as long. It's a game that doesn't resemble any actual Bethesda property and is instead a fan's new take on the franchise, offered for free. I don't read any objection into the game itself in the threat letter, so why make such a big deal over the use of the Doom name itself? Is Bethesda cool with a fan making a Doom inspired game, so long as that fan never mentions it to anyone?

As a result of the threat, however, creator Kornel Kisielewicz has decided to scrap DoomRL for a successor that doesn't include any Doom IP. This is about the time that defenders of copyright and trademark will chime in to suggest that intellectual property enforcement has led to the creation of new intellectual property, thus fulfilling its purpose... except that isn't really true. It's basically the same game, just with the added effort of pretending like it's something it wasn't originally. Yay?

And, more importantly, the stripping of references to Doom helps Bethesda how, exactly? What was once a native expansion of the franchise as an expression of love from a fan, one which could only serve to point new potential customers back to the original game series, has instead become something independent of that series. Kisielewicz has even started a Kickstarter for the sanitized game to now profit off of it, instead of acting as a free promoter for Bethesda's game. At best, Bethesda loses out on a free marketing vector for its Doom franchise, while at worst some in the gaming public will want to punish the company for this aggressive behavior. How exactly is this kind of IP bludgeoning a better option than working with the fan/creator?



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Feed Techdirt: Another Lawsuit Highlights How Many 'Smart' Toys Violate Privacy, Aren't Secure (techdirt.com)

So we've talked a bit about the privacy implications of smart toys, and the fact that people aren't exactly thrilled that Barbie now tracks your childrens' behavior and then uploads that data to the cloud. Like most internet-of-not-so-smart things, these toys often come with flimsy security and only a passing interest in privacy. As such we've increasingly seen events like the Vtech hack, where hackers obtained the names, email addresses, passwords, and home addresses of 4,833,678 parents, and the first names, genders and birthdays of more than 200,000 kids.

Unsurprisingly, the collection of kids' babbling while in the company of smart toys continues to ruffle feathers. This week, a coalition of consumer advocates including the Consumer's Union filed suit against Genesis Toys, the maker of two such toys, the My Friend Cayla doll and the i-Que Intelligent Robot. According to the full lawsuit (pdf), the toy maker is violating COPPA (the Childrens’ Online Privacy Protection Act of 1998) by failing to adequately inform parents' that their kids conversations and personal data collected by the toys are being shipped off to servers and third-party companies.

Among the problems cited in the complaint is that the privacy policies governing the collection of kids' data aren't clear, aren't prominently displayed, and often change without notice. Parents aren't properly informed that data is being culled from the toys and sent off to companies like Nuance Communications, most commonly known for its Dragon voice recognition software, but a company that also has prominent roles in healthcare dictation and as a defense contractor. Both toys by proxy are governed by Nuance's privacy policy, which among other things says:

"We may use the information that we collect for our internal purposes to develop, tune, enhance, and improve our products and services, and for advertising and marketing consistent with this Privacy Policy." It continues, “If you are under 18 or otherwise would be required to have parent or guardian consent to share information with Nuance, you should not send any information about yourself to us."
With the toys being marketed to "ages 4 and up" and being mostly used by kids under age 18, the lawsuit states the companies selling and collecting this toy data are violating COPPA. Under COPPA, companies gathering kids data have to provide notice to, and obtain consent from parents regarding data collection. They also have to provide parents tools to access, review and delete this data if wanted, as well as the parental ability to dictate that the data can be collected, but not shared with third parties. The complaint suggests neither Nuance or Genesis Toys are doing any of this.

And again, privacy is just part of the equation. There's also the fact that these toys just aren't all that secure. A report by the Norwegian Consumer Council (pdf) found that a lot of the data being transmitted by these toys is done so via vanilla, unencrypted HTTP connections that could be subject to man in the middle attacks. Reconfiguring the devices to create in-home surveillance tools was also "very easy and requires little technical know-how," according to the report.
So again, much like all internet of things devices, companies were so excited to integrate internet connectivity, they effectively forgot about user privacy and security. Are we perhaps noticing a ongoing theme yet?

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