Crooked Bough News Round-up

— KFC Sues Church’s Chicken Over ‘Original Recipe’ Trademark, Which Shouldn’t Be Trademarkable

 

at 11/22/24 8:39pm

Its amazing just how many of the trademark disputes we see and discuss here at Techdirt ultimately result from the USPTO granting trademarks that never should have been granted in the first place. In the food industry specifically, we saw this recently in the whole Taco Tuesday episode, in which the Trademark Office granted Taco Johns a mark for taco Tuesday, despite the descriptive and fairly generic nature of the term. The end result was years and years of Taco Johns bullying other restaurants wielding a this trademark that never should have been a thing. It was only when another large entity with a sizeable legal war chest teamed up with LeBron James of all people to get the trademark rescinded. Which brings us to KFC and its lawsuit against Churchs Chicken. KFC sued Churchs over the latters use of the phrase Original Recipe, for which KFC has a registered trademark. Churchs use of the term original recipe in its advertising is likely to deceive, confuse and mislead purchasers and prospective purchasers into believing the goods and services offered under the mark are affiliated with, authorized by, or come from KFC, the chain operated by Yum Brands claimed in a lawsuit filed last week in U.S. District Court in Texas.  KFC became aware of Churchs use of the phrase toward the end of September, and objected in a letter it sent to the Atlanta-based chicken chain the following month, according to the suit.  On behalf of fried chicken lovers out there, we take it personally when another company tries to claim our iconic taste and branding as their own, KFC said in an emailed statement. Lets get the obvious out of the way. The trademark that KFC has for Original Recipe, granted all the way back in the 1970s, never should have been granted. That much should be plainly freaking obvious. The idea that you could grant such a mark to a damned restaurant of all things is insane. Companies that make food talk about their recipes all the time, of course. If a restaurant wants to revert back to its, you know, original recipe, then how the hell else are they supposed to tell the public it is doing so? This trademark never should have existed. Its descriptive and its generic, full stop. Now, it certainly is true, as KFC takes great pains to lay our in its lawsuit, that KFC has famously used the phrase original recipe in its branding and advertising. In fact, it has become a cornerstone for KFCs branding, typically around other references to its secret blend of 11 herbs and spices. But KFCs lawyers damned well know that original recipe is descriptive and generic generally, not to mention how Churchs is using the phrase (more on that in a moment). Thats why they included this bit in their suit: Because of KFC’s exclusive and extensive use of the ORIGINAL RECIPE®Mark, the mark has acquired substantial value and is widely recognized as identifying and distinguishing KFC as the source of goods and services offered in connection with the ORIGINAL RECIPE® Mark. KFC owns strong common law rights in the ORIGINAL RECIPE® Mark as a result of this extensive and continuous use, and the mark has become famous among the general consuming public of the United States and of Texas and represents an extraordinarily valuable goodwill to KFC. Descriptive words and terms can be trademarkable if they either acquire a secondary meaning that the public primarily associates with the company applying for the mark, or if the mark becomes so famously associated with the applicant that the public predominantly associates it with the applicants company. Now, KFC, previously Kentucky Fried Chicken, has been using the original recipe phrase in its marketing since the 1950s. The problem here is that this particular trademark isnt merely descriptive; its also generic. And given were talking about using original recipe in marketing foodstuffs, say with me again now, the trademark never should have been granted. Theres no secondary meaning here and the association due to extensive use by KFC shouldnt break through the simple mitigating fact that its generic in nature. And if you need proof of that, you can simply refer to KFCs own lawsuit showing how Churchs is using the phrase. If you think any of that causes an association with KFC (as the lawsuit alleges), especially with all of the Churchs branding that accompanies the messaging, then you have head trauma and should see a doctor. In the context of that messaging and branding, the term is being used both generically and, frankly, literally. Churchs is reverting its recipe for its chicken back to its original recipe. Its a factual statement. And that really, really should not be an infringement of any trademark. The point of trademark law is not to be able to prevent a competitor from making a factual statement of this kind. So here we are again, thanks to the Trademark Office granting a trademark that it never should have, due to its generic nature within the marketplace in which the applicant operates. This case is practically begging for the same kind of collective action to get this generic trademark cancelled as happened in the whole Taco Tuesday fiasco.

[Category: 1, churchs chicken, kfc, chicken, original recipe, trademark]

— Ctrl-Alt-Speech: Nothing To FCC Here

 

at 11/22/24 4:43pm

Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderations Ben Whitelaw. Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed. In this week’s roundup of the latest news in online speech, content moderation and internet regulation, Mike is joined by guest host David Sullivan, the Executive Director of the Digital Trust & Safety Partnership. They cover: Trumps FCC Pick Wants to Be the Speech Police. Thats Not His Job (Wired) Sauce for the Goose: The FCC Lacks Authority to Interpret Section 230 Post-Loper Bright (The Federalist Society) Roblox gives parents more power to protect the safety of young gamers (NBC) Meta should allow third party imagery of terrorist attacks, with a warning (Oversight Board) As Bluesky soars, Threads rolls out custom feeds globally (TechCrunch) Threads’ algorithm will focus more on the people you follow (The Verge) The communications minister cited a study in support of a teen social media ban. Its co-author disagrees (Crikey) Meta says it has removed 2 million accounts linked to pig butchering scams (The Record) You Too Can Hire an ‘Etsy Witch’ to Curse Elon Musk (Wired) This episode is brought to you with financial support from the Future of Online Trust & Safety Fund.

[Category: 1, bluesky, etsy, meta, roblox, brendan carr, content moderation, donald trump, elon musk, fcc, oversight board, social media]

— VPN Company Cyberghost Says We Infringed Its Copyright In An Advertisement We Ran For Them A Decade Ago

 

at 11/22/24 2:08pm

I rarely log into Facebook these days, but I happened to do so last week and was a bit surprised to see this pop up saying that an advertising post we had put up for the VPN service CyberGhost nearly a decade ago had to be removed: That’s a notice saying that Facebook had removed a Techdirt post from way back in 2016 (simpler times!) and a button saying “See why?” The link in question was to one of our “Daily Deals” that we run in conjunction with the eCommerce company StackCommerce. They source deals for us and we sell them to our readers via our Daily Deals feature. In this case, it was a deal for a VPN service from CyberGhost. It seemed very weird that this old post was suddenly removed, so I clicked through to “see why” and was told it was… for copyright infringement? In the “options,” it says that I can appeal directly to Facebook or I can email the original reporter, who turns out to be CyberGhost themselves: Yes, thats right. CyberGhost issued a copyright claim against our post promoting their own VPN service from nearly 10 years ago. Its hard to fathom what possible copyright we could have violated by literally advertising the service they asked us to advertise. So, it doesnt exactly seem worth it to me to email CyberGhost to ask them why they sent a copyright takedown over an offering they did with StackCommerce and where we were advertising their VPN service. I mean, fine, if that post is no longer available on Facebook, so be it. What are they going to say — Sorry, we didnt mean to claim copyright on the ad for our own product that we asked you to run? But this raises a bigger question — what is CyberGhosts endgame here? Are they just going around issuing bogus takedowns for ancient posts advertising their service? Do they want to memory hole their own marketing history for some reason? Or was this just an overzealous bot or confused employee clicking the wrong buttons? Whatever the explanation, its yet another example of how widely abused and broken the copyright takedown system is. When companies can blithely claim copyright over content promoting their own products, it shows how little checks there are on false claims.

[Category: cyberghost, facebook, advertisements, copyright, promotions, takedowns]

— City Of Los Angeles Says Fuck It: No Cops Were Harmed When We Released Their Names And Photos

 

at 11/22/24 12:08pm

This is just what I needed to read after a post-election hell week or two. The city of Los Angeles has gone past exhaustion to vindictive irritation after being sued by the same cops it employs because it (legally) handed over photos and names of LAPD officers to journalist Ben Camacho. Ben Camacho then shared those with activist group, Stop LAPD Spying Coalition, which added those to its searchable database of local law enforcement officers. At first, the city played ball. It went to bat for the LAPD and claimed Camacho and Stop LAPD Spying had no right to publish the information theyd obtained legally via public records requests. Then the LAPDs union sued the city, not only claiming the city had no legal right to release this information, but that officers lives were being threatened by the publication of this data. Roughly 900 current officers were contained in the data dump. Dozens of those submitted affidavits to the court in the lawsuit filed by the union claiming theyve had to do everything from change phone numbers to leave town to avoid the supposed ongoing danger created by the release of this information. The officers joining the lawsuit also maintained they had a right to remain anonymous while engaging in this lawsuit, which meant the city couldnt counter specific allegations because its lawyers had no ideas which LAPD officers were making which claims. After several months, it appears the City of Los Angeles has had it up to here with having its time wasted by anonymous officers, their union reps, and wall-to-wall affidavits filled with unverifiable cop claims. So, it is with much rejoicing that I report the city is throwing most of these 900 cops directly under the bus. After arguing for more than a year that hundreds of undercover LAPD officers were at risk because their photos were mistakenly made public, the city of Los Angeles has suddenly reversed course, conceding that most of those involved are not working in the most sensitive police roles. In a series of court filings last week, city attorneys argued that the roughly 900 officers — whose names have so far been kept secret — don’t have a right to remain anonymous, and asked a judge to order their identities disclosed if their lawsuit against the city is to proceed.  Now, thats all just mainly procedural so it doesnt sound much like a city tired of cop bullshit. But later in the article, more detail is added, which definitely makes some implications about the citys apparent exasperation. [I]n filings this week, lawyers for the city told the court that although some officers had worked undercover in the past or might wish to do so in the future, “none of these more than 900 Doe Plaintiffs are presently true full-time ‘undercover officers.’” That undercuts the overly-dramatic submissions from several anonymous officers who claimed their current and future work if not their lives and the lives of their loved ones were endangered by the citys release of this info. Heres the real banger: this information had already been made public for several years by the LAPD itself. Assistant city attorney Hector Emilio Corea said in a sworn affidavit that he was part of a team of lawyers and staffers from the city attorney’s office who painstakingly combed through most of the plaintiff officers’ backgrounds. Corea said photos of many officers involved had already [been made] public on a Facebook page for the LAPD Museum, which published a 2019 yearbook with their names, ranks and assignments. These yearbooks are now limited to purchasers who can prove theyre police officers, but as the city attorney demonstrated via the Internet Archive, members of the public had been able to purchase these yearbooks as recently as November 2022. Not coincidentally, this move from public to private sales occurred only two months after Ben Camacho obtained these records from the city of Los Angeles. Truly great stuff. That the city has shifted stances to more closely align with the journalist it sued (but later settled with) because its tired of all the bullshit a bunch of anonymous cops are bring to the courts is the perfect blend of irony and poetic justice. Cops like to claim theyre the baddest mfers to ever walk into the valley of the shadow of death, but the moment the public gets on-demand access to their names and positions, theyre suddenly so fearful they have to (allegedly) pull up stakes and/or plead anonymously in court. These cops need to grow up or get out of the business, especially since this is really about accountability and has nearly nothing to do with the publication of info that has already been made public by the LAPD itself.

[Category: 1, ben camacho, free speech, journalism, lapd, los angeles, public records, stop lapd spying]

— Daily Deal: Xbox Game Pass Ultimate 3-Month Membership

 

at 11/22/24 12:04pm

Be the first to play Starfield and Forza Motorsport on day one so you never miss a thing and enjoy hundreds of high-quality games like Minecraft Legends and more with Xbox Game Pass Ultimate. Game Pass Ultimate includes hundreds of high-quality console and PC games, plus online console multiplayer. New games are added all the time, so there’s always something new to play. Enjoy member deals and discounts. Play together with friends on the most advanced multiplayer network and discover your next favorite game. A 3-month Ultimate membership is on sale for $36.49 for a limited time. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

[Category: 1, daily deal]

— Texas AG Declares War On Advertisers Who Snub Musk’s ExTwitter

 

at 11/22/24 10:32am

Texas Attorney General Ken Paxton loves to preach about free speech and free markets—except, apparently, when it comes to his political allies. In a stunningly hypocritical and authoritarian move, Paxton has launched an investigation to bully advertisers who have chosen not to support Elon Musks troubled ExTwitter platform. This is a chilling attack on both free speech and free markets. Ken Paxton has gone from cosplaying as a free speech warrior to acting as Elon Musk’s personal speech cop, using the power of the state to punish companies who won’t support Musk’s online kingdom. The hypocrisy would be laughable if the authoritarian overtones weren’t so chilling. Remember, Elon Musk himself told advertisers who disagreed with his position on content moderation to go fuck themselves. And yet, now he’s egging on this sham “investigation.” Paxtons actions are part of a disturbing pattern of Republican leaders who claim to be free speech champions, but are quick to use government power to punish speech they dislike. From DeSantis attacks on Disney to Trumps threats against media critics, the right increasingly sees free speech as a one-way street. Many major advertisers have pulled back spending on ExTwitter due to concerns about an increase in hate speech and misinformation on the platform under Musks leadership. This isnt the result of some coordinated boycott or conspiracy. They are simply making the rational business decision to worry about their ads appearing next to objectionable content and damaging their brands. Choosing where to spend ad dollars based on a media companys content policies is a normal business decision, not a conspiracy. It really was just a few months ago that Paxton’s similarly cynical, opportunistic sham “investigation” into Media Matters got laughed out of court. That investigation was also on a similar “let’s suck up to Elon” basis, after Elon got mad at a news article published by Media Matters that highlighted how ads for big Fortune 500 companies were showing up next to neo-Nazi content. In that case, everyone admitted that the ads did show up next to that content, but Elon didn’t like that Media Matters didn’t explain the steps it took to have those ads show up that way. So he not only sued Media Matters directly but also called for state AGs to investigate. Ken Paxton immediately jumped on that. A judge in DC called out just how problematic Paxton’s “investigation” was, and how it was a clear retaliation against Media Matters for its speech: Defendant’s investigation of Media Matters is “retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again[.]” … Defendant makes no contrary argument… But getting dinged by the court apparently has not stopped Paxton from wanting to launch similarly chilling “investigations” into others for their free market and free speech decisions. On Thursday, Paxton announced he had launched an investigation into advertisers for the apparent crime of not advertising on Elon Musk’s ExTwitter platform: Attorney General Paxton is investigating a possible coordinated plan or conspiracy to withhold advertising dollars from certain social media platforms by pressuring advertisers not to purchase online advertising space. Although companies are free to choose when and where they want to advertise, a conspiracy among companies along these lines can result in harm to competition and may violate the Texas Free Enterprise and Antitrust Act of 1983. The civil investigative demand requests documents and information related to WFA and its sub-organization known as the Global Alliance for Responsible Media (“GARM”) organizing their membership to potentially boycott social media platforms that are deemed to violate their “Brand Safety Standards.”  “It is completely unacceptable and un-American that the Department of Justice under the Biden Administration failed to enforce antitrust laws against its perceived political allies,” said Attorney General Paxton. “Trade organizations and companies cannot collude to block advertising revenue from entities they wish to undermine. Today’s document request is part of an ongoing investigation to hold WFA and its members accountable for any attempt to rig the system to harm organizations they might disagree with.” This is monstrously gross partisan hackery against completely understandable marketplace decisions. But it gives you a good sense of the kind of hackery to expect over the next few years. Daring not to give Trump allies money will be seen as “illegal boycotts.” By launching this bad-faith investigation into advertisers choices, Paxton is wielding the power of the state to bully companies into supporting his political allies. This is a blatant effort to chill the speech of Musks critics and coerce businesses into spending money on his platform, even if they object to how its being run. Its an authoritarian tactic masquerading as an antitrust probe. It’s clear to everyone that this is corrupt. It’s nakedly designed to create chilling effects and pressure companies into giving money to ideological allies of Donald Trump and Elon Musk. It’s cynical, obnoxious, and an attack on free speech and the rights of companies to choose not to advertise on sites they dislike. Paxtons investigation is a political stunt with no legal merit. It tramples on the free speech rights of Musks critics and the freedom of companies to make their own advertising decisions. This kind of bullying of businesses by the state is a disturbing attack on fundamental liberties, but Paxton seems to be betting on the idea that were in an era where its okay to trample on free speech rights, so long as its Trump-supporters doing it.

[Category: garm, twitter, world federation of advertisers, x, advertising, boycotts, elon musk, free speech, ken paxton, texas]

— Oh Look, It Was Trivial To Buy Troop And Intelligence Officer Location Data From Dodgy, Unregulated Data Brokers

 

at 11/22/24 6:25am

There are two major reasons that the U.S. doesn’t pass an internet-era privacy law or regulate data brokers despite a parade of dangerous scandals. One, lobbied by a vast web of interconnected industries with unlimited budgets, Congress is too corrupt to do its job. Two, the U.S. government is disincentivized to do anything because it exploits this privacy dysfunction to dodge domestic surveillance warrants. If we imposed safeguards on consumer data, everybody from app makers to telecoms would make billions less per quarter. So our corrupt lawmakers pretend the vast human harms of our greed are a distant and unavoidable externality. Unless the privacy issues involve some kid tracking rich people on their planes, of course, in which case Congress moves with a haste that would break the sound barrier. So as a result, we get a steady stream of scandals related to the over-collection and monetization of wireless location data, posing no limit of public safety, market trust, or national security issues. Including, for example, stalkers using location data to track and harm women. Or radical right wing extremists using it to target vulnerable abortion clinic visitors with health care disinformation. Even when U.S. troop safety is involved U.S. officials have proven too corrupt and incompetent to act. Just the latest case in point: Wired this week released an excellent new report documenting how it was relatively trivial to buy the sensitive and detailed movement data of U.S. military and intelligence workers as they moved around Germany: A collaborative analysis of billions of location coordinates obtained from a US-based data broker provides extraordinary insight into the daily routines of US service members. The findings also provide a vivid example of the significant risks the unregulated sale of mobile location data poses to the integrity of the US military and the safety of its service members and their families overseas. The data purchased by Wired doesnt just track troops as they head out for a weekend at the bars. It provides granular, second-by-second detail of their movements around extremely sensitive facilities: We tracked hundreds of thousands of signals from devices inside sensitive US installations in Germany. That includes scores of devices within suspected NSA monitoring or signals-analysis facilities, more than a thousand devices at a sprawling US compound where Ukrainian troops were being being trained in 2023, and nearly 2,000 others at an air force base that has crucially supported American drone operations. Wired does note that the FTC is poised to file several lawsuits recognizing these kinds of facilities as protected sites, though its unclear those suits will survive Lina Khans inevitable ouster under a Trump administration looking to dismantle the federal regulatory state for shits and giggles. When our underfunded and undermined regulators have tried to hold wireless companies or app makers accountable, theyre routinely derailed by either a Republican Congress (like when the GOP in 2017 killed FCC broadband privacy rules before they could even take effect), or more recently by a Trump Supreme Court keen to declare all federal consumer protection effectively illegal. Even the most basic of FCC efforts to impose a long overdue fine against AT&T, Verizon, and T-Mobile have run aground thanks to the Trump-stocked 5th, 6th, and Supreme Court efforts to block anything even vaguely resembling corporate oversight. Im told by the nations deepest thinkers that this corruption and greed is, somehow, populism. Time and time and time again the U.S. has prioritized making money over protecting consumer privacy, market health, or national security. And its certain to only get worse during a second Trump term stocked with folks like new FCC boss Brendan Carr, dedicated to ensuring his friends at AT&T, Verizon, and T-Mobile never face anything close to accountability for anything, ever. At some point there will be a privacy scandal involving location data thats so horrific, Congress will be forced to act. Im just not particularly excited to see what that scandal looks like. To dislodge our corrupt apathy, it will most assuredly have to involve the data of the rich and powerful, and it most likely will involve the loss of life. At which point, policymakers will stand around with an idiotic look on their faces pretending to not know exactly how things got to this point. And even then their solution will probably be a loophole-filled law, ghost written by AT&T and Facebook, that doesnt get close to fixing the actual problem.

[Category: 1, ftc, intelligence, location data, military, national security, privacy, troops, warrantless surveillance]

— Sixth Circuit Tosses Evidence After Cop Can’t Find One Credible Reason For Extending A Traffic Stop

 

at 11/21/24 9:08pm

This stop may not have been all that pretextual after all, the officer clocked the driver doing 69 mph in a 55 mph speed limit but it swiftly turned pretextual for reasons the officer couldnt competently explain. And thats what cost the officer (and the prosecution) their evidence. Back in 2015, the Supreme Court ruled that traffic stops end when the objective of the stop has been completed. That means that once a driver has been issued a warning or citation, theyre free to go. Recognizing this might cramp their preferred pretextual style, officers increased the number of questions they asked of drivers and slow-walked the other steps required to complete a traffic stop. Because nothing makes a pretext more useless than actually having to engage with the stated objective of the traffic stop. Well, lots of lower courts have already spotted this shift in tactics and responded accordingly. The key point wasnt completing the objective of the stop. The real point made by the Rodriguez decision was that cops could no longer extend traffic stops without sufficient reasonable suspicion to do so. And thats where cops keep tripping over themselves. In this case, handled by the Sixth Circuit Appeals Court, the officer stumbled more than most when defending her unreasonably extended traffic stop in court. Officer Kristen Cox, who was a member of the Knoxville (TN) Police Departments drug interdiction team, pulled over Nathaniel Taylor for speeding on Interstate 275. She asked Taylor for his license, registration, and insurance information. Taylor complied, but had trouble locating his insurance info. Officer Cox told him to keep looking for his proof of insurance, telling him he could avoid a ticket if he could find it. Then she went back to her car to run his license. When she did, she discovered he had a criminal record. Then she made her first stab at generating enough reasonable suspicion to extend the stop. And then she immediately undercut her own narrative when testifying in court. From the decision [PDF]: Back in her patrol car, Officer Cox checked Taylor’s records and discovered that he had a criminal history involving weapons, assaults, and simple possession of drugs. Meanwhile, she also observed him making large reaching movements in his car, which she acknowledged were consistent with rummaging for the proof of insurance that she asked him to look for. Not a great start. But then it got worse. Taylor eventually found documentation and flagged down Officer Cox by waving his hand and insurance paper out of the driver’s side window. When Officer Cox returned to Taylor’s vehicle, Taylor handed her an insurance bill, which Officer Cox accepted as sufficient documentation. Officer Cox informed him that she would not ticket him for driving without insurance. She also told Taylor not to make any further movements because he was making her nervous. But Officer Cox also acknowledged that the movements were because “[Taylor] was doing what [she] asked.” You cant have it both ways, although many cops believe (and attest) that they should. They should be able to issue conflicting orders and react to partial compliance as a dangerous form of potential violence, rather than just the actions of someone attempting to do the impossible. The officer returned to her car to write the speeding ticket. But rather than just do that, she also requested a K-9 unit due to the fact that she had observed air fresheners in the car, Taylors criminal history, and her disbelief in Taylors stated travel plans plans he had never stated because he was only asked where he was coming from (a job interview at a nearby business according to Taylor) but never asked where he was going. Those arent travel plans and, as such, cannot legitimately be considered reasonably suspicious. Nonethless, the drug dog arrived and did the thing, which gave officers permission to perform a warrantless search of Taylors car. Despite the dog supposedly alerting, no drugs were found. The only thing officers found was a gun that Taylor wasnt allowed to possess as a convicted felon. A grand jury indicted him and the case went to trial. The trial court ruled the stop was not unlawfully extended and allowed the results of the search to be admitted as evidence. The Sixth Circuit court, however, restores Taylors rights and affirms the findings of the Supreme Courts Rodriguez decision. This stop was unlawfully extended because Officer Cox never had the reasonable suspicion required to take it past the point of its stated objective: the speeding cited when Cox first pulled Taylor over. First, the court shoots down the officers claim about suspicious travel plans by pointing out she didnt have enough information on hand to draw the inferences she stated in support of extending the stop. Here, after learning that Taylor had just come from a job interview, Officer Cox “didn’t feel like he took the most efficient route to get” to the address on his driver’s license. But Officer Cox never asked Taylor where he was going. In fact, she admitted that she just made a guess about where Taylor was headed. That Officer Cox felt Taylor had too many air fresheners in his car doesnt matter either. Like the value of a defendant’s criminal history, the strong odor of air fresheners during a traffic stop plays more of a supporting role to other, stronger indicators of criminal activity in making the reasonable-suspicion determination. But here, there is no evidence of an odor, rendering the presence of air fresheners even less probative. Officer Cox did not indicate a strong smell of air fresheners, any trace odor of marijuana, or any other suspicious scent in Taylor’s vehicle. Quite the opposite: she said she did not “smell anything.” Rather, she merely observed that Taylor had several air fresheners on his gear shift. So we give little weight to the air fresheners on the gear shift of Taylor’s vehicle. In totality, it doesnt add up. Separately, the factors are weak. Combined into a whole including Officer Cox testifying that movements made by Taylor in response to her direct request for insurance documentation were somehow also suspicious theres still not enough to justify extending the stop, much less the search that followed it. The threshold for reasonable suspicion may be low, but it is not nonexistent. Thus, we hold that Officer Cox lacked a reasonable, articulable suspicion of criminal activity that justified extending Taylor’s stop to conduct a dog sniff. And theres no good faith exception to save the day. As the Appeals Court points out, good faith is an exception that applies to searches predicated on questionable warrants and no warrant was used here. [We] decline to extend the good-faith exception to the exclusionary rule to salvage unconstitutional Terry stops. The evidence is gone, which means theres no case and no chance for a conviction. Officer Cox went fishing and managed to land a felon-in-possession. But while lots of courts will go out of their way to ensure law enforcements fish dont get tossed back in the proverbial lake, the Sixth Circuit isnt willing to play that game not with these stakes (constitutional rights) and this almost complete lack of suspicion any court (much less cop) should call reasonable.

[Category: 1, 4th amendment, 6th circuit, drug dog, knoxville pd, kristen cox, nathaniel taylor, pretextual stop, tennessee]

— Sports Psychologist Continues Bullshit Copyright Suits Over Retweets By School Officials

 

at 11/21/24 5:24pm

Here we go again. Many years ago, we wrote about how one sports psychologist, Dr. Keith Bell, filed a copyright lawsuit against a college over a retweet. Specifically, the retweet included an image of a single page from Bells book, Winning Isnt Normal. These suits are nonsense, of course, as a retweet is not the same as publishing infringing material, not to mention all kinds of fair use defenses that would be in play here. But that wasnt the point of the suit. The point of it, instead, was almost certainly to extract money from Bells victim via a settlement to make him go away. Well, it turns out we could have written many, many more stories about Bell. As you can go and see for yourself, Bell files lawsuits over his book at a velocity that rivals some of the most litigious companies we talk about here. Sadly, the suit that is the subject of this post hasnt shown up on Court Listener just yet. It is similar to his other suits, except this one was already settled. Bell is now claiming that his victim violated the settlement agreement it never should have signed with him. Heres how we got here: In his lawsuit, Bell argues that as the author of the copyrighted book, “Winning Isn’t Normal,” he was “the first person to string words ‘winning isn’t normal’ together” and the “first person to put the phrase in writing.” The phrase, he says, expresses his philosophy for outperforming the competition in the world of sports. The Solon district, he alleges, violated his copyright when a district coach retweeted someone else’s tweet quoting from his book. The lawsuit against the Solon district alleges that in May 2018, Bell and the district entered into a settlement agreement to resolve the dispute related to the coach’s tweet. That agreement allegedly included a non-disparagement clause and a promise by the district to halt any further use of the copyrighted work. Bell now claims the district violated those elements of the settlement agreement, in part by failing to remove the tweet that referenced his work, and by a November 2021 phone call in which Superintendent Davis Eidahl allegedly made defamatory statements with racial undertones. Okay, so, where to begin? That this action moves the state of this disagreement from a settlement that never should have existed and back into a copyright lawsuit is probably actually a good thing for the Solon school district. The question as to whether a retweet of this kind could be copyright infringement is a frustratingly open one, but it shouldnt be. Retweeting doesnt create additional copies of content, but rather a link to the tweet itself. It may make the content more visible to more people, but that isnt the same as creating a new copy. As to the allegations that Eidahls conduct violated a non-disparagement clause in the settlement agreement, thats even more odd. Typically non-disparagement clauses prohibit defaming or otherwise negatively portraying a subject publicly or to other parties, not to the subject themselves. But of all the things Bell alleges Eidahl did to disparage him, they appear to have been in 1 on 1 interactions between the two of them. Included in the lawsuit are Bell’s notes of a November 2021 phone call between himself and Eidahl in which Bell claims Eidahl called him the “worst person in the world” and accused him of being a “lonely old man that has no friends, no family and spends all his days searching the internet to find innocent people to steal from.” Bell also alleges that Eidahl asked “me if I was Muslim in a way that was a slur.” The court records include a copy of an alleged email exchange between Bell and Eidahl shortly after the phone call in which the superintendent wrote: “It’s sad that you spend all your retired time devoted to preying on well-intentioned public school educators devoted to kids. It’s unfortunate that you target public school educators and public school districts to make your living in a time when public school funding is so limited. How much money is enough for you? These educators that you prey on for your own greed are hard-working, good-intentioned individuals that devote their life to kids. I was upset during our call because you continue to target individuals that have sacrificed so much for kids. Now that I’ve given it more thought, I actually feel sorry for you. I can’t imagine the character it takes to devote (your) retirement to these actions. It’s sad.” The Muslim question is obviously gross if true. But the rest of it is only barely related to the dispute that brought about the settlement agreement. And if this was all in 1 on 1 interactions, verbal or written, Im struggling to see how this would violate any sane anti-disparagement clause in the settlement agreement. One which, again, never should have been entered into. So now, in theory, this will go to court. And thats ultimately a good thing, because we need to start seeing some precedents set as to whether retweets of this nature can constitute copyright infringement or not.

[Category: 1, copyright, copyright troll, fair use, keith bell, shakedown, winning isn't normal]

— Will The ‘Right To Repair’ Movement Survive Trumpism 2.0?

 

at 11/21/24 2:19pm

U.S. consumer protection has been beaten to a pulp over the last few decades. Consumer protection regulators are routinely on the ropes, left understaffed, underfunded, and boxed in by an increasingly corrupt and radical 5th Circuit and Supreme Courts stocked with Trump sycophants. One bright spot, however, has been the right to reform movement, or efforts to ensure that its easier and cheaper for consumers to repair their own technology, without being boxed in or overbilled by corporations (across numerous industries) looking to monopolize repair. Last March Oregon became the seventh state to pass “right to repair” legislation. The bill’s passage came on the heels of legislation passed in Massachusetts (in 2012 and 2020), Colorado (in 2022 and 2023), New York (2023), Minnesota, Maine and California. All told, 30 states contemplated such bills in 2024. While it seems extremely unlikely that any federal right to repair legislation takes root during a second Trump administration, right to repair advocates are trying to keep the faith. In part because right to repair reform historically has broad, bipartisan support: Right to repair has been firmly bipartisan from the beginning,” says Kyle Wiens, the CEO of iFixit and an occasional contributor to WIRED who has testified before the House Committee on the Judiciary about repairability policy. “Im really not ‘doom and gloom’ on any of this. We feel very strong going into this. We have a really great working relationship with a lot of conservatives on the Hill, and were looking forward to continuing that.” Of course Trumpism (read: authoritarianism) doesnt really hew to traditional understandings of partisanship. The ideology professes to be populist, but broadly supports hugely unpopular policies across the spectrum most notably the coming disintegration of consumer protection and public safety standards, environmental reform, female bodily autonomy, and labor rights. Similarly, just because something has bipartisan appeal doesnt mean it has a chance in hell of surviving Trumpism (see: net neutrality). Trumpism is populist when its convenient. In reality, its a highly performative ideology that coddles corporate power at every conceivable opportunity (see: the appointment of telecom industry coddling Brendan Carr to the FCC). Trumpisms primary belief, buried under all the racism, sexism, and populist bullshit, is utterly unchecked wealth accumulation free of government oversight regardless of broader public or market harm. That doesnt gel particularly well with cracking down on corporate powers efforts to monopolize repair. So while I greatly admire Wiens and his work, Im not sure the optimism he expresses in Wired is particularly realistic: Even if the FTC takes a hard swing to the right, I don’t think that impacts right to repair too much,” Wiens says. The position is just popular and gaining steam, he says, and he anticipates a wave of repair friendly-policies will come to red states soon. “I think its critical mass. I think the time has come. People see the economic benefits for their community.” I mean yes, right to repair will remain hugely popular, because consumers across partisan ideologies dont like being bullied by big corporations. But the idea that a Republican Congress or FTC will take this issue seriously strikes me as wish-casting. The hope is a little brighter on the state level, where state laws continue to be passed. The problem is Ive yet to see states actually enforce any of them, and most corporations are simply ignoring the laws without penalty. With state and legal resources about to be strained to an historic limit by a flood of battles across everything from immigration to environmental law, right to repair could easily get lost in the mix. Thats not to say the right to repair movement wont continue to gain traction and popularity, that advocates should abandon any hope, or that this groundswell of public support cant be leveraged into expanded real-world change on the state or local level. But I do think keeping fascism from destroying democracy and the rule of law will overshadow more than a few reform efforts for the foreseeable future.

[Category: 1, donald trump, drm, hardware, parts pairing, right to repair, software, software locks, state laws]

— Hertz Continues To Be Hertz, Threatens Customer With Arrest For Using Too Many Of His ‘Unlimited’ Miles

 

at 11/21/24 12:09pm

Somehow, Hertz continues to be an ongoing concern, in both senses of the word. The company that made itself infamous by repeatedly trying to get innocent renters arrested for car theft tried to put all of that behind it with a $168 million class-action lawsuit settlement in 2022. The company then pledged to do better going forward. It didnt say how it was going to do this, since it apparently wasnt going to address underlying issues, like branches willingness to outsource vehicle retrieval to law enforcement and the extremely sloppy inventory control procedures that led to employees filing theft reports for vehicles that were parked in their parking lots. Since then, Hertz has found new ways to be awful, like charging Tesla renters fees to refill their returned rentals with gasoline. Then theres this incident, first reported by travel site One Mile at a Time, which details the ridiculous interaction one renter had with the company when a Hertz rep tried to charge him $10,000 for driving too many miles with his Unlimited Miles rental. Long story short, it would appear that someone rented a Hertz car for a month, and the rental allowed unlimited miles. The man drove 25,000 miles on the car over the course of that month, and the agency wasn’t happy about it. Given the number of miles driven, the Hertz representative stated that he would charge the man’s credit card an extra $10,000. As the interaction goes: Hertz representative: “You need to leave, sir.”Customer: “But you’re going to charge this to $10,000 to my credit?”Hertz representative: “Yes.”Customer: “When this literally, that’s not even allowed. I never signed…”Hertz representative: “You show me where it says I can’t charge it.”Customer: “Right here, it literally says I won’t get charged anything, it says miles allowed, free miles, it literally says to refer to this if there’s anything extra. I’ve never signed anything saying I can only go 100 miles a day, or anything like that, or that I would have to pay more.”Hertz representative: “But you also never signed anything saying you were going to be allowed to drive 25,000 miles in a month.”Customer: “No, unlimited is 100,000 miles.”Hertz representative: “No it is not.” While 25,000 miles seems like a literally impossible number of miles to drive in 30 days, nothing in the contract stated the unlimited miles the customer was entitled to was actually limited in any way. What made this worse is that the Hertz rep told the man he was going to ding his credit card for $10,000. Then he told him to leave. Understandably, the renter didnt leave, because doing so meant hed soon be out $10,000. When he refused to leave before this was resolved, the rep told him he was going to have him arrested. As One Mile at a Time points out, theres nothing in Hertz Unlimited Miles contracts that puts a limit on miles. Nor is there any clause that allows them to charge customers just because the company (or the rep handling the return) might feel the number of miles driven is excessive. Hertz is free to refuse to rent cars to customers whove put too many (whatever that means) miles on the vehicles theyve rented, but it cant pretend the contract says something it doesnt just because someone has accomplished the astounding feet of racking up four months worth of mileage in a single month. Hertz has since issued a statement about this incident. And, considering the source, its a pretty ok apology for an insanely ridiculous incident. “Customer satisfaction is our top priority at Hertz, and we sincerely regret this customer’s experience at one of our franchise locations,” Hertz’s statement reads. “Per the terms of the contract, the customer will not be billed for mileage. Our franchisee is addressing the employee’s conduct and reinforcing our customer service standards and policies to ensure they are understood and followed consistently across our locations.”  Never mind. Its not even really an apology. It simply says Hertz will not charge someone $10,000 for not violating the terms of the rental contract. That theres some addressing going on at the franchisee level means this sort of thing likely wont happen again at that particular branch, but its clear the company needs to do far more than react if it ever hopes to distance itself from the bad press the company and its employees seem to be intent on generating on a regular basis.

[Category: hertz, customer service, false arrest, rental cars, unlimited, unlimited miles]

— Daily Deal: Microsoft Windows 11 Pro

 

at 11/21/24 12:04pm

Microsoft Windows 11 Pro is designed with the modern professional in mind. Whether you are a developer who needs a secure platform, an artist seeking a seamless experience, or an entrepreneur needing to stay connected effortlessly, Windows 11 Pro is your solution. This version is designed for PCs that need a new license for Windows and meet the minimum system requirements for Windows 11. If your PC is running Windows 10 and you are unable to use Windows Update to install the free upgrade to Windows 11, you will not be able to install this version of Windows 11. Its on sale today (11/21/24) for $17.97. 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.

[Category: 1, daily deal]

— Substackerati’s ‘Grave Concerns’ About White House/Big Tech Collusion Have Disappeared With Elon’s Ascension

 

at 11/21/24 10:28am

For years, a vocal group of self-described contrarian Substackified pundits warned about a supposed censorship industrial complex involving collusion between the White House and social media companies to set content moderation policies. There was just one problem: it wasnt even close to true. Now, with Elon Musk owning ExTwitter and Donald Trump back in the White House, we have a situation that actually matches what those contrarian chroniclers claimed to fear: powerful tech moguls with direct ties to the administration in a position to influence online speech. Suddenly, the grave concerns about creeping authoritarianism have evaporated. The double standard couldnt be more blatant. So, I figured it was worth calling out the hypocrisy, and MSNBC kindly gave me the space to do so: The so-called Twitter Files, hyped by Elon Musk and handpicked journalists, were touted as smoking-gun proof of a vast conspiracy between social media and the government to violate the First Amendment. Testifying before Congress, these reporters called it a “grave threat” and evidence of “creeping authoritarianism.” Flash forward to today. Donald Trump is heading back to the White House. And Musk, owner of the social media company X (formerly Twitter), is a top donor, surrogate and soon-to-be government “efficiency” overseer. Musk has openly used his platform to boost Trump, attack his opponents and shape the political narrative. The collusion between government and Big Tech is no longer a conspiracy theory — it’s out in the open. Yet suddenly, all those grave concerns about the threat to democracy have evaporated. Most of the same voices who warned of shocking government overreach in the pre-Musk Twitter era are either silent about this turn of events or they’re in wild celebration of the Trump-Musk alliance. This reveals the issue wasn’t a matter of principle; it was a matter of party. The limited space in the MSNBC piece prevented me from delving into the additional hypocrisy around how swiftly Elon Musk banned a reporter and links related to the leaked JD Vance dossier. This action was an even more extreme version of what GOP pundits have baselessly claimed Twitter did with the New York Posts Hunter Biden laptop story. Yet, even as the completely exaggerated claims about what happened with Twitter and the Hunter laptop are still regularly brought up by the MAGA faithful, the story about Elon and the Vance dossier disappeared after, what, two days? But, really, the piece takes aim at the Elon/Trump enablers. The Sophist Substackerati who position themselves as brave truth tellers, standing up to government overreach: the Matt Taibbis, Michael Shellenbergers, and Bari Weisses of the world, who all seem to have forgotten what they were saying not too long ago about the hallucinated story of coziness between the White House and social media. Taibbi called it “a grave threat to people of all political persuasions.” Shellenberger called it “the shocking and disturbing emergence of State-sponsored censorship.” A reporter from The Free Press — a publication created by Bari Weiss (another Twitter Files reporter) — Rupa Subramanya, testified in one of these hearings warning that the American government was heading down a dangerous path of censorship, calling government connections to social media “creeping authoritarianism.” But, oh, how things have changed. Elon Musk still owns X. Donald Trump still owns Truth Social. These are two social media networks that can drive the news and conversations about important events in the world. Unlike before, when there was conjecture (without evidence) of grand conspiracies and connections between the White House and important social media companies, now it’s completely explicit and out in the open. Yet, all talk of the “grave threats” and “shocking and disturbing” connections between the White House and social media have disappeared entirely. Shellenberger has called the new administration “cathartic.” Taibbi has posted numerous articles celebrating the results of the election. The Free Press has a bunch of articles praising the new Trump administration and celebrating how the election was “a win for a new generation of builders like Elon Musk.” The “Twitter Files” pundits built their brands on a false narrative of anti-establishment rebellion against the “elite” trying to control social media. But when faced with the real thing, they’re too busy high-fiving each other to care. Their “grave concerns” about government collusion with Big Tech have suddenly evaporated now that the administration and the tech mogul are their ideological allies. Or, as I note: Turns out for the “Twitter Files” crew, “creeping authoritarianism” isn’t so creepy when it’s your team doing the creeping. There’s a lot more in the piece, but I want to point out why it’s so important to call out this hypocrisy. I know that there are a bunch of cynical “too savvy for school” folks who always respond to things like this by saying “what, it surprises you that they were full of shit?” No, it doesn’t surprise me at all. I’ve been calling out this kind of nonsense for years. But people who don’t follow this stuff closely don’t know this. There are so many times where I hear something these nonsense peddlers pushed over and over again pop up in the mainstream media or among random people who just assume what they’re saying is accurate. Calling out the hypocrisy isn’t to impact those in the Intellectual Derp Web. They have their captured audiences and have made it clear they don’t give a shit. But it’s important to remind everyone else what the grift is here. The cluelessness, the gaslighting, and the utter nonsense they spent years spreading for clout. Some of us recognize it for what it was. We need to keep telling people and reminding people so that everyone else knows it’s bullshit too.

[Category: truth social, twitter, x, bari weiss, censorship industrial complex, contrarians, donald trump, elon musk, hypocrisy, matt taibbi, michael shellenberger, nonsense peddlers]

— Net Neutrality Is Dead As A Doornail Under Trump 2.0

 

at 11/21/24 6:24am

While the concept has been endlessly demonized by right wing media (working hand in moist hand with shitty companies like AT&T and Comcast), net neutrality was always well intentioned. It was, in essence, some inconsistent, rarely enforced rules to try and prevent regional broadband monopolies from abusing their regional broadband monopolies to rip off consumers and harm competition. The idea was portrayed as some sort of diabolical, extremist bogeyman by your shitty local cable company and Republicans. It wasnt as good as a fix for broken U.S. broadband markets as taking direct aim at telecom monopoly power with serious antitrust reform, but in a country where Congress is literally too corrupt to pass the most basic of meaningful reforms, it was one of the only options on the table. But the focus on net neutrality specifically has proven to be a bit of a distraction from the real fight: whether or not you think the government has a responsibility to protect the public and markets from massive, predatory telecom monopolies bone-grafted to our intelligence gathering systems. Time and time again, Republicans (and some Democrats), working hand in hand with telecom industry lobbyists, decided that the best approach is to let a company like Comcast or AT&T not only do whatever it wants, but dictate the entire contours of federal and state telecom policy. That means banning community broadband. That means ripping off the poor. That means no coherent consumer protection. No real merger review. Lots of tax cuts and subsidies in exchange for doing nothing. You know, for freedom. And innovation. And free markets. The result has historically been U.S. consumers paying some of the highest prices in the developed world for patchy, slow broadband with some of the worst customer service of any industry in America (quite a feat). And when the government tries to do absolutely anything differently, Republicans, some centrist Democrats, the courts, and a corporate press treat it as an act of radical overreach. Your Dead Aunt Opposed Net Neutrality You might recall that the FCCs 2015 net neutrality rules were stripped away in 2017 during Trumps first term, when his agency, led by Ajit Pai and Brendan Carr, turned a blind eye as telecom giants used fake and dead people to pretend eliminating the rules had public support (it didnt, net neutrality protections actually have very broad, bipartisan support across a majority of the electorate). The rules were restored again this year by the Biden FCC, only to be immediately put on ice by the Trumplican-stocked 5th Circuit, 6th Circuit, and Supreme Court which are trying to declare (quite successfully) that all consumer protection is basically now illegal (I wish I was being hyperbolic). Even if the courts dont crush the FCCs attempted restoration of the rules, Trumps appointment of Brendan Carr to the FCC is all but certain to deliver a killing blow to federal net neutrality protections. And not just net neutrality: Carrs guaranteed to put an end to all consumer protection, whether it involves policing usage caps, stopping racism in fiber deployment, keeping your cable company from ripping you off, or holding your wireless provider semi-accountable for spying on your every movement. Again, the conversation gets fixated on net neutrality, but this is really a debate about whether the federal government plays a role in protecting markets and consumers from giant, lumbering monopolies dead set on using their size and leverage to rip you off and quash competition. The feds never did a particularly good job on this front, but at least there was, as with net neutrality, a fleeting effort. Any Pretense Of Giving A Shit Is Dead Now Not all is lost: Trumps 2017 net neutrality repeal not only tried to block the FCC from broadband consumer protection, they tried to ban states from protecting consumers or passing their own state-level net neutrality rules. But courts have repeatedly ruled that if the federal government abdicates its responsibilities on consumer protection, they cant step in and tell states what to do. The problem: once the unholy alliance of authoritarianism and corporate power get done corrupting Congress and federal regulators (with the help of a Supreme Court and both houses of Congress), where exactly do you think theyre going to direct their vast resources and legal attention? State rights (so seemingly precious to Republican ideology once upon a time), of course. With the planned Trumpist dismantling of federal governance, the fights over consumer protection, immigration, environmental law, public safety, etc., will be heading to the state level and clogging the courts in historic fashion. Anybody who thinks even well-resourced states like California and Washington will have the time and resources for wonky net neutrality policy battles are probably clowning themselves. So for now, the battle over net neutrality and any sort of consistent federal consumer protection standards are dead as a doornail. Thanks to voters deluded and misinformed into believing they were voting for populist reform or getting an upgrade to the mean old status quo. Thats not to say people shouldnt stop fighting. Though they will need to pick the most efficient targets. The key one in telecom being consolidated telecom monopoly power. Theres a huge grass roots U.S. movement toward highly-localized, community owned and operated community owned broadband networks; and if youre looking for a place where you can help, supporting them is a great start. States may not pick net neutrality fights they cant win, but they wont give up on broadband and wireless consumer protection entirely. Theyll just be sporadic, be more hesitant than ever, and take longer than ever due to a court system flooded with well-funded challenges to any effort to hold corporations accountable across every industry that touches every last aspect of your daily life. There are a lot of hard lessons coming (and not just for Trumpers) about the importance of a coherent, federal, regulatory state. Hopefully those lessons come in handy during the attempt to rebuild functioning federal governance, assuming this hot mess of an oligarchic kakistocracy makes it out the other side of this tunnel of violent idiocy intact.

[Category: 1, authoritarian, broadband, consumers, corruption, fcc, supreme court, telecom]

— Molson Coors Appeals The $56 Million Judgement In Stone Brewing Case

 

at 11/20/24 9:01pm

When we and others discussed the massive trademark lawsuit between Molson Coors, makers of Keystone beer amongst other brands, and Stone Brewing, it was billed as a David versus Goliath scenario. Now, if I remember my bible studies correctly, once David slung a couple of well-placed rocks into Goliaths forehead, Goliath didnt then get up and ask for another go of it (mostly due to David removing Goliaths head from his body, I assume). But here, Molson Coors is doing exactly that. After being hit with a $56 million judgement by the jury in the case, Molson Coors asked for the judgement to either be thrown out or that a new trial be spun up. Both of those requests were denied by the court at the time, along with a denial of Stone Brewings request for a new trial because it thought Molson Coors hadnt been hit with enough damages. Now, its important to keep in mind that this trademark action was over actions taken by Molson Coors, such as advertising and trade dress changes that emphasized the Stone in Keystone, and our analysis that these changes constituting trademark infringement being very questionable. I was a beer-drinker for nearly two decades (Im in my 40s now, so now Im a snooty wine/whisky drinker) and it strains credulity to think that anyone is going to be confused between Keystone beer and Stone Brewing beer merely because the former changed the font size of stone on its packaging. There were some other issues as part of the suit, such as parts of the trade dress referring only to how many stones were in a 15-pack and the like, but most of this rested on the prominence of stone on the packaging. Well, Molson Coors is appealing, with its reasoning being mostly along those same lines. Molson Coors argued before a panel of Ninth Circuit judges Tuesday that the decision in a trademark dispute against Stone Brewing was based on faulty legal reasoning and asked the panel to reverse the lower court verdict. “No reasonably prudent beer consumer would ever confuse the two, especially because Stone IPA is priced at three to four times the price of the economy Keystone Light,” said Quinn Emanuel Urquhart & Sullivan attorney Kathleen Sullivan, who represents Molson Coors. Sullivan also said no rebrand ever took place to capitalize of Stone Brewing’s name, calling her client’s change in design a “trivial” packaging change — not a rebrand, but a “refresh.” “There’s not a lot of real estate in marketing, so sometimes you have to split things into two lines.” Now, as the post notes, some members of the panel of judges have already starting pushing back on some of Molson Coors argument. And some of that pushback is pretty concerning if you believe that there should be some measure of sanity in trademark law. Heres an example. U.S. Circuit Judge Susan P. Graber, a Bill Clinton appointee, pushed back. She noted that after the change, “stone” was much more prominent on the can, calling into question the company’s motivations. Sullivan dismissed this reasoning. “If the Hard Rock Cafe starts italicizing rock, that doesnt mean it now infringes Dwayne Johnson — The Rocks — trademark,” she countered. “Well, it might be if he owns a restaurant,” chimed in U.S. Circuit Judge Patrick J. Bumatay, a Donald Trump appointee. Thats crazy. You have to really do some mental gymnastics to imagine that any kind of customer confusion would occur with that sort of change between two brands that have achieved the kind of fame both The Hard Rock Cafe and Dwayne The Rock Johnson have gained. And the same is true in this case. Both Keystone and Stone Brewing are established, well known brands in the beer industry. So much so, actually, that the whole David versus Goliath trope that we all engaged in is probably an analogy misfire. Stone Brewing might be a David to Molson Coors Goliath, I suppose, but Stone Brewing is the Goliath to most of the rest of the craft brewing industry. Sure, Molson makes billions in revenue per year, but Stone Brewing makes hundreds of millions in revenue itself. Compare that with another established craft beer player, such as Rogue Ales & Spirits, which brings in about $60 million. Given the notoriety of both brands, you would think there would be very real customer confusion that Stone Brewing could have brought as trial evidence in a voluminous way. Stone Brewing attempted to bring some of that to trial with studies and some social media posts, but I would say it was all rather weak given the context. Especially given the timeline at play here, which is another point that Molson Coors raised on appeal. Molson Coors also says the case never should have gone to trial because Stone Brewing missed its window to sue. Stone Brewing sent a cease and desist letter to Molson Coors in 2010 over its use of the terms “stone,” “stones” and “hold my stones,” but didn’t file a complaint until 2017 when it claims to have begun suffering from the rebranded cans. “Once we werent sued by 2014, we were entitled to think they didnt sue us,” said Sullivan, referring to the statute of limitations. The laches defense, in other words. If were going by California law here, as I think we are, the analogous state law based on precedent would be a 4 year period of reasonable time to file suit, with anything beyond that being an unreasonable delay. An example of that precedent would be Pinkette Clothing, Inc. v. Cosmetic Warriors Limited, where this same court said four years was the line in the sand. Given some of the commentary by the panel of judges, I have no idea how likely it is that Molson Coors gets any kind of win here. And thats unfortunate, because none of this sounds like real trademark infringement to this formerly beer-soaked writer.

[Category: 1, molson coors, stone brewing, 9th circuit, beer, stone, trademark]

— Texas Ballot Measure Decriminalizes Marijuana Possession, Says ‘Odor Of Marijuana’ Is No Longer Probable Cause

 

at 11/20/24 4:44pm

It looks like Dallas, Texas residents arent going to wait around for the courts to react to marijuana legalization. Theyve (overwhelmingly) decided to answer one of the legal questions legalization creates by adding the answer to the ballot measure itself. (h/t Jacob Sullum, Reason) Shall the Dallas City Charter be amended by adding a new section in Chapter XXIV that reforms marijuana possession enforcement by prohibiting the Dallas Police Department from making arrests or issuing citations for marijuana possession or considering the odor of marijuana as probable cause for search or seizure, except as part of a violent felony or high priority narcotics felony investigation; making enforcement of Class A (currently, two to four ounces) and Class B (currently, up to two ounces) misdemeanor marijuana possession the Dallas Police Department’s lowest enforcement priority; and prohibiting city funds or personnel from being used to test cannabis-related substances to determine whether a substance meets the legal definition of marijuana, except in limited circumstances. Thats going to streamline things. Normally, legalization is followed by lengthy legal battles arising from arrests/searches initiated by cops claiming to have detected the odor of a completely legal substance. Sooner or later, the courts usually get this right (but not always!) and tell law enforcement the obvious: smelling something legal cannot possibly be considered probable cause to believe a crime has taken place and/or contraband will be discovered if a person or place is searched. With this ballot measure, which was approved by nearly 67% of voters, this handy excuse for warrantless searches is no longer an option for Dallas police officers. And it also takes away one of their favorite things to do: make low-level drug arrests for possession of extremely small amounts of marijuana. So, of course, cops are already complaining about this: However, critics like former Dallas Police Chief Eddie Garcia, say that four ounces is an amount used by many drug dealers. In August, he told city leaders that Dallas police officers already don’t enforce possession under two ounces, and warned increasing it to four ounces wouldn’t help lower crime. And so are some members of the city council, who seem to believe no issue should be left solely in the hands of their constituents. Dallas Councilmember Cara Mendelsohn said during a briefing in August the measure would benefit “drug dealers and drug houses.” “If people would like to decriminalize or legalize marijuana, they need to be talking to their state reps and state senators, their congressmen and their (U.S.) senators,” Mendelsohn said. What a take. And a completely predictable response from someone who doesnt agree with the passed ballot measure. Politicians love to talk up the power of the constituency when theyre winning elections but immediately claim the people are too stupid to participate in governance when they pass measures these politicians dont like. The bigger problem, though, is Ken Paxton, the states attorney general, who is more than willing to take away things Texas voters have said they actually wanted: Now that Dallas voters have approved to decriminalize larger amounts of marijuana, the city could likely face a lawsuit from the state. Texas Attorney General Ken Paxton has sued other Texas municipalities for similar attempts to make marijuana more readily available. That includes Denton, Austin and three other Texas cities. Yet another official who likes the democratic process when things go his way, but is more than willing to remove the democracy from the democratic process if he doesnt like the outcome. He sounds exactly like the president-elect, who spent most of his campaign telling supporters this would be the most fraudulent election ever but seems to have forgotten all about this allegedly widespread voter fraud the moment he won the popular vote. Well have to see how long it takes for Dallas PD leadership to pass this information on to officers. Chances are, officers will continue to use the odor of marijuana excuse to engage in warrantless searches until one of them ends up in court. It always seems to take forever for messages like this to sink in when those that need to hear it the most are the least interested in hearing it.

[Category: 1, 4th amendment, dallas, dallas police department, drug legalization, ken paxton, probable cause, texas]

— Techdirt Podcast Episode 405: Regulating Speech In An Age Of Fake News

 

at 11/20/24 2:30pm

Support us on Patreon » Weve got another cross-post for you this week, and this time its also a live panel recording. Recently, Mike joined a panel at Boston University Questrom School of Business which was recorded for WBURs Is Business Broken? podcast, alongside professors Marshall Van Alstyne and Nadine Strossen, and moderated by host Curt Nickisch. The discussion is all about Section 230 specifically and the regulation of speech more broadly, and you can listen to the whole thing here on this weeks episode. You can also download this episode directly in MP3 format. Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts or Spotify, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

[Category: 1, fake news, free speech, podcast, section 230]

— It’s Perfectly Fine To Patent Inventions Obtained By Immoral Means Says European Patent Office

 

at 11/20/24 1:10pm

Despite widespread beliefs to the contrary, patents are not a measure of innovation, nor are they needed for companies to thrive — something even Elon Musk understands. But one aspect of patents that is rarely considered is their morality. The European Patent Office’s Board of Appeal wrestled with this issue in an interesting case involving the plant extract simalikalactone E and its use to treat malaria. As the patent admits: “simalikalactone E (SkE) was isolated from Quassia amara (Simaroubaceae), a medicinal plant widely used in the Amazon for the treatment of malaria.” In other words, the use of the plant extract to treat malaria was already known among Amazonian peoples, who naturally did not try to patent it. Related to this, an objection was raised to the patent, on the grounds that it was contrary to “morality”, as defined by Article 53 of the European Patent Convention: European patents shall not be granted in respect of: (a) inventions the commercial exploitation of which would be contrary to ordre public or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States; The IPKat has a good explanation of the reasoning behind the objection: the Opponent argued that the invention represented biopiracy on behalf of the patentee against the indigenous people involved in the original research. Specifically, the Opponent submitted that the interactions with the indigenous communities had been conducted in an immoral fashion, involving deception and an abuse of trust. According to the Opponent, the members of the communities involved had not been fully and transparently informed of the nature of the research project, its objectives, the filing of the patent, and other risks and benefits of the project to community members and their knowledge. As such, the Opponent argued, the IP rights of the communities over their traditional knowledge had been violated. The Opponent submitted that the deception and breach of trust displayed was contrary to ordre public and would jeopardize relations between indigenous and local communities and researchers. However, the EPO’s Board of Appeal rejected this argument for an interesting reason: The exclusion to patentability provided for in Article 53(a) EPC requires the stated offense to morality to reside in the commercial exploitation of the claimed invention. The claims of the patent were directed to the formula of the antimalarial, a process of manufacturing the antimalarial and its use in therapy. Given the dire need for effective antimalarial medication, the Board of Appeal found that the commercial exploitation of these inventions would not be contrary to public morality (on the contrary, they would be beneficial to society). Specifically, the Board of Appeal made a clear distinction between the morality of the commercial exploitation of an invention, and the morality of how the invention itself occurred (r.2.14). That is, patents can be excluded if their commercial exploitation would be immoral, but it doesn’t matter if the way the invention claimed in the patent was made turned out to be immoral. European patent law simply doesn’t care about that aspect. Fortunately, that’s not the end of this particular story, as the IPKat post explains: Questions over the morality of scientific discovery must therefore be dealt with in a different forum than the patent office. In this case, despite the decision of the Board of Appeal, the European patent in question appears to have lapsed on all member states due to failure to pay renewal fees. The US case has similarly been abandoned. It thus appears that the substantial political pressures on the [patent-holder, the French Institute for Development Research] outside the patent system have impacted their desire and/or ability to commercialise the invention. It’s good that this kind of pressure works, but it would be better if the patent world cared more about the morality of inventors’ actions in the first place. Follow me @glynmoody on Bluesky and on Mastodon.

[Category: 1, antimalarial, biopiracy, elon musk, epo, european patent office, exploitation, france, innovation, inventors, malaria, morality, pressure]

— Fifth Circuit Tells MAGA Hat-Wearing Student That Counterspeech Isn’t ‘Racial Harassment’

 

at 11/20/24 11:47am

It should be clear by now that being a fan of one particular politician doesnt make you a member of a protected group. Its just a stupid as cops claiming they should be given more rights and protections because people just dont seem to be showering them with unconditional love in recent years. Wearing clothing that youre hoping will provoke a response (either supportive or otherwise) doesnt make you a victim of actionable harassment just because it didnt trigger the responses you hoped it would. Triggered MAGA fan B.W. (a minor, hence the initials) sued the Austin, Texas Independent School District (AISD) after his MAGA gear provoked completely expected responses, like other students (and even some faculty members) calling him a bigot and a racist and suggesting he might be a fan of the KKK. B.W.s parents ultimately pulled him from the school after belatedly discovering that their sons attempted owning of the libs had backfired. The lawsuit was brought under Title VI, a legal authority that forbids harassment based on the victims race, color, or national origin. The complaint (now in its fourth amended version) tried to claim B.W. was being harassed because he was white, rather than because of his repeated displays of support for Donald Trump. This obviously wasnt pleasant for B.W., but one can assume he hoped to trigger some libs, and the libs were indeed triggered, leading to this sort of thing. From the decision [PDF], which is written by Judge Priscilla Richman, whose judicial record would seem to indicate people might have expected her to come down on the other side of this issue. B.W.’s operative Complaint alleged that a math class aide “repeatedly called B.W. ‘Whitey,’” and a group of students shouted at him and other Cross Country teammates, “here are all the white boys!” A teacher asked him if he “enjoyed his White Gospel Music.” A substitute teacher told B.W., “I will not have a white man talk to me about gender issues!” A teacher told B.W. that she was “getting concerned about how many white people there are.” A student told B.W., “America is only for white people,” and another student “repeat[ed] the evils of the white race in American history” to B.W. While this probably wasnt pleasant for B.W., it really doesnt sound like the sort of harassment that would result in a lawsuit. This is actually pretty mild, at least in terms of whats recounted at the beginning of the decision. (Theres more in the lengthy dissent, which involves the back nine (judges) participating in this en banc hearing, who disagreed with the majority decision written by Richman.) It doesnt matter that one student created a meme that made B.W. look like a KKK member. Nor does it matter that B.W. was regularly called a racist by other students (who also allegedly repeatedly flicked him off and cussed at him). What matters here is what the law says, in terms of harassment under Title VI. And B.W.s attempt to secure a victory under this legal statute was immediately undercut by his own lawsuit. (Emphasis in the original.) B.W.’s own pleadings, which we “must accept as true,” assert that the meme was motivated by politics and not race. B.W.’s complaint specifically alleges that “D.K. admitted to the school that he made the KKK meme about B.W. because D.K.’s father told him not [to] be friends with anyone who was a Conservative.” [] Being called a racist is not the equivalent of being harassed based on the harassment victim’s race. Being accused of racism says nothing about the race of the accused. A racist or alleged racist could be a person of virtually any color. The pejorative term is used because of the accused’s own alleged views about race, not because of the accused’s race. The “flicking off” and “cussed at” allegations, read in context, were alleged to have been motivated by B.W.’s “Conservative and Republican political opinions” and his support for Donald Trump. The complaint does not allege they were racially motivated. As awful as this is (I mean, at least in terms of faculty members participating in the dogpiling), this simply isnt actionable. MAGA is not a race, color, or religion, even though it definitely draws more people of one specific race and color and whose acolytes often act as though supporting Donald Trump is an expression of Christian faith. The majority opinion affirming the lower courts dismissal of the suit is five pages. The dissents are nearly five times a long (24 pages). And even if I dont agree harassing someone over their MAGA gear is actionable under Title VI, the dissenting opinions make some decent points about how MAGA could be a stand-in for white, especially when applied in this fashion to other races and competing political beliefs. First, the dissent says theres at least some evidence hateful acts were directed at B.K. because of his race, especially when his pleadings are accepted as true during this stage of the legal proceedings. In his complaint, B.W. includes recurrent incidents of harassment that explicitly reference his race. He alleges that students repeatedly recited the “evils of the white race” to B.W.; that students ran into the locker room and proclaimed (with B.W. present) “here are all the white boys!”; and that students daily abused B.W. both physically and verbally. Worst of all, B.W. alleges that another student beat him bloody and then bragged to the school that he had done so “because B.W. was white.” B.W. alleges that he was subjected to daily harassment from his classmates following that public pronouncement of racial animus. Adding insult to B.W.’s obvious physical injuries, much of the harassment came from school teachers. Then theres the KKK meme, which likely would not have been created if B.K. was not white. And thats problematic, because it seems the majority might have sided with B.K. if he hadnt been white and subject to similar harassment due to perceived race. The KKK meme is further evidence of race-based harassment. Groups like the KKK and the Nazis are white-supremacist organizations that generally have a racial association tied to membership. Thus, a meme depicting B.W. as a member of the KKK has a racial component, particularly in the context of the other overtly race-based harassment that B.W. alleges occurred here. When an individual is accused of membership in a politically odious organization associated with that individual’s protected characteristic, such an accusation amounts to stereotyping based on that protected characteristic. Suppose instead that a student made a meme of an Afghan classmate as a member of the Taliban or Al Qaeda. Such a meme obviously implicates the student’s protected characteristics. But, ultimately, theres another factor in play here elements admitted in B.K.s own pleadings: he wore MAGA gear, something that closely aligned him with the views expressed by MAGA figureheads, many of which are racists, bigots, and in far too many cases closely aligned with white nationalists. In my opinion, thats the wild card. It would be far easier to prove the harassment was solely linked to B.K. being white if he hadnt chose to repeatedly wear shirts and hats that linked him with a bunch of other (similarly white) bigots. If the harassment had occurred without this factor in play, it would clearly have been solely racially-motivated. But B.K. wore stuff he knew would inevitably provoke negative responses. And then he sued when this gambit paid off. It is inexcusable that staff members participated in the alleged bullying, and perhaps theres still something under state law that might earn B.K. a win, but under Title VI, its just not going to work because the plaintiffs admitted political beliefs dont make him part of a protected group.

[Category: 1, 1st amendment, 5th circuit, free speech, harassment, maga, priscilla richman, title vi]

— Dear Senators Klobuchar & Lujan: Now Do You See Why Letting HHS Censor “Misinformation” Is A Terrible Idea?

 

at 11/20/24 10:29am

You have likely heard that Donald Trump has nominated conspiracy theorist Robert F. Kennedy Jr. to be his next Secretary of Health and Human Services. This is dangerous and cruel for a very long list of reasons, but his nomination also exposes the critical flaws in a bill proposed by Senators Amy Klobuchar and Ben Ray Lujan just a few years ago. In 2021, Senators Klobuchar and Lujan introduced a bill that would have given the Secretary of Health and Human Services the power to unilaterally declare what constitutes health misinformation online. Under the proposed law, a new exemption to Section 230 would be created for any content deemed misinformation by the HHS Secretary, which could open tech platforms up to lawsuits, creating immense pressure to block such content. At the time, the bill seemed misguided and unconstitutional. In the hands of an anti-science zealot like RFK Jr. as HHS Secretary, it would be catastrophic. From the bill: Not later than 30 days after the date of enactment of this Act, the Secretary of Health and Human Services, in consultation with the heads of other relevant Federal agencies and outside experts determined appropriate by the Secretary, shall issue guidance regarding what constitutes health misinformation… And then, any site hosting content so designated would be “treated as a publisher or speaker” of such “health misinformation,” effectively opening them up to lawsuits. If that bill had become law, RFK Jr. could declare that factual information debunking his anti-vaccine conspiracy theories is misinformation. He could threaten lawsuits, or just unleash others to sue, to force social media platforms to silence anyone who corrects his dangerous nonsense about vaccines and autism. Thankfully, Klobuchar and Lujans bill went nowhere, and for good reason. Giving a single political official the power to define misinformation runs counter to core First Amendment principles. Whats deemed misinformation could change radically from one administration to the next, creating a censorship regime beholden to electoral whims. The RFK Jr. nomination illustrates exactly why we continually call out these kinds of bills. Because this is not the kind of power you want to give to the government (nor should you be able to under the First Amendment). And if you don’t think that RFK Jr. wouldn’t take advantage of such a law had it been passed, you haven’t been paying attention. While RFK Jr. has been cosplaying as a “free speech” supporter of late, the reality is that he has a long and problematic history of trying to suppress speech and to punish people for their speech. Even his latest “free speech crusade” is really a series of censorial failed lawsuits against social media companies for using their free speech rights to moderate his conspiracy theory nonsense. Even the very Trumpist Fifth Circuit just laughed one of his cases out of court a couple weeks ago. But there’s an even longer, more disturbing history as well. A decade ago, he talked about how he believes his political opponents should be jailed for their speech, even calling them war criminals and accusing them of “treason.” Somewhat hilariously, at the time, he was talking about those who denied climate change and billionaires “impoverishing the rest of us.” “They are enjoying making themselves billionaires by impoverishing the rest of us. Do I think they should be in jail, I think they should be enjoying three hots and a cot at the Hague with all the other war criminals,” Kennedy declared. He might want to take a look at his new boss and the crew he’s hanging around with, given that Donald Trump has repeatedly denied climate change exists and promised to ramp up fossil fuel production in the country. And if we’re talking about billionaires impoverishing the rest of us, just take a look around you, Bobby. Either way, the point is that RFK Jr. has a long history of deeply authoritarian and censorial instincts. He’s not a free speech supporter by any means. If Klobuchar and Lujan’s bill had been law, we would have just handed him the ability to censor any pushback to his dangerous views. So, next time, can people actually listen to us when we raise the alarm about how problematic censorial bills are, and how they would be abused in the wrong hands?

[Category: 1, 1st amendment, amy klobuchar, ben ray lujan, conspiracy theories, disinformation, health and human services, health misinformation, rfk jr., section 230]

— Press Glosses Over Fact Trump’s FCC Pick Will Decimate Consumer Protection, Media Consolidation Limits

 

at 11/20/24 6:24am

We noted earlier this week how Trump had unsurprisingly picked Brendan Carr to head the FCC. We also pointed out how Carrs policies are utterly indistinguishable from the interests of unpopular telecom and media giants like Comcast and AT&T. Hes going to demolish whatevers left of the FCCs consumer protection standards and media consolidation limits, and hes not going to be subtle about it. Carr is the dictionary definition of regulatory capture. Hes going to deliver the final killing blow to net neutrality (if the Trump-stacked courts dont get to it first). Hes also going to take a hatchet to the FCC’s recent inquiry into shitty broadband usage caps, efforts to stop broadband “redlining” (read: racism in fiber deployment), good faith efforts to help the poor afford broadband, and efforts to stop your cable, phone, wireless, or broadband provider from ripping you off with shitty fees. But as I dug through the mainstream reporting on Carrs appointment, very few outlets seemed interested in making any of that clear to readers. The New York Times and Washington Post, for example, kept the focus largely on Carrs animosity toward big tech companies for their censorship of Conservatives (read: doing the absolute bare minimum to thwart racist assholes and right wing propaganda on the internet). The fact that Carrs primary function at the FCC will be to coddle unpopular telecom and media giants in about thirty different ways barely warrants a mention. Over at the Cox Communications owned Atlanta Journal Constitution (whose owners will benefit from a Carr appointment in several different ways), Carrs appointment is framed like this: Were a decade into Trumpism, and major outlets are still putting false claims unchallenged in headlines. Why do you think that is, exactly? Readers told me the Atlanta Journal Constitution just reprinted the already soft WAPO story on Carrs appointment, but cut off much of the second half where consumer groups illustrate that the headline they chose is demonstrably false. Most of the rest of the mainstream coverage wasnt much better. Fox News, of course, chose to focus on the exciting new racist potential of the Carr pick, but they screwed up the sub-headline to make it sound like he actually supports diversity and inclusion initiatives: USAToday parrots claims that Carr is fighting for free speech, but cant be bothered to mention that that (1) isnt fucking true, and (2) that his primary role will be to gut consumer protections like net neutrality. Reuters similarly cant be bothered to mention the risk Carr poses to consumer protection. In Politico, Carrs looming assault on telecom consumer protection warrants one sad paragraph. Im sure there was some selective editing at play, but several major telecom and media consumer rights folks went out of their way to help media outlets highlight how Carr is a nice guy (see, in order, NPR, CNN, NYT), which Im sure will be helpful as he happily demolishes twenty-five years of consumer advocacy policy work and threatens media giants for criticizing authoritarian leadership: If the public doesnt sense adequate alarm from experts whose entire careers have been in consumer and media market protection, theyre not going to be alarmed. I understand the desire for some civility, but this is not an ordinary administration. These are fascists who are going to steadily disassemble the entirety of federal consumer protection and corporate oversight over drinks and giggles. Meanwhile, yes, Carrs mindless authoritarian animosity to big tech is absolutely worth discussing, as are his threats to pull the broadcast licenses of companies that criticize Trump (even though that will be no easy feat, even with a Trump-stocked court and muted FCC authority). But his primary goal at the FCC will be to be as errand boy to historically unpopular media and telecom giants, and downplaying (or ignoring) that fact does Carr and his industry buddies no shortage of favors. Meanwhile if you thought mainstream press coverage during this last election season was feckless, authoritarian-normalizing mush, you aint seen nothin yet.

[Category: 1, brendan carr, broadband, consumer protection, deregulation, fcc, high speed internet, media, monopoly, policy, telecom]

As of 11/22/24 11:34pm. Last new 11/22/24 5:58pm.