Court Dismisses Medieval Times’ Trademark Suit Against Its Own Employee’s Union

Trademark

from the peasant-revolt dept

Roughly a year ago, we discussed one of a few instances of a company filing a trademark infringement lawsuit against its own employees as a retaliation tactic for those employees forming a union. In this specific case, it was the company behind Medieval Times, an organization that builds fake castles and sells food and drink while customers watch fake jousting matches. The suit was fairly laughable by my estimation, with the complaint for some reason listing claims of the union having confusing symbols and iconography in its branding, alongside pictorial evidence of the exact opposite. There was little that was similar in any of this and the claims that the public would somehow be confused by branding and a website that was directly hostile to the corporation was absolutely silly. In other words, it seemed very clear that this was a bullying tactic, in retribution for the forming of the labor union in the first place.

And now it seems the court has agreed that the infringement claims were indeed silly.

In an opinion issued Thursday, the judge said the dinner theater chain failed to demonstrate that the union, called Medieval Times Performers United, was creating “confusion” among consumers and leading people to believe the labor group was somehow endorsed by the company.

“The Court concludes there is no plausible likelihood of confusion,” wrote Judge William J. Martini of the U.S. District Court for the District of New Jersey.

The ruling itself obviously goes into much more detail than that, putting the claims of infringement through the Lapp test. The Lapp test is a series of criterium to determine whether one trademark in use is indeed likely to cause confusion with that of the accuser’s. Those factors include:

For the vast majority of those factors, the court sides heavily with the union, and for obvious reasons. The union took great pains to make it very clear that it is not affiliated with the Medieval Times corporation, even going so far as to note on its website landing page that the union was on strike. To use but one example, on the question of the similarity of the branding for the company and union, the court writes:

“Although both employ red and yellow in some fashion (in the logos and costumes), ‘Medieval Times’ is written in different stylized fonts and colors,” Martini wrote in his opinion, which was first reported by Bloomberg Law. “The Medieval Times Mark is written in yellow or red lettering in contrast to the [union] logo which is in black font.” 

“In sum,” he added, “neither a side-by-side comparison nor the overall impression is confusingly similar.”

Notably in terms of the claim that all of this is part of the company’s plan to unfairly punish or discourage the forming of the union and its membership, the NLRB has filed a complaint against the company accusing it of other unfair labor practices.

We’ll see where that ends up going, but it appears that the abuse of trademark law in order to bully the union will no longer be one of the company’s arrows in its quiver.

Filed Under: lapp test, likelihood of confusion, strike busting, trademark, union
Companies: medieval times

Court Tells Cop They Need More Than ‘It’s A Vehicle’ And ‘Guy Looked Nervous’ To Engage In Warrantless Searches

Legal Issues

from the cruising-the-perimeter-of-the-4th-is-not-the-same-as-being-inside-it dept

Adding to the case law of small, but significant, Fourth Amendment law is this decision [PDF] handed down by a Maine federal court. (h/t FourthAmendment.com)

The Fourth Amendment makes things pretty clear: to perform invasive searches, cops need warrants. But over the years since the erection of that standard, we’ve seen it loosened. A host of exceptions exists. If it’s a “Third Party record,” the Fourth (in most cases) won’t cover it. If it’s a car on a public road, the Fourth rarely covers it. If things seem to be going bad in a hurry (“exigent circumstances“), the Fourth won’t cover it. If reasonable suspicion develops (but not actual probable cause), the Fourth (sometimes) won’t cover it. If it’s in “plain view,” the Fourth often won’t cover it. If an officer’s nose (“odor of marijuana“) or an officer’s dog (“probable cause on four legs“) says it’s cool to perform a warrantless search, the Fourth won’t cover it. And, if all else fails, the Fourth might be violated, but the violators will be granted preemptive forgiveness with the application of qualified immunity.

Do you see that? That’s a pretty long paragraph. And that doesn’t even cover other things like border security, national security, transportation security, or any other rationale that might allow the government to pretty much pretend (with courts’ blessings!) the Fourth Amendment doesn’t exist.

Given this wealth of options, it’s always strange (but never a surprise) when law enforcement officers still choose (repeatedly!) to violate the Fourth Amendment when they could have achieved the same results lawfully with extremely minimal effort. And why wouldn’t they just do the bad thing and roll the dice? Case law also shows ignoring this plethora of options rarely results in any direct harm to cops or the agencies that employ them.

So, that’s why small-ish decisions like these count. It establishes — or at least reiterates — the confines of the Fourth Amendment, ensuring future violations won’t be considered mere mistakes of law by law enforcement officers.

In this one, we start with someone already convicted of a crime, which means the Constitutional deck is stacked against them. Randolph Bourgoin had served his prison time. But he was still serving his “free” time: three years of supervised release. He was, more or less, treated no differently that someone riding out their sentence on parole.

As a convicted felon, he was forbidden to possess firearms or ammunition. (Or vote, etc.) All of this began with what was basically a traffic stop, even though said “traffic” had already been “stopped” by something other than a Maine state trooper.

The evening of May 19, 2022, a complainant reported that a tractor trailer hit a tree on Springy Pond Road in Otis, Maine. According to the complainant, a tractor trailer hit a tree and blew a tire. Trooper Travis Chapman began driving to Springy Pong Road, a narrow dirt road, to respond to the complaint. He found it unusual for a tractor trailer to be on a narrow dirt road, especially at nighttime.

The list of things officers “find unusual” encompasses pretty much any conceivable activity engaged in by human beings. That assertion means nothing more than the trooper wanted to go off task with a fishing expedition. Tractor trailers, especially in rural areas or farming communities, are on “narrow dirt roads” frequently.

From that point of not-all-that-unusual activity, things got a whole lot weirder… at least according to the trooper’s report and testimony.

Upon arriving at Springy Pong Road around 10:30 p.m., Trooper Chapman saw a tractor trailer along the road about fifty or sixty yards from a mobile home with its interior and exterior lights on. From inside his cruiser, Trooper Chapman looked for identifying information about the tractor trailer. He first ran the license plate, which he could only partially read, and there was no match. Next, Trooper Chapman drove around the tractor trailer and saw the blown tire. As he reached for his PA to identify himself and request the tractor’s operator to speak with him, Trooper Chapman heard a gunshot from the direction of the residence. Trooper Chapman retreated from the scene and informed others about the incident.

A tractor trailer with a blown tire. A residence located in a completely non-suspicious place (literally anywhere). An alleged gunshot from said trailer. None of these things could be considered parts of cohesive, suspicious whole. And yet, that’s exactly where this went.

If there was a shot from the trailer home (not the tractor trailer), the most immediate problem was the residence, not the “suspicious” vehicle on a dirt road.

And, at first, the Maine state police focused their attention on the residence, albeit for extremely specious reasons, (alleged) gunshot notwithstanding.

While Trooper Chapman waited nearby for more officers to assemble, Sergeant Gavin Endre told him that one of the occupants of 760 Springy Pond Road was Randy Spencer, who Trooper Chapman knew from previous encounters. The officers knew that Spencer disliked law enforcement.

You know what’s not a crime, much less reasonably suspicious? Disliking law enforcement. A mere dislike of law enforcement does not suggest a person is willing to shoot and/or kill law enforcement officers. Millions of Americans dislike law enforcement. Yet, every year, only a very small percentage of law enforcement officers are actually killed by criminal suspects.

Also note that the defendant in this case isn’t Randy Spencer, The Man Who Disliked Law Enforcement. It’s Randy Bourgoin, who was driving the tractor trailer with the flat tire when the trooper reported he heard a gunshot originating from Spencer’s residence. Bourgoin, for his part, cooperated fully. He told the troopers he was headed to Spencer’s home to fix his car. He also volunteered that Spencer once told him he had shot at a car (but apparently not a law enforcement car) and (allegedly) sold a bit of meth.

Using this information, the troopers applied for a warrant. But the warrant asked to search things that were not Spencer’s residence. The affidavit asked to search the trailer home and Bourgoin’s tractor trailer for evidence of a firearms discharge, “driving to endanger,” and “reckless conduct with a deadly weapon.”

That’s quite the mishmash of probable cause. At the point the troopers encountered Bourgoin, he was no longer driving, much less “driving to endanger.” That the tractor trailer was on a dirt road and the plate was illegible did not create probable cause to search the vehicle for evidence of [checks court ruling] “driving to endanger.”

Another warrant was obtained to search the Spencer residence and any outbuildings. That affidavit was apparently supposed to include a request to search Bourgoin’s truck, but that was (supposedly mistakenly) omitted from the second warrant request.

The searches were carried out, despite a whole lot of missing assertions and/or probable cause statements.

Sergeant Endre and two other state troopers executed the search warrant. While on the scene, Sergeant Endre learned that the tractor trailer belonged to Aggregate Solutions and that it was assigned to Bourgoin, who was on federal probation for stealing a firearm. The officers first searched Spencer’s residence, finding counterfeit money and marijuana—but no firearm. Next, the officers searched Bourgoin’s tractor trailer. They found ammunition and a methamphetamine- or cocaine-base pipe. Along with the ammunition, officers allegedly discovered two receipts from Old Town Trading Post. Eventually, law enforcement went to Old Town Trading Post with these receipts, where store personnel used the timestamp to get a picture of Bourgoin purchasing the ammunition.

So, first we have a search of a mobile home and outbuildings where a state trooper claimed he heard a gunshot originate from — one that failed to produce a firearm or ammunition. Then there’s the search of Bourgoin’s truck, which did produce contraband, but no contraband related to the alleged crime: “driving to endanger.”

But the discovery of ammunition and drug paraphernalia was enough to revoke Bourgoin’s probation, leading to this challenge.

The government argued against Bourgoin’s suppression motion, despite admitting it did not have probable cause to search his truck. It instead argued case law allowed it perform a warrantless search. It cited the automobile exception, which lowers the bar to reasonable suspicion, and the good faith exception, which says officers too stupid to understand the law can’t be sued as long as they rely on a warrant obtained by another officer too stupid to understand the law and that has been signed by a judge who can only work with what’s been handed to them by officers too stupid to understand the law and, in too many cases, can’t even be bothered to challenge the boiler plate assertions that tend to make up the bulk of search warrant affidavits.

Wrong on both counts, says the federal court. If you want to pull crimes out of the air to justify searches, then your affidavit better make it clear that evidence of the supposed crime will be found in the place you intend to search.

[T]he officers lacked probable cause to believe that evidence concerning driving to endanger would be found inside the tractor trailer. Maine law criminalizes driving with criminal negligence4 and “endanger[ing] the property of another or a person, including the operator or passenger in the motor vehicle being driven.” 29-A M.R.S. § 2413(1). While the officers knew that the tractor trailer had recently hit a tree, they had no reason to think that evidence concerning this offense would be found inside the tractor trailer. The most probative evidence of this crime was the blown tire—which was, naturally, on the outside of the vehicle.

And from there, the assertions of the troopers gets even worse.

Second, the officers did not have probable cause to believe that evidence of reckless conduct with a dangerous weapon, 17-A M.R.S. § 211, would be found in the tractor trailer. While near the tractor trailer, Trooper Chapman heard shots from the direction of the residence.

Banging the point home:

Third, and for the same reasons, the officers did not have probable cause to conclude that evidence regarding the discharge of a firearm near a dwelling, 12 M.R.S. § 11209, would be found in the tractor trailer.

Adding it all up, these assertions cannot be given credence by any court of law in the United States. It’s bullshit. And it’s dangerous bullshit if courts decide it’s okay for cops to cite literally any crime to support search warrant requests.

The upshot of all this is that warrantless searches of automobiles do not survive constitutional rigor on the close-enough-is-good-enough model. That the suspected criminal activity occurred in the neighborhood of an automobile does not, standing alone, supply the connective tissue necessary to dispense with the warrant requirement to search all the automobiles in the neighborhood.

If “close enough” isn’t “good enough,” then it’s too far away from any law enforcement notions of “faith” to be considered “good faith:”

The Government appears to argue that close only counts in horseshoes, hand grenades and warrantless searches so long as the police work was not hallmarked by nefarious intent. I do not believe the state troopers’ conduct was based on anything other than a mistaken belief, albeit unjustified, that the particulars of the warrant included the tractor trailer, just as the application materials had. However, that reflection of reality fails to get at the heart of the Leon rule and it does nothing to ameliorate the search of property that was not included at all, much less with particularity, in the warrant.

Sure, the troopers here weren’t necessarily intending to violate rights. But they were either too quick or too careless to avoid doing that. Either way, it’s the same thing: violated rights and… the loss of their evidence. The court says the evidence is suppressed. Bourgoin is free to go, or at least as free to go as anyone on probation is.

It’s a small win but it has larger repercussions. The automobile exception has its limits clearly defined. Officers are put on notice (yet again) that particularity matters when it comes to requesting search warrants. And, on top of everything else, it makes it clear the government can’t get away with rights violations simply because it wasn’t being deliberately evil. Even the more, shall we say, “innocent” violations are just as likely to empty the government’s evidentiary pockets as the more nefarious ones. And that’s something the government would be well-served to remember.

Filed Under: 4th amendment, maine, probable cause, randy bourgoin, warrant, warrentless searches

Google Is Still The Search Engine Of Choice For Law Enforcement

Privacy

from the everything-everywhere-all-in-one-place dept

Dominating a field is a mixed blessing. On one hand, it gives you extensive reach, immensely profitable products, and — if you’re just too good at it — the horrific realization your brand name has been commodified to the point that hundreds of millions of people now use your proper noun as a verb. (It also gets you targeted by the DOJ.)

On the other hand — if you’re good at what you do and hundreds of millions of people access your services every day — you become a place cops come first when they have no better investigative ideas.

This has been true for years with Google. Its collection of location data — as well as searches performed by users — makes it an extremely convenient starting point for law enforcement investigations where investigators have no leads at all.

This trend of law enforcement googling was first noted more than a half-decade ago. In some cases, warrants delivered to Google sought specified targets. The others, however, sought location data on anyone in the area of a suspected crime, with Google (and the courts) expected to trust investigators to use this wealth of data responsibly to identify potential suspects.

A few months later, it was revealed (to no one’s surprise) that federal agencies were also approaching Google for massive amounts of user location data, gathering haystacks in search of needles aided and abetted my Google’s massive collection user data.

In addition to location data, investigators were also asking Google for information on anyone who used certain search terms. While these requests were often limited to specific time frames and (if possible) certain areas, the fact was Google was expected to search all stored user data (with a single warrant) to provide investigators with this information.

The Supreme Court’s Carpenter decision was delivered less than three months after the revelation of this search, potentially limiting access to weeks or months of user location data. However, that decision dealt with location data gathered by cell service providers. Moving this data out from under the Third Party Doctrine’s free pass meant recognizing that data collected to provide service was hardly data voluntarily turned over by cell phone users. Either you agreed to turn on cell tower access or you went without phone service.

That hole in the Third Party Doctrine has been repeatedly exploited by law enforcement agencies, who have continued to approach Google to collect data on multiple people in order to find specific people. And that’s when they can’t get this data from other sources even less likely to push back against broad law enforcement requests, like data brokers who harvest all the information they can from app users who clearly aren’t aware the data they agree to hand over to app creators is being sold to others who then sell it to the government.

A half-decade on and the only thing that has changed is how often law enforcement goes to the Google well to turn tons of data points into possibly usable information. Here’s the latest, as reported by Julia Love and Davey Alba for Bloomberg. Their report opens with anecdotal evidence about Google-derived evidence — something that starts with a would-be cop being saved from his own carelessness by the readily available access to Google user data.

One morning in January 2020, Robert Potts was loading up his SUV for a trip to the police academy in Raleigh, North Carolina. He started warming up the car, his mind on exams, and went back into his apartment to grab his lunch. When he returned the SUV was gone, along with a rubber training pistol, a set of handcuffs and a portable radio.

Raleigh cops found the SUV by lunchtime. Potts was distraught. Losing your gear is very bad form for a cop, especially a rookie, and the thief had walked off with some of Potts’, including the most sensitive item—the radio. Someone could use that to disrupt the police department’s communications with false reports. Potts’ supervisors reassured him they’d take care of it.

Potts returned his focus to exams, completely unaware of the events his early-morning blunder had set in motion. He says the Raleigh PD was able to remotely disable his radio, ensuring that their communications remained uncompromised. But the cops weren’t ready to drop the matter. In their determination to recover the radio, they capitalized on two cutting-edge investigative tools available to local law enforcement—both made possible by Google.

Within days of the theft, the Raleigh PD sent Google a search warrant demanding a list of people who were in the neighborhood when the gear was stolen. They also secured a judge’s order for the company to identify anyone who Googled “Motorola APX 6000,” the model of the radio, and similar phrases in the days after the device went missing. Google handed over user location data in response.

And thus begins another law enforcement career, in which a rookie blunder is handled by the rest of the PD with no apparent effort to hold the prospective cop responsible for screwing things up this badly. Instead, investigators doubled down on Google, asking it for both location data and Google searches.

The only probable cause is the probability Google retains this data. The only specificity is whatever restraints investigators impose on themselves (geofence limitations, time period limitations). In rare cases, judges push back against these warrants for exactly these reasons. In other cases, judges don’t know (or don’t care) how much information is being gathered or how broad these requests are.

While Google is (theoretically) free to challenge these warrants, in many cases courts will decide Google can’t intercede on behalf of those targeted by these broad requests. Because Google’s intercession is limited and often ultimately ineffective, law enforcement has steadily increased its reliance on a third-party to hand over as much data as they can possibly obtain. We’re not seeing massive year-over-year gains in crime clearance rates. But we’re definitely seeing exponential growth in these warrants, which ask magistrate judges to do nothing else but decide whether or not it’s likely Google has (at least some) of the requested data on hand.

Google says it received a record 60,472 search warrants in the US last year, more than double the number from 2019. The company provides at least some information in about 80% of cases. 

Cops aren’t going to cut themselves off. Google can only do so much because of legal standing issues. The rest is up to the courts. And, in most cases, magistrates are rubber-stamping these requests, while the courts above them are mostly willing to settle for the backwards interpretation of probable cause wherein Google becomes the “suspect” for the purposes of the search because it has the data investigators seek. It’s only after they receive the bulk data that investigators go to work to determine who might actually be a criminal suspect. It’s not a house-to-house search for a suspect in a physical sense. But, in a digital sense, that’s exactly what’s happening.

Since little limits law enforcement from exploiting this handy byproduct of Google products, cops are using it for everything, despite it being clear to everyone (but cops) that broad searches should be restrained to the most severe crime, otherwise it’s law enforcement making a mockery of law enforcement.

Bloomberg Businessweek collected and analyzed 115 warrants for the company’s location and search data in five states, one of the largest known reviews of such documents. The analysis, based on search warrants filed from 2020 to 2023 with courthouses in Austin, Denver, Phoenix, Raleigh and San Francisco, showed that departments used them not only to solve violent crimes but also for more routine offenses. About 1 in 5 location warrants were for offenses such as theft and vandalism. A detective in Scottsdale, Arizona, got one in search of somebody accused of stealing a Louis Vuitton handbag. In that investigation and many others, the Google data offered nothing useful.

[…]

In the Phoenix suburb of Surprise, Detective Taylor Knight obtained five geofence warrants in a span of less than three months to investigate a spate of burglaries and vandalism at construction sites last year. Among the equipment police sought to recover were a microwave and a cooktop. One of the warrants, obtained for the theft of a wood chipper, demanded information on anyone who was near the construction site for almost an entire week. The Surprise Police Department says no prosecutions have materialized.

And that’s how cops are going to end up burning their Google sources. When it’s easiest to sit at a desk and fill out a form, that will remain the preferred option for investigators. Much like cops started out using Stingrays to track people suspected of major crimes, the easy access to EASY button tech soon resulted in cops deploying repurposed war gear to hunt down people suspected of stealing fast food worth less than $100 at full retail.

It’s clear Google needs to keep collecting this information to retain its (seemingly) insurmountable search engine/advertising lead over its competitors. While that shouldn’t be considered an acceptable tradeoff for access to goods and services, the exploitation of this collection by law enforcement is a bigger concern. US law enforcement has been granted considerable leeway and considerable power to engage in investigations. That cops have decided to do all their “investigating” from their desks, moving nothing more than a mouse-finger, should be considered early-onset dystopia. But, until courts are willing to actually confront what’s happening here — rather than pushing its own EASY button (the Third Party Doctrine) — we’ll never see cops deterred from going where the data’s at, rather than doing what’s been expected for years before the internet even existed: finding suspects first and working backwards to find the evidence they need to support their suppositions and searches.

Filed Under: 4th amendment, data, evidence, law enforcement, privacy, reverse warrants, third party doctrine
Companies: google

Daily Deal: The Ultimate Python & Artificial Intelligence Certification Bundle

Deals

from the good-deals-on-cool-stff dept

The Ultimate Python and Artificial Intelligence Certification Bundle has 9 courses that cover topics like AI, deep learning, machine learning, neural networks, and more. You’ll also learn Python, PyTorch, Keras, and more. It’s on sale for $40.

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.

Filed Under: daily deal

Senator Elizabeth Warren Supports Bill To Silence LGBTQ+ Voices

Failures

from the wtf-senator-warren? dept

At this point, any Senator signing on to support KOSA cannot deny that the bill has been written explicitly to suppress LGBTQ+ voices. The Heritage Foundation said so directly earlier this year. And Senator Marsha Blackburn flat out said that KOSA was important in order to “protect minor children from the transgender [sic] in our culture.”

While this was obvious from the earliest moments of KOSA’s existence, I can kinda forgive Senators who backed the bill earlier on and who aren’t deep in the weeds of these things, and who were suckered in by the “protect the children!” language used to promote the bill.

What is completely unforgiveable is any Senator who claims to be an ally of LGBTQ+ causes deciding to support KOSA now.

Meet Senator Elizabeth Warren.

She just added her name as a KOSA co-sponsor (along with Josh Hawley, though the addition of his name is entirely expected given his cynical power-driven populist authoritarian tendencies). As we’ve pointed out before, if you’re a Senator and you’re agreeing with Hawley, you may want to question what it is that you’re really supporting.

Warren holds herself out as an ally for LGBTQ+ rights. But it is impossible to take that seriously when she decides to support something like KOSA.

I honestly wondered if this was yet another sloppy mistake from Warren’s office, because last year a “clerical error” resulted in her sponsoring a bill with Senator Lindsey Graham for an outright repeal of Section 230. That was quickly fixed, but I’m increasingly questioning whether or not it was really an error. After all, earlier this year, Graham and Warren teamed up to introduce a bill to create a new federal online speech police agency.

And now she’s co-sponsoring KOSA, even after the GOP has been clear that the bill is designed to literally silence trans voices and trans support.

That is inexcusable.

Of course, in looking around to see if she has made any statement to try to defend this attack on LGBTQ+ rights, I found the likely reason she’s supporting this censorial bill: Common Sense Media asked her to do so.

Remember, Common Sense Media is a dangerous pro-censorship organization that will support any law that censors the internet, no matter how unconstitutional or dangerous. And last week, they sent a letter to Elizabeth Warren asking her to support KOSA.

From that incredibly misleading letter:

The Kids Online Safety Act seeks to hold social media companies accountable after their repeated failures to protect children and adolescents from the practices that make their platforms more harmful. The bill establishes a duty of care for social media companies to protect minors from specific mental health harms including; anxiety, depression, eating disorders, substance use disorders, and suicidal behaviors. Additionally, the bill requires companies to go through independent, external audits, allows federal researcher access to platform data assets, and creates substantial youth and parental controls to create a safer digital environment.

As a leader in protecting children, you have the power to contribute to tackling this growing issue through support for the Kids Online Safety Act. The wellbeing of future generations depend on it.

What Common Sense Media conveniently leaves out is that KOSA’s enforcement mechanism allows state Attorneys General to decide what is “harmful” content and to force companies to remove it. This mechanism means that state AGs become censors for any content they dislike, including (as admitted directly by Heritage Foundation and Senator Blackburn) any content that admits that trans people exist.

Senator Warren has no excuse for supporting this bill. Her staff knows how this bill will be used. It’s no excuse that Common Sense Media sent a mendaciously misleading letter. Blackburn’s statement about using KOSA to stop trans content got widespread attention. Either Warren’s staff is incompetent or she actually supports protecting “minor children from the transgender [sic] in our culture.”

Neither is a good look. Senator Warren should be ashamed.

Filed Under: 1st amendment, censorship, elizabeth warren, josh hawley, kosa, lgbtq, protect the children

Disney Joins Netflix In Harassing Password Sharers As The Enshittification Of Streaming Continues

Overhype

from the being-annoying-cheapskates-isn't-a-business-model dept

We’ve noted a few times now how as the streaming sector consolidates and grows, it’s becoming more and more like the traditional cable industry it disrupted. This enshittification includes a lot of endless price hikes, a steady degradation of product quality, pointless mergers that cause endless layoffs, and the implementation of new restrictive efforts to nickel-and-dime customers.

Like Netflix’s recent crackdown on password sharing.

Netflix spent years encouraging the practice as a form of free advertising. But as the streaming market’s growth saturated, Netflix turned to more creative ways to give Wall Street its improved quarterly returns at any cost (including product quality or customer satisfaction). Like charging users even more money for something it already monetized (users were already paying more for more simultaneous streams).

Unsurprisingly, other companies like Disney are now following suit, starting with Canada:

“Disney has not provided many details on how it plans to enforce this policy — its email merely states that “we’re implementing restrictions on your ability to share your account or login credentials outside of your household.” The announcement reads more like a strong finger wag than anything else. “You may not share your subscription outside of your household,” reads the company’s updated Help Center.”

Despite what Netflix and Disney claim, password sharing is not a major threat to these companies’ fortunes. In part because there’s no guarantee that the “moochers” they’re harassing (usually college kids or people who don’t like paying for things) will sign up for their own accounts. Analysts have noted a lot of these companies’ predictions of how much money they’ll make from crackdowns are based in fantasy.

Netflix claims the crackdown has been a smashing success, but there’s no hard evidence that’s actually true so far. These streaming giants aren’t really required to detail where new subscriptions are coming from in earnings reports, so whatever happens they’ll insist it’s all been a smashing success either way.

But nickel-and-diming your users as the streaming market gets more competitive simply isn’t all that bright. Streaming competitors looking to make market inroads can give themselves an edge by simply being less annoying. And should some companies push too hard, they risk increasingly driving paying customers to the next layer of disruptive services like TikTok, Twitch, or YouTube as the cycle continues.

Filed Under: competition, disruption, password sharing, streaming, tv, video
Companies: disney, netflix

ShotSpotter Looking To Compound Bad Cop Tech Ideas By Acquiring Predictive Policing Software Company

(Mis)Uses of Technology

from the unholiest-of-alliances dept

ShotSpotter has long presented itself as a reliable detector of gunshots. Mileage, however, has varied. Law enforcement customers that have gotten disgruntled with this limited service have pointed out — en route to terminated contracts — that (a) detected gunshots are not always gunshots, (b) detected gunshots are rarely useful intel, and (c) detecting gunshots rarely results in less gun-related crime.

The law enforcement agencies that still buy into ShotSpotter like it for other reasons. They like the fact that minimally-trained “analysts” will alter reports to provide cops with post facto justification for their actions. They like the “reasonable suspicion” ShotSpotter’s shot detection supposedly provides — justification for stopping and searching anyone in the area of a reported shot. And, presumably, they like ShotSpotter’s willingness to sue journalists who paint a negative picture of the company by reporting on court documents, testimony from its own experts, and the company’s internal documents.

ShotSpotter has dragged its own name through the mud in recent years, resulting in a recent rebranding as “SoundThinking,” apparently hoping Googlers will look past search results that contain phrases like, “SoundThinking, formerly ShotSpotter.” That’s the sort of SEO-washing companies do when their original names become a bit too toxic, like Taser (now Axon) or, say, military security contractor Blackwater, which rebranded to Xe Services (2009), Academi (2011), and finally Constellis after a merger with another private security firm.

ShotSpotter (a.k.a. SoundThinking) is now hoping to add to its questionable tech arsenal by acquiring yet another rebranded firm after it found its original name inextricably tied to a bad product with an extremely tainted reputation (at least outside of the law enforcement world). Here’s Dell Cameron and Dhruv Mehrotra reporting on the sort of corporate marriage that should have plenty of people shouting their objections when asked by the person presiding over the ceremony.

SoundThinking, the company behind the gunshot-detection system ShotSpotter, is quietly acquiring staff, patents, and customers of the firm that created the notorious predictive policing software PredPol, WIRED has learned.

In an August earnings call, SoundThinking CEO Ralph Clark announced to investors that the company was negotiating an agreement to acquire parts of Geolitica—formerly called PredPol—and transition its customers to SoundThinking’s own “patrol management” solution.

“We have already hired their engineering team,” Clark said during the call, a transcript of which is public. He added that the acquisition of patents and staff would “facilitate our application of AI and machine learning technology to public safety.”

Admittedly, PredPol is a terrible name for something used by law enforcement. But it’s the concept that sucks the most: the presumption that feeding AI a constant onslaught of tainted data will somehow result in better policing, rather than the racist garbage version we’ve endured for decades. The bigoted past will somehow become a level playing field… because computers. That’s not science. That’s not even faith. That’s straight-up delusion.

No wonder PredPol rebranded as Geolitica. It had to. But it possibly rebranded too early, which means it may not be able to outrun its history of failure.

In December 2021, Gizmodo and The Markup analyzed millions of Geolitica’s crime predictions that were discovered on an unsecured server and found that the software disproportionately—and often relentlessly—targeted low-income communities of color for additional patrols.

And, like ShotSpotter’s reputation-making tech, predictive policing software has been rejected by major law enforcement agencies in recent years after those using it discovered it changed almost nothing about the way resources were deployed. If you’re just going to cop the way you’ve always copped, there’s no reason to be shelling out millions of dollars a year for artificial intelligence capable of little else but confirmation bias.

This acquisition would put all the bad eggs in one basket, or — to paraphrase a colloquialism cop officials seem to believe is exonerative — all the bad apples in one barrel.

Now, there are obviously reasons to be very concerned about this acquisition. Putting all this under one roof means both companies will be able to absorb contract losses and critical press more easily. It also means both products are likely to get worse, since there will be little motivation to improve offerings and/or create checks and balances to offset the incoming flow of biased policing data.

On the other hand, it also means that when data is exposed — like the data analyzed by Gizmodo and The Markup — there should be much more of it. That’s going to be extremely useful to researchers and activists who have long recognized the downsides of letting software do cops’ jobs for them. And this merger will create an extremely enticing target for transparency enthusiasts who hunt down exposed data and/or are willing to phish someone into handing over the keys to the database.

Not exactly win-win. But better than a straight-up loss for the general public. To be sure, the people already routinely oppressed by law enforcement will likely see no change in the level of oppression… at least not immediately. But even this consolidation of artificial police “intelligence” contains a silver lining: when it’s exposed for the artifice it is, it will be spectacular.

Filed Under: gunshot detection, predictive policing
Companies: geolitica, predpol, shotspotter, soundthinking

Unity Fallout Continues: Dev Group Shuts Down While Developers Refuse To Come Back

(Mis)Uses of Technology

from the the-book-of-exodus dept

The fallout from game engine Unity’s decision to try to cram a completely new and different pricing structure down the throats of game developers continues. Originally announced in mid-September, Unity took a bunch of its tiered structures of its offerings and suddenly instituted per-install fees, along with a bunch of other fee structures and requirements for its lower-level tiers that never had these pricing models. The backlash from developers and the public at large was so overwhelmingly one-sided and swift that the company then backtracked, making a bunch of noise about how it will listen better and learn from this fiasco. The backtracking did make a bunch of changes to address the anger from its initial announcement, including:

• The newly amended pricing structure no longer applies to games already made using the engine, ending questions as to how any of this could be legal
• The Personal tier of Unity will once again be free of any fees until a game reaches $200k in annual revenue and will no longer be required to show a “Made With Unity” screen on boot
• Per-use fees will only kick in for the other tiers once a game reaches $1 million in revenue over a calendar year and 1 million in initial purchases/installations of a game. Those per-use fees are also capped at 2.5% of gross revenue for a game once it meets those requirements
• Those per-use fees also are somewhat lower than the initial plan

You can see the table below provided by Unity for the details mentioned above:

Is this better? Yes! And some developers have even come back with positive comments on the new plan. Others, not so much.

“Unity fixed all the major issues (except trust), so it’s a possibility to use again in the future,” indie developer Radiangames wrote. “Uninstalling Godot and Unreal and getting back to work on Instruments.”

Others were less forgiving. “Unity’s updated policy can be classified as the textbook definition of, ‘We didn’t actually hear you, and we don’t care what you wanted,'” Cerulean and Drunk Robot Games engineer RedVonix wrote on social media. “We’ll never ship a Unity game of our own again…” they added.

That “except trust” parenthetical is doing a lot of work, because that’s the entire damned problem. If Unity came out with this plan initially, and had actually worked constructively with its customers, the blow up about this almost certainly would have been far more muffled. But trust is one of those things that takes forever to build and only a moment to destroy.

Along those lines, we’ve learned subsequently both that some community groups that have sprung up around Unity are disbanding out of disgust for the company’s actions and that plenty of developers aren’t coming back to try this second bite at the pricing model apple that Unity wants to offer them.

As to the first, the oldest Unity dev group that exists, Boston Unity Group (BUG) has decided to call it quits, putting its reasons why in no uncertain terms.

“Over the past few years, Unity has unfortunately shifted its focus away from the games industry and away from supporting developer communities,” the group leadership wrote in a departure note. “Following the IPO, the company has seemingly put profit over all else, with several acquisitions and layoffs of core personnel. Many key systems that developers need are still left in a confusing and often incomplete state, with the messaging that advertising and revenue matter more to Unity than the functionality game developers care about.”

BUG says the install-fee terms Unity first announced earlier this month were “unthinkably hostile” to users and that even the “new concessions” in an updated pricing model offered late last week “disproportionately affect the success of indie studios in our community.” But it’s the fact that such “resounding, unequivocal condemnation from the games industry” was necessary to get those changes in the first place that has really shaken the community to its core.

“We’ve seen how easily and flippantly an executive-led business decision can risk bankrupting the studios we’ve worked so hard to build, threaten our livelihoods as professionals, and challenge the longevity of our industry,” BUG wrote. “The Unity of today isn’t the same company that it was when the group was founded, and the trust we used to have in the company has been completely eroded.”

Ouch. That’s about as complete a shellacking as you’re going to get from what, and I cannot stress this enough, is a dedicated group of Unity’s fans and customers. And while these organically created dev groups quitting on Unity certainly is bad enough, there are plenty of developers out there chiming in on these changes, essentially stating that the trust has been broken and there isn’t a chance in hell that they’re coming back on board the Unity train.

Vampire Survivors developer Poncle, for instance, gave a succinct “lol no thank you” when asked during a Reddit AMA over the weekend if their next game/sequel would again use the Unity Engine. “Even if Unity were to walk back entirely on their decisions, I don’t think it would be wise to trust them while they are under the current leadership,” Poncle added later in the AMA.

“Basically, nothing has changed to stop Unity from doing this again in the future,” InnerSloth (Among Us) developer Tony Coculuzzi wrote on social media Friday afternoon. “The ghouls are still in charge, and they’re thinking up ways to make up for this hit on projected revenue as we speak… Unity leadership still can’t be trusted to not fuck us harder in the future.”

Other developers chimed in that they did have discussions with Unity about the new pricing structure… and were summarily ignored. In those cases, those developers appeared to be solidly in the camp of “Fool me once shame on you…”.

There are certain things that are just really difficult to walk back. And breaking the trust of your own fans and customers, where loyalty is so key to the business, is one of them. The picture Unity painted for its customers is one where it simply does not care and is now pretending to, only because it landed itself in hot water.

Filed Under: development, fees, trust, video games
Companies: unity

Canada’s Online News Act (C-18) Has Been An Unmitigated Disaster; Why Does California Still Want To Move Forward With Its Version?

Journalism

from the who-could-possibly-think-this-is-still-a-good-idea? dept

We’ve written a bunch of stuff about the obvious to anyone who understands the internet problems of Canada’s C-18, now dubbed the Online News Act. The fundamental premise behind it is to break the open internet, as an obviously corrupt forced wealth transfer from one disfavored industry to an industry that helps get politicians elected. Everything about this concept is bad, as we recently discussed with Paul Matzko, who reviewed the history of these types of laws and how they’ve done serious damage to journalism.

To date, Canada’s Online News Act has been a total clusterfuck. Meta has made the reasonable business decision to no longer allow news to be posted to its websites, which has not reduced Meta’s traffic one bit, but has harmed Canadian news sites. As the Canadian news site FreezeNet recently noted, the officials who supported C-18 and insisted that everyone was lying when they pointed out these problems have now, themselves, taken to flat out lying about the law and its impact, falsely claiming that the bill has nothing to do with linking (even as officials have admitted that you only have to pay the tax if the companies allow links). They also seem to be living in a fantasy land, as pointed out by law professor Michael Geist (also a guest on our podcast about this bill):

That’s Geist noting:

Heritage Minister Pascale St-Onge tells US media conference Bill C-18 is a “win-win” solution. Urges other countries to stand with Canada. As Canadians know, the reality is it has been lose-lose-lose for users, media outlets, and the platforms. Now a model for what not to do.

Ridiculously, politicians in the US still want to move forward with their versions of this disaster. Just last week, there was a very silly conference in DC entirely about pushing these corrupt, open internet-breaking, crony corporate welfare bills. Canadian Heritage Minister Pascale St-Onge was there, along with Amy Klobuchar, who is pushing a similarly disastrous bill in the US Senate, and California Assembly member Buffy Wicks talking up how her bill (which has been pushed back to next year) will help “level the playing field” for journalists (what does that even mean?).

However, today, the Chamber of Progress, a trade group for internet companies, sent a letter to Wicks, highlighting how (contrary to her claims about bills like this helping journalists), the Online News Act in Canada has been a total and complete disaster for everyone, including journalists.

The letter is chock full of quotes from Canadians highlighting just how bad the law is for Canada, first highlighting how, if they help journalism companies at all, they massively distort the market to just the largest news providers, and screw over the smaller ones:

“This whole experience has me shaken. The reality is I made a huge mistake launching an innovative media business *in Canada*. There was massive government risk I didn’t take seriously ”- Chris Dinn, Founder and Publisher of Torontoverse (News Startup)

“Unfortunately, Bill C-18 misunderstands that crisis, misdiagnosing why news advertising revenue has collapsed, and who is at fault for it. As a result, Bill C-18 ‘fixes’ the problem through a convoluted system that makes news producers increasingly dependent on and subservient to both online platforms and government, threatening their critical role in holding these powerful bodies accountable.” – Openmedia, a community-driven organization that works to keep the Internet open, affordable, and surveillance free

It also quotes others highlighting how badly C-18/Online News Act is harming journalism companies, including the CEO of Village Media, noting that the bill is going to take away 15% of its traffic for no reason at all, and with no real benefit. And plenty of others as well:

“Let’s get something straight. Canadian news organizations did not and does not unanimously support Bill C-18. Digital-only news publications like Narcity Media Group, Village Media, and ZoomerMedia Limited wanted nothing to do with this.” – Chuck LaPointe, CEO, Narcity Media

“The act known as Bill C-18 is based on the assumed truth of the unproven allegation that Big Tech companies help themselves to the content produced by news organizations and refuse to share the profits they accrue from that larceny. Always wobbly, that cornerstone assumption has turned out to be pure fantasy.” – Peter Menzies, past vice-chair of the Canadian Radio and Television Commission (CRTC) and is a Senior Fellow at the Macdonald-Laurier Institute

There are many more quotes in the letter as well, including from Sue Gardner at Privacy International, who used to be executive director at Wikimedia Foundation, and head of the CBC’s website (i.e., she understands both the internet and journalism):

Bill C-18—which is really no more than a shakedown of the platforms in order to prop up the dying business models of legacy incumbents—just isn’t good enough. It’s lazy and it’s not in the public interest. Canada deserves better.

There are many, many more quotes from all sorts of experts in that letter, which one hopes that Wicks will actually take seriously. As the letter itself explains, the basic fundamental purpose of a tax is to get less of whatever it is that you are taxing, so it’s bizarre that Wicks would push a bill whose result will be less journalism:

As you know well, typically taxes are reserved for behaviors that policymakers are attempting to discourage, such as alcohol, tobacco, or even sugary beverages. For instance, California’s taxes on sodas have been shown by the Public Health Institute to unequivocally reduce soda consumption.

Similarly, taxing news links – as CJPA does – will undoubtedly lead platforms to shut off news links, as they have in Canada. Journalism at its core is about informing people and broadening the reach of objective truth. Taxing shared links is not only antithetical to this principle, but it discourages the exchange of valuable information.

If passed, CJPA will likely have the same impact in California as Canada’s law has had: Harm to both Californians and small news publishers. Large media organizations who can build their own direct connection to consumers may be fine, but small news publishers will undoubtedly be harmed.

Will Wicks listen to the experts this time? We’ll see. Last year we warned her directly that her AADC bill had serious 1st Amendment problems, and she dismissed our concerns. And yet a court just concluded that her bill infringes on 1st Amendment rights, just as we predicted.

So, maybe, instead of dismissing anyone who criticizes her bills, Wicks should take the time to actually speak to experts who can highlight all the ways that her bill will harm Californians and especially California news organizations like my own?

Filed Under: buffy wicks, c-18, california, canada, cjpa, journalism, link tax, media, online news act, pascale st-onge