This Week In Techdirt History: October 17th - 23rd

from the 'twas-ever-thus dept

Five Years Ago

This week in 2016, we followed up on the previous Friday's ridiculous arrest of Amy Goodman for covering the North Dakota oil pipeline protests, with prosecutors changing their charges from trespassing to the even more ridiculous charge of rioting, only to have them rejected by a judge. An appeals court ruling confirmed what everyone knew about NSA surveillance — that it could be used to investigate domestic suspects — while a tribunal in the UK determined that intelligence agencies there had been illegally collecting data in bulk for more than a decade. Comcast was sued for misleading feeds that it claimed were about "transparency", T-Mobile was fined by the FCC for abusing the definition of "unlimited" data, and the FTC was warning that AT&T's court victory on throttling could screw over consumers for decades to come. Meanwhile, Team Prenda suffered yet another huge loss with an order to pay over $650,000 for a bogus defamation lawsuit.

Ten Years Ago

This week in 2011, copyright troll lawyer Evan Stone was appealing a judicial slapdown and sanctions, another mass infringement lawyer was complaining about the number of people fighting back, and Righthaven was still trying to avoid paying legal fees (though the court wasn't having it) while also facing an imminent dismissal in yet another lawsuit. Ron Wyden was continuing to point out the problems with PROTECT IP while we took a look at the connection between that bill and Wikileaks censorship. This was also the week that we first wrote about the birth of CreativeAmerica, the latest astroturf organization from the entertainment industry.

Fifteen Years Ago

This week in 2006, Belgian newspapers were doubling down on their "victory" in getting delisted by Google with demands to be removed from MSN as well, while a News.com editor was using the fight as a springboard for a ridiculous column about how Google is "immoral". Mostly, though, things were shaking out regarding Google's YouTube acquisition: it was causing turbulence for Google's existing advertising deals, there was a revelation that YouTube had given equity to record labels on the morning of the deal, and we noted that attacks from politicians might be an even bigger deal than attacks from the entertainment industry (and Universal Music chose this week to sue a bunch of other video sites instead). Meanwhile, the Authors Guild lawsuit over Google's book scanning was getting off to a very, very slow start.

Filed Under: history, look back

A Drug Dog's Nose Poking Through The Open Window Of A Car Is Unconstitutional, Says Idaho's Top Court

from the K-9s-are-tire-chalk dept

How much of a violation needs to take place before it's a Constitutional violation? It's a trick question, at least in the hands of the right judge. With the wrong judge, a minimal violation is considered excusable, or at least salvageable by any number of Fourth Amendment exceptions.

But with the right judge, any Fourth Amendment violation is a Fourth Amendment violation, no matter how small or how fleeting it is. That's how we get to this decision [PDF], handed down by the Supreme Court of Idaho, which not only calls on cops to do better with their drug dog handling, but also tips the hat to recent decisions involving parking enforcement measures. (via FourthAmendment.com)

Here are the facts of the case:

In March 2019, police officers stopped Howard for a traffic violation and took him into custody after discovering an outstanding warrant for his arrest. Officers then brought in a drug-sniffing dog (“Pico”) to sniff the exterior of the car. Pico alerted to the presence of illegal drugs, and a subsequent search of the car uncovered methamphetamine, heroin, and drug paraphernalia. Neither Howard nor his passenger was the registered owner of the vehicle, and police contacted the owner who took possession of the vehicle at the scene.

After prosecutors charged Howard with drug trafficking offenses related to the heroin and methamphetamine, Howard moved to suppress all evidence arising from the search of the car. During the hearing on the motion, Howard argued Pico momentarily put his nose through the open window of the car before giving his final, trained response to indicate the presence of illegal drugs, and that this was a trespass constituting an unlawful search in violation of his Fourth Amendment rights under United States v. Jones, 565 U.S. 400 (2012). The only witness testifying at the hearing was Officer Amy Knisley, Pico’s handler. A portion of Knisley’s body camera footage showing the dog sniff was also admitted into evidence.

The district court was fine with Pico's momentary intrusion and denied the motion to suppress. It said that because the sniff was of the dog's own volition, it couldn't possibly have been a rights violation.

The district court denied Howard’s motion to suppress because it found the Court of Appeals opinion in State v. Naranjo, 159 Idaho 258, 359 P.3d 1055 (Ct. App. 2015), was controlling. In Naranjo, the Court of Appeals held that a drug dog’s sniff through the open window of a vehicle had been “instinctual”—as opposed to facilitated or encouraged by the police—and therefore was not a “search” for the purposes of the Fourth Amendment.

The challenge of the search pointed to the Supreme Court's decision in Jones, which found intrusions -- however minimal -- into private property were unconstitutional without a warrant or any applicable warrant exception. In that case, officers placed a tracking device on a parked car. That minimal intrusion (in service of a greater, more extended intrusion) was impermissible.

Idaho's Supreme Court agrees with the defendant. Jones is controlling here. The intrusion may have been minimal but it was still an intrusion.

We agree with Howard that Naranjo is inconsistent with Jones and that Pico’s entry was a search. Jones is clear that for purposes of the Fourth Amendment, a search occurs when the government trespasses in order to obtain information.

Then it points to a more recent Appeals Court decision that dealt with another form of minimal intrusion.

Though not squarely on point, and certainly not binding on this Court, we find that the Sixth Circuit Court of Appeals decision in Taylor v. City of Saginaw is instructive. In Taylor, the city enforced time limits for parking by tire chalking, i.e., placing chalk marks on the tread of car tires—marks that rub off as soon the cars are moved—to determine whether the cars have remained in place longer than allowed. The plaintiff, apparently a frequent recipient of parking tickets, alleged that the practice violated her Fourth Amendment rights. The city responded, in part, by arguing that chalking was not a search for purposes of the Fourth Amendment. The Sixth Circuit disagreed. It held that chalking, though a slight interference with private property, was nevertheless an interference for the purpose of obtaining information and therefore a “search” under Jones.

This was the same conclusion a California federal court reached last spring. A tire mark is a search. And, if that's upheld on appeal, there will be controlling precedent in Idaho (the Ninth Circuit, which also covers California) that aligns with the findings here.

And that finding is that it isn't the means or methods or length/depth of the intrusion. It's the intrusion that matters.

Like the marking of chalk on a car tire’s tread, a dog’s nose passing through an open window is a minimal interference with property. But the right to exclude others from one’s property is a fundamental tenet of property law, and we see no room in the Jones test for a de minimis exception.

That's the baseline. And the court says the government can't save its search by claiming the drug dog was in the process of alerting prior to the intrusion into the vehicle. The officer's testimony stated that the dog had not shown a "final" alert prior to sticking its nose through the window. Only after that did the dog sit, something the officer said was an "alert."

When the statements of Officer Kinsley’s belief are excluded from our consideration of her testimony, these are the facts that remain: (1) Pico is a certified drug dog trained to sit or lie down to indicate the presence of drugs; (2) Pico did not sit or lie down before entering the car; (3) at least sometimes Pico “freezes” or tries to “cheat the system” by looking at the officer for his reward before indicating as he has been trained to do; (4) Pico froze and looked back at the officer before entering the car. From these facts, we cannot know whether Pico’s freezing and looking back was a reliable indication that narcotics were present, and we cannot determine whether Officer Kinsley’s subjective belief was objectively reasonable. For instance, how often does Pico freeze or look back at the officer before giving a final, trained alert? Does Pico only freeze when in odor? Does Pico only try to “cheat the system” when narcotics are present?

That's the problem with four-legged probable cause. It's mostly up to the officer interpreting the dog's acts. And, without the benefit of dashcam or body camera recordings, these subjective takes become part of the official record and are difficult to challenge. This recounting of events raises enough questions about the dog's actions that the court is unwilling to call any of what's described above "probable cause."

This decision says the government can't have the evidence it obtained with the aid of an intrusive canine. And that means it can't have its conviction either. Going forward, cops in Idaho are going to need actual probable cause -- not just inconsistent dogs -- before searching people's cars during traffic stops.

Filed Under: 4th amendment, drug dogs, idaho, search

Donald Trump Asserts Fair Use, 'Absolute Immunity' In Lame Attempt To Evade Copyright Suit By Eddy Grant

from the and-then-we'll-take-it-higher dept

Eddy Grant, responsible for the banger Electric Avenue, has made it onto our pages a couple of times in the past, most recently over a copyright spat with Donald Trump. At issue in the lawsuit was the Trump campaign sending around a video of a "Trump/Pence" train zipping by, with a Biden hand-car chugging behind it. While there were lots of references to Biden sniffing people's hair (seriously, what is that?) and other silly jabs, the real problem is that the entire video has Electric Avenue playing as its soundtrack. Eddy Grant didn't like this, of course, and sued over it. Trump tried to get the suit tossed on fair use grounds, arguing that the use of the song was transformative... but that isn't how it works. Simply using the song in a way the author didn't intend doesn't make the use transformative. Were that the case, every commercial advertisement out there would feature copyrighted songs as backgrounds to selling all manner of things. Again, not how it works and the court refused to toss the suit in response to Trump's Motion to Dismiss.

And so now this whole case moves forward and Trump is once again asserting fair use in his answer to the complaint... but with a twist! More on the twist in a moment, but first the fair use argument.

Former President Trump denied Eddy Grant's copyright infringement claims in a formal response submitted to the court late Monday night.

"Defendants deny that they have willfully and wrongfully infringed Plaintiffs' copyrights," the response said. "Plaintiffs' claims against Defendants are barred, either in whole or in part, by the doctrines of fair use and/or nominative use."

So pretty much the same fair use argument that was made in Trump's initial motion to dismiss (embeded below). This argument almost certainly won't work. And, while I don't find myself arguing against fair use very often, this one doesn't make a whole lot of sense. The video used a significant portion of the song and the song was used in nearly the entire video in question. And, while Trump asserted the video was parody, it's not parody of Electric Avenue. That's the point of the parody defense: the use of a work in order to satirize it. That isn't what's happening here. The target of the satire is Joe Biden, not Eddy Grant or his song.

It seems like Trump's legal team might realize that argument is a loser as well, given that the added twist I mentioned earlier.

The former president also asserted Grant cannot sue him because of what Trump's attorneys called "Presidential absolute immunity."

So, here's the thing: someone really needs to get Donald Trump in a room, sit him down, and explain to him that he cannot simply shout "presidential immunity!" every time something in his life doesn't go the way he wants to make it magically go away. This immunity claim is something he's using with wild abandon, including in far more serious realms like in denying requested documents for the January 6th committee.

But this is far more absurd. It wasn't Donald Trump, the President, that put out this video. Rather, it was the Donald Trump campaign that did so and that campaign very much does not qualify for presidential immunity, "absolute" or otherwise. Immunity for presidents from prosecution or suit typically ends when that person is no longer president and, last time I checked, the subject of the mockery in the video is president now, not Donald Trump.

"Given the court's recent favorable determination, there are very few issues that remain to be resolved. We are confident that our clients' rights will ultimately be fully upheld and look forward to Mr. Trump fully explaining his actions," Grant's attorney, Brian Caplan, said in a statement provided to ABC News.

That's the sound of a lawyer quite confident in his case. And it's frankly quite hard to argue with him.

Filed Under: absolute immunity, campaign commercial, copyright, donald trump, eddy grant, electric avenue, fair use, presidential immunity, sovereign immunity

Virginia School Board Sues FOIA Recipients For Receiving FOIA'ed Documents It Handed To Them

from the nice-gov't-work-if-you-can-get-it dept

Yeah, it can suck when you fail to handle FOIA requests properly and give the public more information than you intended to. It sucks for the government. It doesn't suck for the public, which is rarely treated to anything more than the most minimal of transparency.

Unfortunately, government agencies don't always react well when they've screwed things up. Sometimes the blowback is limited to ineffectual shouting or paper waving. Sometimes, however, it's a lawsuit seeking a court order to prevent people from accessing (or sharing) documents they've legally obtained from a government agency.

Cut to Virginia, where it's the latter option being deployed:

A Virginia school board is suing two mothers, arguing that documents "inadvertently and mistakenly" released through a Freedom of Information Act request and shared online included confidential information.

The Goldwater Institute on Thursday filed a motion with a Virginia judge to dismiss a lawsuit filed by the Fairfax County School Board against Debra Tisler, who obtained documents from the board through a Freedom of Information Act request, and Callie Oettinger, who shared the redacted documents on her website.

The lawsuit [PDF] claims the Fairfax County Public School Board never meant to release the information it released, which included personal information about students. Federal law forbids the release of this information to unauthorized parties by government agencies.

But that means nothing in the context of this lawsuit. The School Board can be held liable by others for releasing this information. The recipients of this information did nothing wrong, despite the litigious protestations otherwise. The complaint is mostly a list of what the Board did wrong, including failing to subject the FOIA release to review by its legal counsel before sending a link to the Dropbox file to the records requesters.

To correct this, the Board repeatedly contacted the recipient. And it was continually ignored… up until it sent multiple physical notifications, at which point the recipient of all of these notifications told the School Board to stop harassing her.

Copies of these documents were posted publicly, but sensitive student data was redacted by the recipients. The Board felt this wasn't enough of a capitulation, so it took legal action, which then resulted in the removal of the files from the recipient's website.

The Board claims in its filing that it has a legal right to go back in time and undo its mistakes by forcing the FOIA requesters to basically pretend they never received the unredacted information. The Goldwater Institute has stepped in to represent the records requesters and its opposition motion [PDF] points out just how wrong the Board is about the law and the First Amendment.

Only the most pressing government interest—such as the publication of troop movements during wartime—can justify the imposition of such a restraint. Id. at 726 (Brennan, J., concurring). But no such interest is identified in the board’s Complaint or its motion for an injunction. On the contrary, the sole bases it asserts for blocking Ms. Oettinger and Ms. Tisler from disseminating the information are the fact that the board could have chosen to withhold some of this information under the VFOIA (though it did not do so), and that some of the documents could be covered by attorney-client privilege between the board and its attorneys. Complaint ¶¶ 40, 44. That is constitutionally insufficient and irrelevant.

The Board's demands are unconstitutional and there is no precedent that says otherwise.

They are government records, lawfully obtained, and Ms. Tisler and Ms. Oettinger have a right to disseminate them, as protected by the rule of Smith, New York Times, and Bartnicki. Even if the documents were inadvertently turned over, they have both a constitutional right and a legitimate democratic purpose for publishing them. For the government to demand that the documents be removed from publication—i.e., censored—is contrary to all constitutional precedent.

None of that precendent appears to matter to the court. It has already granted the Board's injunction.

Last week, a state judge issued an order barring the women from sharing the documents pending further order of the court, and Oettinger subsequently took the documents off her website.

Hopefully now that an adversarial party has entered the legal battle, the court will be forced to reconsider its granting of this injunction. The government should not be allowed to use courts like time machines to erase its mistakes. It should have to live with them, especially when the inadvertently-released documents deal with issues of public interest, like public school spending. The Board's arguments are mostly admissions of wrongdoing on its own part for which it should be held accountable. Instead it has asked the court to punish people who've done nothing wrong.

Filed Under: callie oettinger, debra tisler, fairfax county, foia, school board, transparency, virginia

Australian Privacy Commissioner Says 7-Eleven Broke Privacy Laws By Scanning Customers' Faces At Survey Kiosks

from the small-privacy-breach-with-larger-repercussions dept

Of all the places to come across illegal facial recognition tech deployment, a convenience store chain is certainly one of the strangest. The tech wasn't deployed to stop shoplifting or keep unwanted people off the premises. Instead, somewhat ironically, it was deployed to help 7-Eleven convenience stores quantify how well it was doing in the customer service department.

Here's Campbell Kawn for ZDNet (via Slashdot):

In Australia, the country's information commissioner has found that 7-Eleven breached customers' privacy by collecting their sensitive biometric information without adequate notice or consent.

From June 2020 to August 2021, 7-Eleven conducted surveys that required customers to fill out information on tablets with built-in cameras. These tablets, which were installed in 700 stores, captured customers' facial images at two points during the survey-taking process -- when the individual first engaged with the tablet, and after they completed the survey.

After becoming aware of this activity in July last year, the Office of the Australian Information Commissioner (OAIC) commenced an investigation into 7-Eleven's survey.

The investigation [PDF] says 7-Eleven handled pretty much everything about this badly. It also shows the company tried to distance itself from its own tablet-based survey by blaming the third-party vendor handling the survey on its behalf.

The facial images were collected twice during the survey and stored locally on the tablets for about 20 seconds. After that, they went to the third party's servers, where they were processed and converted into an algorithmic representation of the face. The original images were then deleted from the device used to perform the survey.

These "representations" were then used to check for matches on other surveys. This was done to detect any potential gaming of the system by individuals repeatedly performing surveys and to make guesses about the age and gender of survey takers. All of that data was deleted after seven days. In total, 1.6 million surveys were performed.

7-Eleven argued this was not a violation of Australian law because the images were not used to identify, track, or monitor respondents. It also said it had no access to facial images on the local device, nor any access to images once they had been moved to the third party servers.

Wrong, says the information commissioner. The problem isn't how the collected information was handled. The problem is how it was collected. 7-Eleven needed consent from survey takers and didn't get it. The commissioner found "no evidence" individuals "expressly" agreed to have their biometric information collected by 7-Eleven.

7-Eleven argued it did get at least implied consent. As evidence of this it offered the blanket notice displayed in front of all stores:

Site is under constant video surveillance.

By entering the store you consent to facial recognition cameras capturing and storing your image.

It also pointed to its privacy policy on its website -- something survey takers weren't presented with when taking surveys.

7-Eleven may also collect photographic or biometric information from users of our 7-Eleven App and visitors to our stores, again, where you have provided your consent. 7-Eleven collects and holds such information for the purposes of identity verification.

None of this is sufficient, says the commissioner.

Consent may not be implied if an individual’s consent is ambiguous or there is reasonable doubt about the individual’s intention. While I accept that use of the tablet was voluntary, I am not satisfied that the act of using the tablet unambiguously indicated an individual’s agreement to collect their facial image and faceprint, in circumstances where:

There was no information provided on or in the vicinity of the tablet, or during the process of completing the survey, about the respondent’s collection of facial images and faceprints.

The Store Notices were unclear, and, given the prevalence of these kind of notices in stores and public places, may have created an impression that the respondent captured customers’ images using a facial recognition CCTV camera as part of surveillance of the store.

The respondent’s Privacy Policy did not link the collection of photographic or biometric information to the use of in-store ‘feedback kiosks’.

Non-specific blanket statements about possible collections are not the same thing as informing survey takers prior to taking a survey that their biometric information will definitely be collected if they fill out a survey.

That's some lawbreaking right there. The company that processed the facial images on behalf of 7-Eleven is ordered to destroy all faceprints collected by this survey. It's also forbidden from engaging in this sort of thing again without securing explicit permission from clients' customers. How much of a deterrent this is remains to be seen since the third party already declared all facial recognition data was deleted seven days after it was collected and processed.

The greater benefit of a ruling like this -- especially one that deals with information gathered irresponsibly but apparently handled with more care once it was harvested -- is the official reminder it sends to all Australian entities that may currently believe a link to a privacy policy buried on the bottom of a corporation's website home page is all that's needed to obtain "consent" for collection of personal info.

Filed Under: australia, convenience stores, facial recognition, privacy
Companies: 7-eleven

Missouri Governor Doubles Down On 'View Source' Hacking Claim; PAC Now Fundraising Over This Bizarrely Stupid Claim

from the wtf-missouri dept

Hey Missouri: stop electing technically illiterate dipshits. First you had Claire McCaskill, one of the key sponsors of FOSTA (who is still defending it years later). You got rid of her, but replaced her with Josh Hawley, who seems to think his main job in the Senate (besides whipping up support for insurrectionists and planning his run for the Presidency) is to destroy the internet and reshape it according to his own personal vision.

And then there's your governor. We wrote about him a few years ago when he claimed (ridiculously) that the 1st Amendment meant he could withhold public records (which is not how any of this works). But, of course, last week, his tech ignorance broke into prime time after the St. Louis Post-Dispatch ethically disclosed that the state's Department of Elementary and Secondary Education (DESE) website was including teacher & administrator social security numbers in the HTML. DESE pulled down the pages, but not before calling the journalists "hackers." Parson then doubled down and called for the journalists to be prosecuted. And then kept insisting that viewing HTML source code was hacking.

For the past week people on Twitter have been repeatedly mocking Parson for this, but he just won't give up, and neither will the United Missouri PAC that is a huge Parson supporter and was even fined last year by the Missouri Ethics Commission over improper contributions and failure to report the contributions to Parson.

Earlier this week, United Missouri seemed to think that Parson's blatant technical illiteracy was worth doubling down on and turning into a culture war against "the fake news." It produced a video that is so embarrassing and cringeworthy it feels like a parody.

I mean, the transcript is so stupid that it makes me wonder about the quality of education in Missouri that someone could be this clueless.

The latest from the Missouri "fake news factory" is from the St. Louis Post-Dispatch, where a reporter has been digging around HTML code on a state website. The state technology division said the hacker took the records of at least 3 educators, decoded the HTML source code and viewed the social security numbers from the state website.

I mean, holy shit. HTML code is public. That's what "view source" is there for. There's no "digging around." And, incredibly, here United Missouri/Parson are admitting that the social security numbers were in HTML! THAT IS THE PROBLEM! No one should ever be putting SSNs in HTML. The fact that DESE put SSNs in HTML is the very problem that the reporters were highlighting. And if it wasn't actually a problem, why did DESE pull down the website in the first place? It's not hacking. It's showing that Parson's administration is incompetent.

And then, the video takes Parson's own failure to protect teachers and administrators in the state... and blames it on the reporters who (ethically) disclosed this negligent coding?

Governor Parson believes everyone is entitled to their privacy. Especially our teachers.

THEN WHY DID YOUR ADMINISTRATION REVEAL THEIR SOCIAL SECURITY NUMBERS IN HTML, YOU TECHNICALLY IGNORANT FOOLS? No one should ever be putting SSNs in HTML. The fact that they were there is the problem. Not the fact that these reporters alerted the state to their own coding (and data handling) error. The privacy breach is the state's fault, not the reporters. The reporters disclosed all of this in the most ethical manner possible: alerting the state and not publishing anything until after the leaked data was removed from the web.

Governor Parson is standing up to the fake news media and is committed to bringing to justice anyone who obtained private information. The St. Louis Post-Dispatch is purely playing politics. Exploiting private information is a squalid excuse for journalism. And hiding behind the noble principle of free speech to do it is shameful.

Note that they keep calling the St. Louis Post-Dispatch "fake news" but don't dispute a single thing they reported. So it's fake news, but also a crime? Furthermore, the only one who should be "brought to justice" is the state for putting social security numbers in HTML in the first place. And the only one "purely playing politics" appears to be Governor Mike Parson and his corrupt PAC.

And, of course, everyone with even the most basic understanding of HTML know that it's Parson who's full of shit here, as is clear from all the comments on the video:

I get that, these days, the Trumpian populists politicians think they can just make shit up and lie constantly and their ignorant base will lap it up, but this takes all that to new levels of stupid. You don't have to be a genius computer science grad to understand that you never ever put SSNs in HTML and that whoever did that is at fault here.

Filed Under: data breach, ethical disclosure, hacking, html, journalism, mike parson, missouri, view source
Companies: united missouri

Daily Deal: The All-in-One Microsoft, Cybersecurity, And Python Exam Prep Training Bundle

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

The All-in-One Microsoft, Cybersecurity, And Python Exam Prep Training Bundle has 6 courses to help you gain the skills needed to become a tech professional. The courses contain hands-on lessons and exam prep for Python MTA, ITIL, CompTIA Cybersecurity, and GDPR certification exams. The bundle is on sale for $29.

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

Want To Understand Why U.S. Broadband Sucks? Look At Frontier Communications In Wisconsin, West Virginia

from the do-not-pass-go,-do-not-collect-$200 dept

So for years I've noted if you really want to understand why U.S. broadband is so crappy, you should take a long, close look at Frontier Communications in states like West Virginia. For decades the ISP has provided slow and expensive service, routinely failed to upgrade or repair its network, and generally personified the typical bumbling, apathetic, regional monopoly. And its punishment, year after year, has generally been a parade of regulatory favors, tax breaks, and millions in subsidies. At no point do "telecom policy leaders" or politicians ever try to do much differently.

Case in point: Frontier, fresh off of an ugly bankruptcy, numerous AG and FTC lawsuits over repair delays, and repeated subsidy scandals, is positioning itself to nab yet more subsidies from the state of Wisconsin. Frontier is asking the state of for $35 million in additional grants, despite the fact Wisconsin was just one of several states whose AGs recently sued the company for being generally terrible. Folks familiar with the company argue it shouldn't be seeing a single, additional dime in taxpayer resources given fifteen years of scandal:

"I hope the state will seriously consider the track record of companies to understand which ones have a long record of meeting the needs of residents and businesses,” Christopher Mitchell, director of the Community Broadband Networks Initiative, a Minnesota-based think tank supporting communities’ telecommunications efforts, said in an interview with The Badger Project.

"Frankly, Frontier’s record suggests it should not receive a single additional dollar from any government,” he added. “Local companies, communities, and cooperatives have proven to be much better at turning public subsidies into needed networks."

Keep in mind Frontier has been accused of taking state and federal subsidies on several occasions, misleadingly billing the government extra, then basically just shrugging when asked for the money back. To date nobody has done much about any of it. Also keep in mind Frontier routinely lobbies for (and often ghost writes) state laws banning towns and cities from building their own broadband networks. They're also directly responsible for the gutting of state and federal regulatory and consumer protection authority. Facing little real competition and feckless oversight in most states, nothing much changes. By design.

Historically, state politicians and regulators ignore these kinds of problems, because, it should be made clear, they're corrupt. Regional monopolies find it immensely easy to throw a few bucks at state leaders in exchange for just mindless rubber stamping of whatever goal they're interested in (merger approvals, new subsidies, the gutting of consumer protections, tax breaks, zero accountability). That this strategy continually results in terrible, substandard, and expensive service never seems to enter into the picture. It's just rinse, wash, repeat in a long line of states.

The Wisconsin State Public Service Commission is expected to grant or deny Frontier's request by the end of the month. The company is also first in line to grab new federal broadband funding from the Biden FCC. It will be curious to see if just a parade of unprecedented scandal reduces Frontier's ability to have millions in additional taxpayer money thrown at it in the slightest. My guess is it doesn't. At all.

There are two, indisputable reasons U.S. broadband generally sucks: regional monopolization and the corruption that protects it. But when you see news articles, regulators, many think tankers, or politicians talking about broadband, notice how many are capable of even clearly acknowledging that fact, much less genuinely interested in actually doing anything about it.

Filed Under: broadband, competition, dsl, fcc, subsidies, telecom, upgrades, west virginia, wisconsin
Companies: frontier

Le Tigre Sues Barry Mann To Stop Copyright Threats Over Song, Lights Barry Mann On Fire As Well

from the oooooh-get-him dept

It takes a special kind of hubris to appropriate music and lyrics not just from another artist, but another cultural genre of artists, and then threaten someone else for "stealing" what you've "stolen". Meet Barry Mann. If that name doesn't sound terribly familiar to you, fear not, as he is known for the 1961 hit song Who Put The Bomp? and other songs from decades ago. And if that song title doesn't sound familiar, you've almost certainly heard the song. To jog your memory, it includes such made up words as "ramalama ding dong". See, those are called vocables: made up syllables used to effectuate rhythmic form rather than meaning. You can listen to the song below to get an idea of what I'm talking about.

"The Mann", which is what I'll be calling him from here on out, is still kicking at 82 and apparently is learning a new hobby: threatening other artists with copyright claims. He and/or his legal representatives apparently sent a cease and desist notice to Le Tigre, a feminist punk band, over a song called Decepticon. See, Decepticon takes a couple of lyrics found in The Mann's song and repurposes them to become a feminist anthem. For that and one additional reason that we'll get into later, Le Tigre filed suit for declaratory relief of The Mann's copyright infringement claim. Here is Decepticon so you can go hear for yourself just how copyright-infringe-y this all isn't.

Between the suit and the song itself, you should notice a number of things. First off, you may be thinking to yourself that this song sounds decidedly retro for punk music. That's because the song came out twenty years ago and has long been Le Tigre's most famous song. Why a lawsuit is only being filed now is an open question. In addition, the use of the lyrics is minimal and the song itself is nothing remotely like The Mann's song.

Additionally, even if Defendants had a legitimate claim to ownership of the small portion of Bomp lyrics at issue, they nonetheless have no copyright infringement claim against Le Tigre or its licensees because Le Tigre’s transformative use of those lyrics in Deceptacon is an emblematic case of fair use under Section 107 of the Copyright Act, 17 U.S.C. § 107.

Transformative use? Let's get into that. You may also have noticed that the lyrics are actually slightly different. For instance, the lyric to start the song is no longer "who put the bomp", it's "who took the bomp".

Deceptacon’s reference to and inversion of the Bomp lyrics at issue delivers a stinging indictment and parody of Bomp, which is clear from a comparison of the songs’ lyrics and sharply contrasting musical styles, as critics have noted over the decades. Bomp, written from a man’s perspective, begins with the statement: “I’d like to thank the guy who wrote the song that made my baby fall in love with me.” Bomp’s singer asks, “Who put the bomp in the bomp bah bomp bah bomp?” and “Who put the ram in the rama lama ding dong?” Deceptacon, by contrast, is a feminist anthem that begins with the proposition that music “is sucking my heart out of my mind” and continues to ask, “Who took the bomp from the bomp-a-lomp-a-lomp?” and “Who took the ram from the rama-lama-ding-dong?” Thus, Le Tigre’s use of the lyrics that appear in Bomp instills those lyrics with a new meaning that is directly at odds with and a clear criticism of the message in Bomp, which is precisely the sort of fair use that Section 107 of the Copyright Act is designed to protect.

But parody and criticism of what? Well, there certainly is the feminist angle to it, yes, and Le Tigre is well known for creating that sort of stinging lyrics within its songs. But not just the feminist critique. Remember the change from "put" to "took"? Well...

The Bomp lyrics putatively at issue are mainly comprised of song titles and non-lexical vocables (nonsense syllables used in music). But Mr. Mann did not create these vocables or song titles; rather, it appears that Mr. Mann and his cowriter copied them from Black doo-wop groups active during the late 1950s and early 1960s. Specifically, it appears that Mr. Mann took “bomp-bah-bomp-bah-bomp” from The Marcels’ distinctive version of “Blue Moon,” which sold over a million copies, and “rama lama ding dong” from the Edsels’ then-popular “Rama Lama Ding Dong.” In short, the Bomp lyrics at issue are not original to Mr. Mann, and Defendants have no legitimate copyright claim in them.

And that is how this all comes full circle, in a way. The Mann threatened a punk feminist group over a song it created with lyrics designed to specifically criticize how he appropriated those lyrics from black doo-wop groups in the 60s. Like I said, that takes a nearly impressive amount of hubris.

As far as copyright cases go, this should be an easy one for the courts.

Filed Under: barry mann, bomp, copyright, decepticon, fair use, le tigre, punk, ramalama ding dong, statute of limitations, transformative