For years, we've pointed to the series of ridiculous trademark lawsuits filed against Google over Adwords, and wondered when it would finally be settled and understood that advertising on a third party site against a competitor's trademark is just good marketing, not trademark infringement. To bring up an analogy, many of us are used to supermarkets that display coupons near competing products -- or where you get handed competing coupons printed out at checkout. This is the exact same concept. It's perfectly reasonably that if you're searching for a certain brand name, a competing company may seek to buy clearly marked advertisements that attempt to offer you a better deal. There's no confusion by the consumer and no "dilution" of the original brand. It's just good competition. Even more bizarre is the fact that these lawsuits targeted Google, rather than the advertiser directly. After all, Google just provides the platform. If an ad is actually confusing to users, then the only trademark claim would be against the company who actually created the confusing ad, not the platform that hosts it.

Back in 2005, with the high profile Geico case, we had hoped that the court would set the record straight on all this, but it chose to punt on the key questions, and Google and Geico eventually settled, which only resulted in a bunch more similar lawsuits. Perhaps the most well known was the one that Rosetta Stone filed back in 2009 (the ninth such case). That case has been kicking around for years, with various ups and downs. Rosetta Stone even went so far as to support SOPA's predecessor, COICA, in the hopes that it would be useful in making Google liable for the ads others placed on its site.

We had thought that a clear headed judge would point out the obvious, but instead, we got a massively confused ruling that was quite troubling in which it was unclear if the judge really understood the issues at play. Given all of this, it's not a huge surprise that Google figured out a way to settle the case out of court. While it probably had to pay a small sum to make that happen, Eric Goldman notes, nothing in what's been announced suggests that Google agreed to change any of its practices. He also notes that, at this point, nearly every such case against Google has ended in a Google win or quiet settlement in which Google's policies are left intact:

Irrespective of the specific settlement terms, ending this case is a strategic win for Google because it takes out the last “major” US trademark owner challenger to AdWords.  Combined with the recent dismissal of the Jurin lawsuit, Google is now down to two pending US trademark lawsuits over AdWords: CYBERsitter and Home Decor Center.  Despite CYBERsitter’s recent intermediate “win,” I don’t think either of the two remaining lawsuits are dangerous to Google.  As a result, Google is tantalizingly close to successfully running the table on all of the US trademark challenges to its AdWords practices.  When this happens, Google will have legitimized the billions of dollars of revenues it makes by selling trademarked keywords in AdWords.

Eric may be slightly more optimistic on this than I am. Having seen so many of these cases come and go, I still expect others to jump in, in the hopes of getting offered a similar "settlement" just to go away. Hopefully one of the remaining cases ends in a clear judicial smackdown against companies who are trying to stretch trademark law well beyond its intended purpose.

The human genome contains an incredible amount of information that we are only starting to parse. Sequencing large amounts of DNA is getting cheaper and faster, so it's only a matter of time before we'll be able to collect a vast amount of genetic information and connect it with practical medical diagnoses and treatments. Here are just a few projects working on decoding our genetic blueprints.

• The international ENCODE project has been looking at the human genome to try to figure out what all the nucleotides do. Less than 2% of the genome is used for making proteins, and we're just beginning to discover that about 80% of the genome is biologically active and isn't just "junk" DNA. [url]
• The Genographic Project is asking the general public to participate in a genome analysis experiment to gather a broad sampling of DNA data. The results will be anonymous (but they'll have your DNA...?) and dedicated to the public domain. [url]
• The 1000 Genomes Project currently claims to have the world's largest, most detailed catalog of human genetic variation. The database includes sequenced genomes from over 1,092 people and should help medical researchers develop tests for genetic diseases. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Over the last year or so, there's been concern about Skype's commitment to privacy following its acquisition by Microsoft. Now a situation in the Netherlands is serving to renew those fears. As highlighted by Slashdot, it appears that Skype handed over information on a 16-year-old user to a private information technology firm that was investigating some denial of service attacks against PayPal.

The security firm, iSIGHT, was hired by PayPal to investigate the attacks, and an employee of the company reached out to Skype seeking information about one user who he thought might be involved. And Skype coughed up the info -- including username, real name, email address and home address -- no questions asked. As the article notes, there was no court order or anything like that. Just a guy from a private company asking and Skype said, "sure, here's all the info."

There are questions about whether this move violated some European privacy directives. At the very least it seems clear that it violated Skype's own policies, which include not providing customer data unless required by law, or if official law enforcement is involved. In this case, neither thing is true. One hopes that this is just a one-off mistake by Skype, but it's worrying nonetheless.

We discussed recently how George Lucas relinquished control of the Star Wars franchise, selling it to Disney. As Leigh noted in that piece, critics have long chastised Lucas for the control he exerted over his films, as well as the meddling he did on the classics so many hold dear. While that criticism is certainly valid, one area where Lucas seemed to be open -- in many ways bucking the Hollywood trend -- was with fan-made content, such as fan films and fan fiction. In fact, Lucasfilm to a great extent embraced fan fiction, even going so far as to hold contests for such content. The fact that Lucasfilm gained rights ownership of those fan-made films led to some criticism, but at least the company wasn't suing the jedi tunics off of its own fans.
These aren't the defendants you're looking for.
Image source: CC BY 2.0
But now some folks are wondering about the fate of all this fan-made content, and how future fan content will be received, now that the Empire Disney controls the franchise. Dennis S. writes in about a piece on this topic at Ars Technica, which reads less like a question about fan-made content and more like a propsective eulogy for it.

In 2007, Lucasfilm even released tools that would more easily enable remixing of Star Wars content. A top Lucasfilm lawyer, Jeffrey Ulin, began speaking at conferences and to the media about the value of fan mash-ups and remixes. Those works were "part of keeping the love of Star Wars and the franchise alive... We're really trying to position ourselves for the next 30 years," Ulin told the Wall Street Journal in 2007.

Certainly, Disney fans who make their own movie featuring Mickey Mouse are more likely to get a cease-and-desist letter from a Disney lawyer than an award. After all, it was Disney who famously lobbied Congress to extend copyright terms in 1998, so much so that some dubbed the new law the Mickey Mouse Protection Act. Perhaps no single company more than Disney bears more responsibility for the sorry state of the US public domain, which hasn't seen any significant works added to it in decades. For the most part, culture after 1923 has been frozen in a state of private ownership—mostly owned by the large media corporations that began rising at about that time.

It's very difficult to argue with the precedent that the article lays out. Star Wars enjoys what may well be the biggest franchise fanbase ever. Part of that fanbase is so fanatical that they want to take part in the fun, sharing with one another their own creations and extensions of the Star Wars story. Many believe it's this same enthusiasm that has built up the Star Wars brand to such an amazing degree, but Disney's history suggests these contributions may no longer be welcome.

Frankly, that may pose a bigger problem than one would imagine. Obviously the Star Wars brand is big enough at this point that whatever content Disney releases is likely to be a hit...but will it grow as fast as it could if Mickey Mouse goes all emperor over the people? There's a serious risk in alienating folks over this kind of thing. Star Wars fans aren't stupid. There's a reason there's been a fair amount of hand-wringing over the sale of the franchise to Disney, seemingly much moreso than other sales like Marvel. This is a community that likes to contribute their own work to the story. I would say that such contributions are integral to the fanbase. If Disney acts to block that kind of thing, as they have in the past, the fans may well rebel against the Empire Disney and its Senate boardroom.

Here in California, of course, we have a number of (often excessively confusing) ballot measures every election season, and this year is no exception. I've spent a fair amount of time going through the various ballot measures myself in determining how I'd vote on them, and it quickly becomes clear that -- as with so much in government -- the devil is in the details, and the details are often hidden or purposely shoved aside. Take, for example, ballot measure 35. The "summary" version of it sounds like something that many would support:

Increases prison sentences and fines for human trafficking convictions. Requires convicted human traffickers to register as sex offenders. Requires registered sex offenders to disclose Internet activities and identities. Fiscal Impact: Costs of a few million dollars annually to state and local governments for addressing human trafficking offenses. Potential increased annual fine revenue of a similar amount, dedicated primarily for human trafficking victims.

Human trafficking is certainly a big concern. However, there are a lot of details here. That "disclose Internet activities and identities" part is already a concern. And, many of us have heard the horror stories of how states put all sorts of people on "sex offenders" lists for things that aren't sex offenses -- things like urinating in public or (perhaps slightly more controversial) two teenagers engaging in consensual sexual activity.

It turns out that the internet stuff in this bill is massively problematic. Unfortunately, some "voter guides" completely ignore the issue. A popular California voting guide from KCET barely mentions the internet part of the measure, and positions it as something of a no-brainer to support. But, if you look at the details, they're pretty scary:

Proposition 35 would force individuals to provide law enforcement with information about online accounts that are wholly unrelated to criminal activity – such as political discussion groups, book review sites, or blogs. In today’s online world, users may set up accounts on websites to communicate with family members, discuss medical conditions, participate in political advocacy, or even listen to Internet radio. An individual on the registered sex offender list would be forced to report each of these accounts to law enforcement within 24 hours of setting it up – or find themselves in jail. This will have a powerful chilling effect on free speech rights of tens of thousands of Californians.

While Proposition 35 facilitates government monitoring of certain online accounts, it doesn’t add safeguards for civil liberties or privacy. The proposition leaves unclear who will be tasked with reviewing these lists of online accounts for accuracy and completeness, and there are few limits on how the data could be used. There is substantial risk that law enforcement will subject these accounts to additional monitoring, and that officials might turn these lists of accounts over to ISPs or popular web services and solicit the assistance of these intermediaries in monitoring users’ online behavior. For example, if an individual on the registered sex offender list participates in an online political forum, will law enforcement actively monitor these discussion groups? Will other individuals on that forum face increased scrutiny because one of the forum members is on the registry? There are also risks to online accounts that are shared between household members – such as joint Netflix accounts – which will be subject to the same rules of reporting to the police, thus implicating the data of individuals who have committed no crime other than sharing an account with someone on the registry.

The LA Times posted a forceful editorial against the provision, noting that it's all about punching emotional buttons rather than a legitimate law enforcement issue:

It punches most of the usual emotional buttons, appealing to voters' sympathy for victims and disgust with perpetrators who are the closest thing the United States has to modern-day slavers. And in calling for longer sentences, it follows the same assumptions as other tough-on-crime initiatives born in fear or anger rather than thought: Punish people more severely and they will offend less. Merely by being on the ballot, the measure implies that the Legislature would not or could not deal with the issue.

That's false. Lawmakers became convinced in 2005 that state and federal laws dealing with kidnapping, extortion and other crimes were not keeping up with human trafficking, and they adopted a law that was painstakingly crafted with input from law enforcement, victims, advocates and others. That law has been fine-tuned more than a dozen times over the last seven years as experience was gained, people were prosecuted and legal holes were discovered and plugged. Proposition 35 would subvert that work and substitute a web of poorly drafted laws that expand the sex offender registry, divert resources from victims and, most important, could not be adjusted to keep up with changing circumstances without yet another ballot measure.

The ACLU has stepped up and tried to remind people that it's likely unconstitutional in that it removes the right to speak anonymously over issues completely unrelated to any crime:

The Supreme Court has long held that the First Amendment protects the right to speak anonymously. The initiative infringes on that right of registrants to speak anonymously on the Internet, because it means a person who is convicted decades ago of a relatively minor sex offense, such as indecent exposure, or a crime that has absolutely nothing to do with either children or the use of the Internet, must now inform the police of any name he or she uses in any sort of online discussion group.

Unfortunately, because this is an emotional issue, it's likely going to pass, and then there's going to be a huge mess as it's put into practice, followed almost certainly by lawsuits challenging the constitutionality of the provision. Emotionally driven issues tend to make bad law, and it seems like this is no exception.

The election day news is coming in rather fast today, but we're already seeing reports of voting issues. There's some viral videos floating around showing voting machines acting up. This, of course, can be added to the long history of voting machine nonsense we've written about in the past. But adding to the the confusion is that a great section of the East Coast is still recovering from Hurricane Sandy.

You may have seen the news over the past few days that displaced New Jersey voters are being allowed to (sorta) vote via email. Or, rather, they would be allowed to vote via email if the state's election officials could manage to act like they know what they're doing. Instead, reports indicate massive amounts of people have been unable to request ballots at the email addresses originally provided. This is causing frustration and confusion across the state, but the real absurdity shows up in Essex County.

Aware of the problems with the official e-mail system, Essex County Clerk Christopher Durkin suggested an alternative option: "Displaced voters can email a request for a ballot at cj_durkin@hotmail.com," according to a post on the Facebook page of the town of West Orange, NJ. Interestingly, security researcher Ashkan Soltani notes that Durkin's Hotmail address has his mother's maiden name as a "password recovery" question. This means that anyone who can figure out Durkin's mother's maiden name could seize control of his Hotmail account and intercept voters' official ballot requests.

I'll be clear in saying that I understand that the situation in New Jersey is a difficult one and I'm sure election officials there are simply trying to do their best under the circumstances. Unfortunately, Durkin's best appears to suck. You simply cannot put something of such importance (voting) in the hands of someone who cannot either provide a working and secure email address for ballot access or, at the very least, take the most trivial security steps on another email address. We all want every citizen to be able to have their voice heard, but not at the cost of massive security risks.

Update: Just as this post went out, the ruling was released—the judge has rejected the claims.

While we've covered e-voting issues for years, it really did seem like the issues with e-voting machines were less this year than in the past. Except... maybe not. ES&S, the largest vendor of e-voting machines, who has a long and scary history of problems with their machines, is embroiled in yet another controversy, in which Ohio's Secretary of State, Jon Husted, had the company install "experimental" software patches on ES&S vote counting machines (not the voting machines themselves, but the tabulators). The software is uncertified and likely violates the law.

Husted's office has not inspired confidence with its responses to these charges:

The Secretary of State’s office has been evasive and contradictory in response to questions about the minor seeming change that involved converting results from xml to csv format. Apparently, by calling the software “experimental,” Husted was attempting to avoid any approval, review or testing of the new software. But as the federal Elections Assistance Commission titled a memo back in February , “Software and Firmware modifications are not de minimis changes.”

In the meantime, a court is set to rule on the challenge to the software any time now, and a ruling against the software patches could make counting the votes tonight a more complicated process -- but considering the concerns, a reasonable solution. Today, the judge rejected the challenge to the software.

Oh, and while this story is making the rounds, we have no idea what to make of the video of an e-voting machine that votes for Romney if you click on Romney or Obama. There have been some questions as to whether the video was real, but reporters have confirmed that the machine (in Pennsylvania) has been "taken off line." The writeup on that one suggests it's not just a touch screen calibration issue, because the guy who filmed it said that if you touch other candidates, the same offset doesn't happen.

It's election day, of course, and with that comes some amount of civic pride among a number of voters. That's a good thing, for the most part, and in this era of social media and people sharing photos and videos about their lives, plenty of people are sharing imagery of their own ballot. Perfectly reasonable, right? Well, yes, except when that runs into laws designed to keep your ballots secret. There are, of course, good intentions behind such laws. But mixed in with all those local laws concerning camera usage inside a polling place are some that could cause trouble for people doing something quite ordinary. For example, it appears that people in Wisconsin who decide to Instagram/Tweet/Facebook an image of their ballots, have committed a class I felony, election fraud. And this doesn't appear to just be a law that the state is going to ignore either. It's been issuing warnings to people that they could face felony charges if they do post those photos. Undoubtedly, many will be unaware that they're committing election fraud when they thought they were just showing civic pride. One hopes that officials in Wisconsin, and other states, take the context into account before moving forward with any legal responses.

The Harry Fox Agency (HFA) is the main licensing agency for mechanical licenses (i.e., actual reproductions of recorded works -- which is different from things like ASCAP who handle licenses for performances). While it doesn't get into as many ridiculous copyright scrapes as others, it still has been known to insert itself where it doesn't belong at times. The latest, courtesy of BoingBoing is that HFA made a copyright claim on a YouTube recording of Thailand's Youth Orchestra (Siam Sinfonietta) playing the Radetzky March by Johann Strauss. The work is 164 years old and clearly in the public domain. Furthermore, since HFA only covers mechanical licenses, and this is a new performance, not a use of a recorded song that HFA has rights over, the whole thing is completely ridiculous. The director of the orchestra, Somtow Sucharitkul, sent a letter to HFA (and posted it to Facebook) expressing his amazement not only that HFA made the initial claim, but that it reinstated the claim after he initially disputed it:

I disputed this claim of course ... and in every case where I have disputed such a claim on youtube of ownership of a work clearly in the publc domain, the claim was released in a few hours.

I am amazed that Harry Fox Agency has reinstated the claim and that youtube now informs me that HFA may sue me or force me off youtube. The claim is patently absurd; Johann Strauss Sr. died in 1849.

Representatives of the Austrian embassy were at the concert from which the clip is taken and as this piece is practically a second Austrian national anthem, I am sure they would have objected to an improper violation against a national treasure.

Several well known music critics and artists have already written to you pointing out the absurdity of this claim as I tweeted a story about it.

I'm sure this will end in some sort of apology, but shouldn't we be concerned that we keep seeing these kinds of things happening? Copyright holders have become quite lax in doing any sort of verification before silencing content creators. It's a huge problem.

You hear the phrase all the time, often being used to explain why there are "limitations" on the First Amendment: "You can't yell fire in a crowded theater." It's come up quite a bit recently, in response to both the "Innocence of Muslims" video and the @comfortablysmug guy on Twitter tweeting bogus claims. However, the quote is almost always taken out of context, and all too often used as a crutch to defend blatant censorship that does, in fact, violate the 1st Amendment.

Back in September, Ken White wrote a great piece pointing out why the quote is used out of context by those in favor of censorship, and now Trevor Timm is pointing out why it's time for this phrase to be kicked aside. Both articles are absolutely worth reading, and remembering the next time someone uses the "fire in a crowded theater" line.

As the pieces both note, the original quote was said by Supreme Court Justice Oliver Wendell Holmes in a case, Schenck v. United States, but there are a few important facts often left out:

1. The case had nothing to do with fires or theaters. The quote was Holmes giving a general statement that has no actual bearing on the case or precedential value in court ("dicta" in the legalgeek speak).
2. The case is, to this day, considered one of the more odious and regretful decisions by the Supreme Court, in which they locked up a member of the Socialist Party for distributing incredibly tame pamphlets to give to prospective draftees about their rights during World War I.
3. The case was later effectively (though not explicitly) overturned by Brandenburg v. Ohio and the ruling in the case itself is no longer binding caselaw anyway.
4. Holmes himself, very soon after this decision, issued another decision that argued quite differently in Abrams v. United States, where he made the much more reasonable and useful argument:

   "The ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."

As Ken White argues in his piece:

Holmes' quote is the most famous and pervasive lazy cheat in American dialogue about free speech.

It's been misused for far too long, and I agree that it's time it stopped.

Last month, we wrote about how the band Death Grips, an indie sensation who had signed with Epic Records (owned by Sony Music), had decided to release their latest album for free all over the internet, after some sort of dispute with Epic over the release date. The band was already considered one of the top authorized downloaded bands on BitTorrent due to earlier releases it had put online for free itself. However, with Epic trying to take a standard "slow down and wait" approach, the band posted its new album to various file lockers and started tweeting out links, noting that "the label will be hearing the album for the first time with you."

Last week, the band posted a screenshot of an irate email from the label about this. Epic notes not only that is it absolutely furious about the leak, but that (1) the release is a breach of contract; (2) since Epic owns the copyright, the label considers the leak to be infringing; (3) the band's decisions have "financially damaged Epic"; (4) even though Epic still intended to release the album, the album would not count towards the recording commitment in the band's contract and (5) while Epic still intended to collect money for the sale of the album (which, again, would not count towards the recording commitment), Epic would not cover the cost of recording the album. Those last two points are the really interesting ones to me. If it's not counting the album towards the recording commitment, and it now refuses to pay for the cost of the album, it seems wrong to then still consider it something that Epic gets to sell and to keep all the revenue from.

Either way, it appears that won't be an issue, because just a few weeks after that email was sent, Epic officially began the process of dropping Death Grips from the contract. This probably won't surprise many people, though it will be interesting to see if Epic retains "ownership" of the work in question or if Death Grips is able to get back control of its masters. That said, Epic's "statement" about this move is absolutely hilarious for being obviously, blatantly, false:

Epic Records is a music first company that breaks new artists. That is our mission and our mandate. Unfortunately, when marketing and publicity stunts trump the actual music, we must remind ourselves of our core values. To that end, effective immediately, we are working to dissolve our relationship with Death Grips. We wish them well.

First of all, Death Grips had already "broken" without Epic's help. Second, since when has a major label ever really cared about "the actual music" as compared to the ability to make money off of it with marketing and publicity stunts? And, really, if it were just about "the music," then why would it have freaked out so much when the band made "the music" available for free?

Earlier this year, in a key patent fight between Apple and Motorola Mobility, Judge Richard Posner, who was "slumming" it down in the district courts for a bit, dismissed that case with prejudice while slamming Apple for its patent litigation strategy. Now, it appears that we have something of a surprise repeat situation, as a different judge in a different patent fight between the same parties has also dismissed the case with prejudice after angrily teeing off on Apple for its litigation strategy. Most of the reasoning can be found in an opinion the judge released late last week.

The key issue was that Apple was pushing the court to determine what the FRAND (Fair, Reasonable and Non-Discriminatory) rate was for the patents in question. Motorola wanted 2.25% of every iPhone sold. Apple was pushing for much lower. However, as the judge explored whether or not the court should determine a rate, Apple was asked if it would abide by whatever rate the court set -- leading it to say that it would only do so if the rate were under $1 per phone. This seriously ticked off the judge, who noted that it would take a ton of work for the court to come up with what it believed to be a FRAND rate -- and if it was only doing that so Apple could then use it as a bargaining chip in future litigation, that just didn't seem worth it.

Despite its position, Apple maintains that it is entitled to specific performance in the form of the court determining what a FRAND rate is for Motorola's patents. At the final pretrial conference, I asked Apple to explain why it believed the court should determine a FRAND rate even though the rate may not resolve the parties' licensing or infringement disputes. I questioned whether it was appropriate for a court to undertake the complex task of determining a FRAND rate if the end result would be simply a suggestion that could be used later as a bargaining chip between the parties. Apple responded that the rate would resolve the dispute in this particular case, namely, whether Motorola's license offer was FRAND and if not, what the rate should have been.

Apple's response was not satisfactory and did not assuage my concerns about determining a FRAND rate that may be used solely as a negotiating tool between the parties. After further consideration, I believe it would be inappropriate to grant Apple's clarified request for specific performance.

Apple made a last ditch to salvage the case -- and even to argue that if the case is dismissed, it should be dismissed without prejudice, so it can refile. However, the judge dumped the case entirely, with prejudice, meaning that Apple is out of luck here. It can, and almost certainly will, appeal the dismissal, but the judge is clearly not at all pleased with Apple's actions here. The judge also had some choice words for Apple concerning its argument that Motorola's actions have "irreparably" harmed the company.

Apple's allegations of "irreparable harm" have at least two problems. The first problem is that Apple's request for specific performance in the form of court declaration of a FRAND rate without any obligation by Apple to accept the rate would not prevent Motorola from suing Apple for patent infringement and requesting injunctive relief. In other words, if Apple refuses to be bound by the rate determined by the court, Motorola could continue to sue Apple for patent infringement and request injunctive relief.

The second problem is that Apple has provided no reason why its injuries would not be remedied by an award of money damages.

Basically, Apple's playing games here, and the judge (the second one in a row in such a case) is not at all happy about it. Apple may want to revisit its legal strategy.

Of course, just as this case is getting thrown out, it's been leaking that the FTC's main focus in its planned antitrust attack on Google will be... Motorola Mobility and the licensing rates for these patents. I do admit that I think it's a silly move for Google to try to continue this path of forcing other companies to pay high fees on patents (and seems to go very much against Google's stated position on patents historically), but taking that to the level of antitrust seems like an odd stance. We'll have to see when the actual complaint comes out, but seeing as one of the key cases related to this just got thrown out, it would seem to weaken the FTC's argument somewhat...

It's election day. While your actual ballot is (supposed to be) secret, a lot of people don't know that whether or not you voted at all is public information. A few weeks back, On the Media covered some ways that campaigns try to get out the vote and looked at some research suggesting that letters to people with a "voter report card" showing when they've voted in the past was a somewhat effective way of shaming people into voting. An even more extreme example was given as well: a letter that specifically shows how often your neighbors have voted. In the piece, OTM producer Chris Neary noted that while such things were effective in the lab, people shouldn't be expecting such letters for real, because, while they may be effective in getting out the vote, they also freak people out on privacy grounds, and no campaign wants to risk freaking people out:

And, by the way Brooke, you’ll never get that last letter. Campaigns hate to send out anything that prompts virulent hate mail in return, and one of those researchers got some of that mail.

Except... Neary has now posted an apology blog post after some OTM listeners reached out to share exactly the kinds of mailers discussed. While campaigns might shy away from such tactics, apparently third party organizations read the exact same research and took it to heart -- as they're a lot less worried about hate mail:

First, listener Rachel Lieberman got a voter report card mailing from MoveOn.org. (She notes that the report card isn't accurate, she just voted at a different address. Here's hoping it doesn't lower her citizen GPA.)
And from listener Taylor Maxwell, exactly the sort of letter I went out of my way to claim she probably wouldn't get. It's from Americans for Limited Government. Names and addresses redacted, or else we'd be co-shaming.

So, yes, this tactic appears to be in use across the political spectrum, and yes, it's likely mostly serving to creep people out... though it may also get them to go out and vote...