Boise State’s Silly Trademark For ‘Non-Green Football Fields” May Finally Get Challenged

Trademark

from the black-and-blue dept

Almost exactly seven years ago, we discussed the absolute silliness that was Boise State University somehow getting the USPTO to grant it a trademark for a football field that is “non-green.” If you’re not a college football fan, some context is in order. Decades back, the school didn’t want to pay to have its field resodded with grass, so it instead put in cheaper turf that was colored royal blue. If you’ve never seen the field on television or in person, it’s absolutely ugly. So ugly, in fact, that it’s also absolutely awesome and has become a distinctive part of the BSU brand. Because of that, getting the original trademark the school got for the blue-colored field made some sense. But in 2010, the school managed to expand the mark to include all fields that are “non-green.” From my original post on the matter:

Now, we could sit around and argue whether or not having a blue football field was a thing fit to be trademarked. Personally, considering the specific color the school used, I could buy an argument that fans that see the field do indeed think of Boise State. I certainly do. But the school expanded the trademark in 2010 to fields not just blue, but fields that are “non-green.” And that’s crazy. Bradlee Frazer, an IP attorney working with the school, has stated that any non-green athletic field carries with it the risk of confusion pertaining to Boise State. He can say that all he wants, but such a stance likely wouldn’t survive a challenge from another school.

But those challenges have never come, mostly because Boise State is quite liberal with freely licensing the ability to have non-green fields to other schools.

And that has continued to be true. Colleges and high schools that have decided to use non-traditional color schemes for their football fields have traditionally sought approval from BSU. And, to be clear, BSU has continued to be fairly sanguine about approving such uses, so long as there is no real callback to BSU. Because of that, the obviously and overtly broad trademark BSU has hasn’t ever been challenged.

That may be changing. SUNY Morrisville, a Division 3 school, recently put in its own synthetic turf, colored deep black. And the school reportedly didn’t seek any sort of approval from BSU in doing so.

By going emo, the school joined a handful of select college programs that have, over the last two decades, broken from the traditional gridiron greens, including Coastal Carolina, Eastern Washington, Eastern Michigan and Central Arkansas.

And yet, in joining the ranks of these non-verdant outliers, SUNY Morrisville went a step bolder by breaking a norm that has been dutifully conformed to by the other nonconformists: seeking permission from Boise State University, which, in 1986, became the first university to implement a non-traditional athletic field color with its now-famous, blue “smurf turf.”

And now we get to see whether BSU really wants to try to enforce its trademark and claim this is infringement, or else it risks breaking the precedent that all these schools need to seek permission for football fields that are not colored the traditional grass-green.

I certainly hope BSU does try to enforce its mark, if only so that SUNY Morrisville can fight back and get this stupid trademark invalidated, or at least pared back to covering the royal blue colored field. I can’t account for how or why the USPTO allowed such an overly broad trademark to be approved in the first place, but I am damned sure that any competent attorney for SUNY Morrisville could get it rescinded upon challenge.

Filed Under: football fields, non-green field, trademark
Companies: boise state, suny morrisville

Council Of Europe Says Most Use Of NSO’s Pegasus Spyware Is Probably Illegal

Legal Issues

from the nice-racket-you-got-there,-NSO dept

I mean, that’s what we all were thinking, right? When you carve out a niche selling to outlaws, there’s a good chance your product will be used illegally, no matter who’s buying it.

That’s how it all plays out for NSO Group and its infamous Pegasus zero-click phone exploit — one capable of fully compromising targets’ phones. And what a list of targets it is! Journalists, human rights activists, opposition leaders, religious leaders, lawyers, and dissidents were all included on the list of NSO malware targets obtained by journalists in 2021.

Two years of bad news followed. Not just negative press, but investors, founders, and even the Israeli government backing away slowly from this suddenly toxic asset. At its peak, NSO had a long list of customers, most of them doing their own citizens dirty with routine human rights abuses. At its current nadir, NSO limps along, trying to find someone willing to pay it to put itself out of its self-inflicted misery.

This report [PDF], compiled by the Council of Europe and written by the Netherlands’ Pieter Omtzigt, says what everyone knows. But it says it for the benefit of those who know, but still refuse to stop engaging in abusive deployments of the Pegasus malware.

Here’s the main takeaway, as summarized by Suzanne Smalley for The Record.

The PACE’s Committee on Legal Affairs and Human Rights, which produced the report, asked at least 14 European Union countries which have bought or used the tools, including the Netherlands, Germany, Belgium and Luxembourg, to “clarify the framework of its use and applicable oversight mechanisms” within three months.

Additionally, the report singles out Poland, Hungary, Spain, Greece and Azerbaijan, which have already weathered public scandals related to their use of the NSO Group’s Pegasus spyware and similar tools, to undertake “effective, independent and prompt investigations” on all confirmed and alleged cases of spyware abuse.

Some things to note before we take a deeper look at the report:

First, it was composed by a representative of a government that has been (at least somewhat) critical of the EU’s attempts to undermine encryption with client-side scanning mandates. Second, the countries named as participants in likely illegal surveillance include Greece and Spain. Greece has been dealing with the fallout of illegal spying efforts utilizing other malware created by yet another Israeli-based spyware company. Spain has been engaged in open oppression of Catalan dissidents and wholeheartedly believes the EU should give it even more power to repress those who seek to have this region’s independence recognized by the Spanish government.

The other countries on the list have rarely been considered havens of personal freedom, with Poland being a bit more progressive in its protection of human rights than Hungary or Azerbaijan. That being said, Poland hasn’t exactly kept its hands entirely clean when it comes to domestic surveillance.

The problem is the malware itself, which is extremely powerful and, for most targets, undetectable. Given these aspects, the Parliamentary Assembly of the Council of Europe (PACE) doubts any use of the spyware could possibly comply with European law.

The Parliamentary Assembly notes that Pegasus is a highly intrusive surveillance spyware, which grants the user complete and unrestricted access to all sensors and information of the targeted mobile phone. It turns the smartphone into a 24-hour surveillance device, accessing the camera and microphone, geolocation data, e-mails, messages, photos, videos, passwords, and applications. While some spyware tools require some action on the part of the victim, such as clicking on a link (for instance, Predator) or opening an attachment, Pegasus is installed through a so-called “zero click attack”. Given its unprecedented level of intrusiveness into the private life of the targeted individual and all the target’s contacts, the Council of Europe Commissioner for Human Rights and the European Data Protection Supervisor have expressed serious doubts as to whether its use could ever meet the proportionality requirement and therefore be human-rights compliant.

This is followed by the name-and-shame portion of the presentation. The Council notes the malware has been deployed in both Poland and Hungary to spy on journalists, opposition leaders, lawyers, prosecutors, and activists. In Spain, 65 infections of phones possessed by Catalan pro-independence activists have been verified. Azerbaijan has both deployed it against its own people (journalists, activists) as well as targets in Armenia.

Since almost any deployment of Pegasus will, at the very least, likely violate European privacy laws, the Council requests that all EU nations inform the Assembly about any past, present, or planned Pegasus use, provide redress to those illegally-targeted, apply sanctions (if needed) against the entities deploying the malware, and conduct investigations to determine whether any past deployments have flown under the oversight radar.

The report delivers more details on potentially illegal Pegasus deployments throughout the rest of the report. Most of these were uncovered by security researchers, like the invaluable Citizen Lab. None of the discovered infections were the result of self-reporting by government agencies who purchased NSO spyware. In a few cases, government investigations have uncovered abusive deployments by government entities, but most of the legwork is still being done by the private sector.

While the Council is entitled to make these demands of EU nations, it doesn’t actually have the power to make any of this happen, unfortunately. Back to Suzanne Smalley and The Record:

The Council of Europe was established in the wake of World War II to promote human rights and democracy. While it cannot enact laws, it describes itself as being able to “push for the enforcement of select international agreements reached by member states on various topics.” 

It’s not much, but maybe it will be enough. NSO is on the ropes and very few self-respecting governments want to be caught with Pegasus on their hands. There will always be competitors willing to fill the void created by NSO should it choose to exit the market. But maybe efforts like these will make EU nations think twice before doing business with malware merchants more than happy to get in bed with any autocracy that will have them.

Filed Under: council of europe, malware, privacy, spyware
Companies: nso group

Last Week 5th Circuit Said Gov’t Can’t Pressure Websites, This Week It Says Gov’t Mandated ‘Health’ Messages Are Perfectly Fine

Free Speech

from the when-republicans-do-it,-it's-fine dept

It can always get dumber. And when we’re talking about the 5th Circuit, you have to assume it will always get dumber. And that’s what has happened now with the 5th Circuit issuing a stay on an injunction that had blocked an obviously unconstitutional law. But we’ll get to those details in a moment.

Just last week we wrote about the decision in the 5th Circuit saying that the government cannot coerce websites regarding how they moderate content. We noted that this seemed to be in near total conflict with last year’s 5th Circuit ruling saying that of course governments can tell websites how to moderate (the only point on which they are consistent is that “it’s okay when Republicans do it, and not okay when Democrats do it”).

But that ruling last year was even crazier than it sounds. As you may recall, Texas passed this law, HB 20, that told social media websites how they had to moderate (or not moderate) certain content. A federal district court issued an injunction blocking the law, laying out in great detail how very, very, very obviously unconstitutional the whole thing was. It appeared that the judge in that case knew full well that the 5th Circuit was likely to muck it up and was trying to convince them not to.

Somewhat incredibly, the 5th Circuit mucked it up in spectacular fashion, overturning the injunction and reinstating the law immediately with zero explanation. Normally, when you issue a ruling stopping an injunction (or issuing one) you… explain why. But the three judge panel just issued a one-line ruling saying that the motion was granted. No explanation. This resulted in a mad dash to the Supreme Court which (perhaps surprisingly!) told the 5th Circuit that this was procedurally inane, and put the law back on hold.

Eventually, many, many, many months later, the 5th Circuit explained its reasoning in an opinion authored by Judge Andy Oldham, reinstating the law again (which was then put on hold while it was appealed to the Supreme Court, where we’re still waiting to see what happens). Oldham’s reasoning basically overturned a century’s worth of “settled” 1st Amendment law.

So, anyway, that’s the history from last year. Onto this year. Earlier this year, Texas passed a law requiring both age verification and a mandatory “health warning” message on all adult content websites. The Free Speech Coalition sued to stop the law going into effect (as it was scheduled to do on September 1st) and, as we reported, the court reasonably granted the injunction blocking the law, noting that it was pretty clearly a violation of the 1st Amendment for both the age verification bits and for the mandatory health warning, which forces adult websites to say that “Texas Health and Human Services” has claimed that pornography leads to eating disorders, impaired brain development and an increase in demand for child exploitation even though, as the judge blocking the law noted, Texas Health and Human Service’s department never found any such thing.

As the court clearly notes “this is compelled speech.”

Anyway, with the court rejecting it, we figured there would be some time for it to go through the usual appeals process.

But we did not count on good ol’ 5th Circuit Judge Andy Oldham. Because a three judge panel that includes Oldham reinstated the law, putting an “administrative stay” on the preliminary injunction that blocked the law in the first place. Once again, the ruling gives no details at all. It’s two sentences this time (up from one the last time), and just effectively removes the preliminary injunction, meaning that the law is immediately in effect. The only difference from last year’s similar nonsense is that the court says the appeal is “expedited” to the next available oral argument panel.

5th Circuit lawyer Raffi Melkonian wrote on Bluesky that there’s some procedural weirdness to all this, noting the 5th Circuit will often issue an administrative stay while considering a motion for a stay, but here it’s not even yet considering the actual stay because it’s saying that it will deal with it during oral arguments.

Either way, the law is now in effect and we have no idea what that means because the 5th Circuit has explained nothing.

And, again, between these two 5th Circuit rulings, a week and a half apart, we are being told by the very same court that governments cannot do anything to coerce speech on some platforms, but absolutely can compel speech on other platforms.

If that seems contradictory, the reality is that what the 5th Circuit is saying, in a truly partisan way, is that when Republicans compel speech, that’s fine. It’s not only fine, but the court doesn’t even need to explain why it passes constitutional muster. When Democrats highlight content that could lead to harm for websites to look at and decide for themselves if they want to host it, that is the worst censorship scandal in the history of America, and the government should be barred from speaking to the companies at all.

The 5th Circuit is a joke, and its main court jester seems to be Andy Oldham.

There is no workable theory of the 1st Amendment here. There is nothing but a distorted partisan filter.

Filed Under: 1st amendment, 5th circuit, age verification, andrew oldham, andy oldham, compelled speech, free speech, hb 1181, texas
Companies: free speech coalition

Daily Deal: Multi-Use Cleaning Pen for AirPods & Earbuds

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

It’s hard to keep your devices clean. And if you have any AirPods, you’ll know how difficult it can be to clean the nooks and crannies of the device—especially when they’re so tiny! Now it’s a whole lot easier with the Multi-Use AirPods Cleaning Pen. It helps you clean hard-to-reach areas or any other corners. You can easily remove all wax and dust from headphones without damaging them. The AirPods Cleaning Pen is designed with a flocked sponge, a high-density brush, and a metal tip that can be used with many digital devices such as Bluetooth earbuds, mobile phones, computers, and more. It’s on sale for $16.

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

Judge Tells Trump Durham Report Doesn’t Prove Hillary Clinton Conspired Against Him To [Squints At 2016] LOSE Election

Legal Issues

from the mfer-apparently-unable-to-take-the-W dept

Former president Donald Trump has been engaged in plenty of questionable litigation. And not just during and following his mercifully short-lived stint as the supposed leader of the free world.

But this still remains one of the weirdest lawsuits Trump has filed. This lawsuit — which he has already lost — claims the Democratic Party and Hillary Clinton conspired to rig the election… he won. That’s right, he sued over what he claimed was a rigged 2016 election. Not 2020. 2016. The one he actually won. Yeah, I don’t know what to make of that either. It’s a lot easier to prove a conspiracy when you come out on the losing end. I’m not sure what Trump wanted from this lawsuit. He couldn’t have been any more of a president than he already was. Even if there was a conspiracy (there wasn’t), there were no damages. He was, for four very long years, the Commander-in-Chief.

The federal court saddled with this absurd lawsuit dumped it last September, summarizing it this way:

Plaintiff’s theory of this case, set forth over 527 paragraphs in the first 118 pages of the Amended Complaint, is difficult to summarize in a concise and cohesive manner. It was certainly not presented that way.

And it punctuated its decision with this:

More troubling, the claims presented in the Amended Complaint are not warranted under existing law. In fact, they are foreclosed by existing precedent, including decisions of the Supreme Court.

But, as we’re all painfully aware, Trump is incapable of accepting undeniable losses. Three months after this decision, Trump’s lawyers were hit with $76,274.23 in sanctions. Here’s what the court said then:

Not just initiated by a shotgun pleading, this was a shotgun lawsuit. Thirty-one individuals and organizations were summoned to court, forced to hire lawyers to defend against frivolous claims. The only common thread against them was Mr. Trump’s animus.

Plaintiff deliberately misrepresented public documents by selectively using some portions while omitting other information including findings and conclusions that contradicted his narrative. This occurred with the Danchenko Indictment, the Department of Justice Inspector General’s Report for Operation Hurricane, and the Mueller Report. It was too frequent to be accidental.

Every claim was frivolous, most barred by settled, well-established existing law. These were political grievances masquerading as legal claims. This cannot be attributed to incompetent lawyering. It was a deliberate use of the judicial system to pursue a political agenda.

Two months later, Trump’s lawyers were sanctioned again by the same court. This time, the fees totaled nearly $1 million. The court was still as irate as ever:

This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it. Intended for a political purpose, none of the counts of the amended complaint stated a cognizable legal claim.

Somehow, Trump (and the lawyers that still dare to represent him) believe this series of resounding defeats are still contestable. Trump submitted a filing referring to the Durham Report released in May of this year. He apparently hasn’t read it. It doesn’t say what he thinks it does. It does not show there was an overarching conspiracy to deprive him of an election win (you know, in the election he WON). The report resulted in nothing more than a guilty plea from one former FBI lawyer, who admitted he altered an email to generate (bogus) probable cause for the continued surveillance of short-lived Trump-coattail rider Carter Page.

The court’s latest ruling [PDF] is similarly exasperated with Trump’s insistence on wasting its time with baseless claims and non-actionable allegations. That much is clear almost immediately. Here’s how this ruling opens:

On May 12, 2023, Special Counsel John H. Durham submitted his Report on Matters Related to Intelligence Activities and Investigations Arising Out of the 2016 Presidential Campaigns (“Durham Report”). Plaintiff and his lawyers tout the Report as “newly discovered evidence” and they now ask me to reconsider my previous rulings. But far from “seismically alter[ing] the legal landscape of this case” (DE 331 at 6), the Durham Report changes nothing. Nor could it really.

Even if the Durham Report uncovered the sort of vast conspiracy alleged by Plaintiff (it plainly did not), it would not change the many legal conclusions I made in the Order dismissing Plaintiff’s lawsuit. And whatever the Durham Report can be said to have uncovered, for purposes of this case, it does not change my findings that Movants acted in bad faith in bringing this lawsuit and that this case exemplifies Mr. Trump’s history of abusing the judicial process. Therefore, for the reasons set forth below, Plaintiff and his lawyers’ Motion for Indicative Ruling Based Upon New Evidence is denied.

Oof. I mean, that’s what a normal litigant would say. Who knows what someone like Trump might say when reading this smackdown of another (of what will presumably be several) attempts to revive a case that’s been (as was said in The Thick of It) “Brian Jones*” since day one.

^{*Dead in the water}

The point is hammered home a few pages later, following the discussion of legal standards, which is something Trump and his lawyers need to be constantly be reminded of.

I struggle to even imagine anything that the Durham Report could say to warrant a change in any of those conclusions—the sum of which foreclosed Plaintiff’s claims and led to sanctions. And after reading all 306 single-spaced pages of the Durham Report, I am not convinced that anything it does say merits the extraordinary relief of granting a Rule 60(b) motion.

The court notes that the Durham Report was released after its dismissal of the lawsuit (and two consecutive sanctions orders), making it pretty much inadmissible. And even if it theoretically could be considered “new evidence,” Trump’s legal team has already made the assertion that there’s nothing really new about the contents of the report.

I also reject Movants’ argument that “[w]hile much of the information contained within the Durham Report may have been reported in the press or asserted in legal proceedings prior to the Durham Report’s release, the existence of this same information in a report of an official government investigation is fundamentally different and new.” (DE 336 at 9) (emphasis added). That is exactly the opposite of “newly discovered evidence.”

The court also points out that if this was truly “new” evidence, you’d think Trump would have asked to file an amended complaint. But that didn’t happen. Instead, his legal team lobbed the Durham Report into the court and claimed that alone justified a re-examination of Trump’s (bogus) claims — the claims that said Hillary Clinton, et al conspired to rig an election TRUMP WON.

This was not good faith litigation. This was exactly what the court called it months ago. It was Trump weaponizing the legal system for political purposes. And this attempt to revive the suit has only provided the court another opportunity to criticize Trump and his litigation tactics.

Movants ignored the unfavorable parts of Special Counsel Durham’s indictments. See, e.g., (Indictment ¶ 36, United States v. Danchenko, No. 21-cr-00245, (E.D. Va. Nov. 3, 2021)) (“According to [Mr. Dolan], individuals affiliated with the Clinton Campaign did not direct, and were not aware of, the aforementioned meetings and activities with Danchenko and other Russian nationals.”) (emphasis omitted). And in alleging that Plaintiff was “banned from different social media platforms, including Twitter” as a result of “the misinformation campaign waged by Hillary Clinton,” (Amended Complaint ¶ 524 n.277), Movants at best made it up and at worst flatly lied. See Twitter Inc., Permanent Suspension of @realDonaldTrump, Twitter Blog (Jan 8, 2021), (suspending Mr. Trump following January 6th attack on the Capitol because his tweets posed “the risk of further incitement of violence.”).

And:

A shotgun pleading, especially one of this length and scope, was not an academic error—it had real-world, negative consequences for Defendants and this Court. Defendants were forced to spend an enormous amount of time and money untangling a web of largely irrelevant facts and frivolous legal conclusions. And this Court diverted an unusual amount of resources and time to properly adjudicate this dispute. The Eleventh Circuit has likened a shotgun pleading of this nature to obstruction of justice. That Movants pressed on, even after Defendants raised the relevant Eleventh Circuit caselaw in their initial motions to dismiss, is inexcusable.

In conclusion, fuck this litigant in particular.

Movants pursued this lawsuit in bad faith for the improper purpose of dishonestly advancing a political narrative. As I previously explained, Mr. Trump is a prolific and sophisticated litigant who is repeatedly using the courts to seek revenge on political adversaries. This case is straight out of that playbook. Nothing in the Durham Report changes that.

There will likely be no sanctions for this move, if only because the court doesn’t expect the defendants to respond to this obviously frivolous and desperate move by Trump and his lawyers. If Trump wants a conspiracy, I’m sure he’ll be able to find all the theories he wants. But what he won’t ever be able to do is prove that any of these theories are real.

Filed Under: donald trump, durham report, election lawsuit, hillary clinton, john durham

As Net Neutrality Debate Reheats, Remember The Real Problem Is Telecom Monopoly Power

Broadband

from the here-we-go-again dept

With the Biden FCC now having a full slate of commissioners and a full voting majority, the net neutrality debate has already started to heat back up. That means a renewed effort by broadband giants to try and downplay the need for net neutrality rules, usually via lazy op-eds run in lazy publications like The Hill, often written by organizations with undisclosed financial conflicts of interest.

Like this lovely missive by the telecom-industry funded “Innovation and Technology Policy Center (ITPC),” which attempts to claim that the Trump FCC dismantling of popular net neutrality rules “saved the internet,” and that restoring the rules would harm the “vibrant and competitive” U.S. broadband market:

“Such regulations are entirely unnecessary in today’s vibrant and competitive broadband marketplace, and to restore them would be finding a solution in search of a problem.”

That the telecom industry is already using proxy organizations to make up nonsense about a monopoly-dominated, barely competitive U.S. broadband industry being “vibrant” speaks for itself. These kind of posts are comically lazy, and mindlessly repurpose false claims like the idea that net neutrality (for the brief window it existed) hurt U.S. broadband investment (which is documented as false):

“This decision hampered capital investments with a 20 percent reduction in spending during the two years they were in effect and delayed new broadband deployment and innovation.”

The folks making these kinds of posts don’t really care about factual reality. They just repeat the same false claims over and over again in the hopes of seeding them into the brains of a lazy public and press. And as we saw with the last two decades of net neutrality bickering, it generally works. Here I am deflating the same claims industry marionettes have been making for twenty straight years.

As noted previously I’m not entirely convinced yet that the Biden/Rosenworcel FCC actually has the backbone to fully revisit net neutrality. I imagine they’ll implement something that sounds much like net neutrality, but lacks the full legal backing of the original, 2015 ruling. I expect them to half-ass it. I hope to be surprised.

But instead of spending another decade bickering and debating with telecom-backed proxy organizations paid to be inflexible, I think it’s important to keep the conversation centered on the real problem: concentrated, unchecked telecom monopoly power and the corrupt politicians that protect it.

Net neutrality rules were an imperfect, stopgap measure to stop powerful telecom monopolies from abusing their market power to harm consumers and competitors alike. And while the rules were useful, the real underlying problem with U.S. broadband is caused by concentrated regional monopolization, industry consolidation, feckless regulatory oversight, and a pointed lack of competition.

U.S. policymakers aren’t actually interested in fixing this problem, in part because companies like AT&T and Comcast wield massive lobbying influence, but also because those monopolies are tethered to our first responder networks and domestic surveillance systems. Companies like AT&T are, in many ways, part of the government itself, making sabotaging consumer protection efforts easier than ever.

Yes, we’re keen on throwing untold billions in subsidies at the problem every few years, but when it comes to holding giant telecom monopolies accountable for consumer abuses or even outright fraud, federal policymakers have been napping for the better part of the last decade. Whatever this next round of ridiculous net neutrality bickering looks like, don’t let it take your eye off the actual ball.

Filed Under: broadband, competition, fcc, high speed internet, monopolies, net neutrality

A Small Percentage Of Skyrim’s Sales Were On Non-Microsoft Platforms; Its Sequel Will Be Microsoft Exclusive

Overhype

from the to-spite-your-face dept

So, the fact that Microsoft would be taking the next game in the Elder Scrolls series, the 6th game, to Xbox and PC exclusively isn’t the world’s biggest surprise. Xbox chief Phil Spencer made waves back in 2021 (before all the drama surrounding Microsoft’s future acquisition of Activision Blizzard) noting that he saw advantages to making Elder Scrolls 6 exclusive to Microsoft systems. That wasn’t seen as a fully official statement of fact, however, and fans held out hope that maybe Microsoft would change its mind. With some recent reveals of internal Microsoft documents coming out of the Microsoft/FTC battle, however, we can pretty much put all that hope to rest.

The trend line is pretty clear in the image above. As time has gone on since Microsoft acquired Zenimax, more and more titles have been pulled back into Microsoft platform exclusives. Notably, this is also in contradiction to statements Spencer himself made years ago about exclusivity, in which he often made comments suggesting that wasn’t something Microsoft was particularly interested in.

Okay, so it’s interesting, but mostly confirming what was already being anticipated, so why are we talking about it? Well, because taking the next Elder Scrolls title exclusive deserves a bit deeper of a dive than we’ve done previously. Microsoft clearly has some kind of strategy in mind with all of this, but I can’t for the life of me figure out what it would be. The obvious answers really point to only three potential options: Microsoft wants to use exclusives to push more Xbox sales, to push more gamers into PC gaming and off of consoles, or some combination of the two.

Here’s the problem, though. The best sales figures I can find suggest that by August of this year the PlayStation 5 has outsold the Xbox Series X/S roughly 15 million to 11 million, respectively. And the sales delta in favor of Sony has been growing steadily over the past year, likely as supply crunch issues for the PlayStation get resolved. Sure, you say, but that’s what Microsoft is trying to combat.

Well, okay then, let’s look at sales figures for Skyrim, the prequel to the forthcoming Elder Scrolls 6. Now, the caveat that comes with those sales figures is that they are frustratingly incomplete. Steam isn’t particularly forthcoming with sales figures around specific titles, but the suspected sales figures for PC sit around 15 million units for the original version, and another 11 million for the Special Edition that was released in 2016. Xbox sales for the original version are just under 9 million on the 360 and just under 2 million on the Xone. That’s 44 million sales in total. I can’t seem to find sales figures I trust for the Special Edition on the Xbox Series X/S, but you would expect it to be something like a third less than the original, as was the case with the PC versions. Let’s call it 6 million, which might be a bit high. So we’ve got roughly 50 million unit sales of Skyrim on Microsoft systems.

Here’s the thing: recent reports indicates that Skyrim surpassed 60 million total unit sales several months ago. Let’s say the current total gross sales figures sit at something like 61 million. That would mean that Skyrim, not a Microsoft exclusive, sold something like 82% of its total units on Microsoft platforms. That isn’t the same as being totally exclusive, but it’s awfully damned close for one of the best selling games of all time.

And yet Microsoft sees taking its sequel exclusive as a strategic move. But to accomplish what, exactly? Sell more Microsoft systems? The majority of the last game was sold on Microsoft systems anyway, so what’s the point? What percentage of the 10 million or so folks who bought Skyrim on other platforms will buy an Xbox or PC instead of a PS6 because this game and few others are exclusives? The answer isn’t half. It’s probably not even a quarter. It’s probably less than one-tenth, though admittedly this is speculation, but speculation based on past evidence.

So would the additional sales of those systems really be enough to offset taking what will be one of the most hotly anticipated games ever out of several money-making platforms?

I have a hard time believing that’s the case.

Filed Under: elder scrolls, exclusives, skyrim, video games
Companies: microsoft

Cops Lose CSAM Evidence Because They Couldn’t Be Bothered To Include Probable Cause In Their Warrant Application

Legal Issues

from the not-that-difficult-to-be-specific dept

As has been noted here before, it’s often the worst people that generate the best case law. People staring down the barrel of several years in prison are extremely motivated to find any reason to have the evidence against them dismissed. People not faced with the same reality rarely find a reason to trouble the courts with their complaints.

It’s also been noted here that “for the children” is a powerful motivator. It’s an argument that allows governments to expand their power and sidestep constitutional rights because — as it’s argued — doing otherwise means siding with those sexually exploiting children.

In this case, brought to us by FourthAmendment.com, both of these elements are present. The (allegedly) worst people challenged the way the government obtained evidence to use against them. And the government apparently felt that simply informing the court that this was a CSAM investigation would be all it needed to satisfy its probable cause requirements.

The Sixth Circuit Appeals Court has taken a look at this and decided [PDF] this is only going to hurt the government employees who couldn’t be bothered to do their jobs correctly. The published opinion says it takes more than what’s seen here to support a search of someone’s electronics.

It’s a short opinion, running only 18 pages. But it says what needs to be said: copy-pasting boilerplate isn’t an acceptable substitution for actual probable cause.

The case began with an overseas tip to the DHS, informing Homeland Security agents a US-based IP address was being used to view CSAM (child sexual abuse material). This IP address led DHS agents and Kentucky State Police officers to the home of Edward Lewis.

Lewis invited the officers and agents into his home. Shortly after, he was informed the government had reason to suspect “there was child sexual exploitation activity at the house.” Lewis signed a form consenting to a search of his home and a couple of his devices.

A forensic examiner generated a “preview” of Lewis’s laptop, revealing file names presumed to be indicative of CSAM. Thumbnail images obtained during the preview appeared to confirm this — images that were created by Lewis recording his cousin’s children while they bathed. At no point were any of the files opened or examined further.

Following a call to a local prosecutor, Detective Gatson of the Kentucky State Police decided to obtain a search warrant.

Detective Gatson prepared a search warrant for Lewis’s house and any electronic devices stored inside the home that could contain evidence of child pornography, including the laptop and cell phone that Detective Gatson and Rollins had reviewed at Lewis’s home. Detective Gatson did not share the proposed search warrant or his affidavit in support of the warrant with a prosecutor, but instead took the documents directly to a Franklin County judge. Detective Gatson did not provide the state judge with any additional information beyond what he included in the proposed search warrant and his affidavit. The state judge signed the search warrant.

So far, so good. A warrant was obtained, a judge signed it, the warrant was executed, and evidence was obtained.

Actually, it’s not so good. The warrant was filled with words suggesting probable cause, but the words were ultimately meaningless since they had little to do with the specifics of this investigation.

The lower court agreed there wasn’t much in terms of actual probable cause, but granted good faith to the government because… well, a judge had signed it. So, even if the judge was wrong to do so, the cops were right to rely on it.

Not so fast, says the Sixth Circuit.

The government does not dispute that Detective Gatson’s affidavit failed to establish probable cause. “Detective Gatson provided the state judge only one fact in support of the existence of probable cause: that a search of Mr. Lewis’s laptop and cell phone had occurred.” Absent additional information, such as a description of the evidence uncovered during that search, Detective Gatson’s affidavit merely stated his belief that Lewis had viewed child pornography. That conclusory statement was too vague and insubstantial to establish probable cause to search Lewis’s electronic devices. The search warrant that was issued based on Detective Gatson’s affidavit therefore violated the Fourth Amendment’s probable-cause requirement.

Whether it was haste or laziness on Detective Gatson’s part that led to him deciding it wasn’t worth describing what had been observed during the cursory search of Lewis’s laptop, the end result is the same: no probable cause was established. That Gatson decided the warrant application should be 99% boilerplate and 1% probable cause is on Gatson. And that means the warrant is invalid.

But wait! If a judge signed it, surely the execution of the warrant was in good faith? Wrong again, says the Sixth Circuit.

Considering the complete lack of factual information included in Detective Gatson’s affidavit, we hold that no reasonable officer would rely on the affidavit to establish probable cause to believe that Lewis’s electronic devices would contain evidence of a child sexual-exploitation offense or any other crime.

In addition to buying donuts for the KSP every morning for the foreseeable, one would hope this detective has been instructed to attend a few AFFIDAVIT 101 classes. I mean, this is everything wrong with this warrant, as the Appeals Court points out:

As discussed above, the non-boilerplate portion of Detective Gatson’s affidavit begins by stating that “[a]n HSI investigation identified Edward L Lewis . . . as a person of interest.” The affidavit does not explain what “HSI” stands for, why HSI considered Lewis to be a person of interest, or the significance of HSI’s person-ofinterest designation. Reading that initial portion of Detective Gatson’s affidavit, a judge would have no factual basis upon which to conclude that Lewis may have committed any crime, let alone the specific crime of child sexual exploitation as defined by Kentucky law.

Next, the affidavit states that Lewis “consent[ed] to [a] search [of] his laptop and cell phone” and that “[d]uring [the] search it became apparent that Mr. Lewis had used his laptop to view images of child sexual exploitation.” This section clearly expresses Detective Gatson’s belief that Lewis had committed a crime, but it does not provide a factual basis upon which a magistrate could independently reach that conclusion. Indeed, Detective Gatson’s conclusion that “it became apparent that” Lewis had “view[ed] images of child sexual exploitation” was “a
mere conclusory statement that [gave] the magistrate virtually no basis at all for making a judgment regarding probable cause.” Illinois v. Gates, 462 U.S. 213, 239 (1983). A magistrate
could conclude that there was probable cause to search Lewis’s electronic devices only by substituting Detective Gatson’s evaluation of the evidence for the magistrate’s own evaluation.

Lastly, the affidavit states that “[b]ased on [Detective Gatson’s] knowledge, experience and training, Edward L Lewis has demonstrated a pattern of criminal activity related to child pornography, and there is a reasonable likelihood that the user treats child pornography as a
valuable commodity to be retained and collected, a characteristic common to many people interested in child pornography.” This final statement likewise fails to set forth any factual information. It is tantamount to a statement that “probable cause existed”—the very definition of a conclusory statement.

Gatson should have done better with the warrant application. And, because he didn’t, no one should have felt it was reliable, even with a judge’s signature.

By omitting the essential facts of his investigation and communicating only his bottomline conclusion, Detective Gatson asked the magistrate to find probable cause based solely on his
say-so. “No reasonable officer could have believed” under those circumstances “that the
affidavit was not so lacking in indicia of probable cause as to be reliable.”

And that leads up back to the signature this warrant application obtained. If no “reasonable officer” could rely on it, how could the judge possibly have felt this application — one completely devoid of probable cause — was something worth their signature? We’ll never know because judges are completely immune from legal action arising from their approval of obviously deficient warrants.

But, setting aside this inexplicable judicial approval of this warrant, the problem detailed here starts with the investigator. “Training and experience” is a completely empty phrase when you don’t apply that knowledge when seeking search warrants.

Neither the laws nor the facts are complex. A law-enforcement officer with as much training and experience as Detective Gatson—and indeed any reasonable law-enforcement officer—should know that a warrant affidavit must provide enough non-conclusory information to allow a neutral magistrate to determine whether there is probable cause.

That’s why the warrant fails and that’s why the good faith exception doesn’t apply, despite the initial judicial approval of Gatson’s deficient warrant.

Rejecting the application of the good-faith exception is necessary to demonstrate that Detective Gatson and the other officers had a duty to ensure that the affidavit was free of obvious constitutional defects and to underscore the costs of not discharging that duty.

The warrant is dead. The evidence obtained with it? Gone. The conviction predicated on this evidence? Vacated. And that all could have been prevented if Detective Gatson had taken just a bit more time to actually write a warrant application, rather than just fill it with copy-pasted boilerplate. For someone presumably serious about prosecuting crimes against children, Detective Gatson did nothing but put the victims of this alleged crime that much further away from seeing justice done.

Filed Under: 4th amendment, 6th circuit, csam, edward lewis, evidence, kentucky state police, probable cause, warrant