While we chronicled the fall of Nikola, a company that promised over-the-road trucks built with hydrogen propulsion systems, it’s useful to note that it was literally only this past February that the company declared bankruptcy. What came before that was the company’s previous CEO, Trevor Milton. Milton made wild promises to investors in order to get more funding, including showing them video of its prototype truck zooming down a highway under its proprietary propulsion system. The only problem is that it was doing no such thing. Instead, it had been towed to the top of a hilly road and then it coasted down that road, with the footage being taken at a tilted camera angle to make it look like it was actually being driven when it wasn’t. Yes, it really was as cartoonish as that.
From there, the company suddenly lost a bunch of contracts, copyright was invoked in a failed attempt to silence criticism of its actions, and Milton was eventually convicted of fraud and sentenced to 4 years in jail. And then Donald Trump pardoned him, because of course he did. I’m sure it had nothing to do with the millions of dollars Milton donated to the Trump campaign and other Republican candidates, nor anything to do with Milton being represented by Brad Bondi, brother of current U.S. Attorney General Pam Bondi.
Milton never did a day in prison and lied publicly after his pardon, saying that the pardon indicated he was innocent, when it did no such thing. But never in my wildest dreams did I imagine that mere months after that pardon for fraud would Milton suddenly become the CEO of a well-established company.
The disgraced founder of Nikola Corp., who was sentenced to four years in prison for fraud for lying to investors about technological breakthroughs at the once-hyped electric-truck maker, has been named CEO of SyberJet Aircraft, the company announced Tuesday.
In a press release, SyberJet said Milton would guide the development of a new nine-seat light jet called the SyberJet SJ36. The company said it would be the fastest jet of its kind ever developed, with speeds clocking in as high as Mach .88.
Now, SyberJet is not a publicly traded company, unlike Nikola. But it is backed by private equity, meaning raising funds for this ambitious project is going to be important. And Milton has a lot of, ahem, runway to get this new jet off the ground. Deliveries on the product aren’t expected until 2032.
There is something of a con job already happening on the SyberJet website, where you can see this.
“Renowned”? That should be “infamous”. And these claims about what Milton did and did not bring to market are pretty laughable. The context about what happened after a few hundred trucks got sold is pretty damned important. For fuck’s sake, guys.
And I do mean “guys.” This is the kind of failing upward you can only get from a white guy. The ink on Milton’s pardon isn’t even dry yet, and he’s already a CEO of another company. And they say you can’t get justice in America anymore.
New documents and court records obtained by EFF show that Texas deputies queried Flock Safety’s surveillance data in an abortion investigation, contradicting the narrative promoted by the company and the Johnson County Sheriff that she was “being searched for as a missing person,” and that “it was about her safety.”
The new information shows that deputies had initiated a “death investigation” of a “non-viable fetus,” logged evidence of a woman’s self-managed abortion, and consulted prosecutors about possibly charging her.
Johnson County Sheriff Adam King repeatedly denied the automated license plate reader (ALPR) search was related to enforcing Texas’s abortion ban, and Flock Safety called media accounts “false,” “misleading” and “clickbait.” However, according to a sworn affidavit by the lead detective, the case was in fact a death investigation in response to a report of an abortion, and deputies collected documentation of the abortion from the “reporting person,” her alleged romantic partner. The death investigation remained open for weeks, with detectives interviewing the woman and reviewing her text messages about the abortion.
The documents show that the Johnson County District Attorney’s Office informed deputies that “the State could not statutorily charge [her] for taking the pill to cause the abortion or miscarriage of the non-viable fetus.”
An excerpt from the JCSO detective’s sworn affidavit.
The records include previously unreported details about the case that shocked public officials and reproductive justice advocates across the country when it was first reported by 404 Media in May. The case serves as a clear warning sign that when data from ALPRs is shared across state lines, it can put people at risk, including abortion seekers. And, in this case, the use may have run afoul of laws in Washington and Illinois.
A False Narrative Emerges
Last May, 404 Media obtained data revealing the Johnson County Sheriff’s Office conducted a nationwide search of more than 83,000 Flock ALPR cameras, giving the reason in the search log: “had an abortion, search for female.” Both the Sheriff’s Office and Flock Safety have attempted to downplay the search as akin to a search for a missing person, claiming deputies were only looking for the woman to “check on her welfare” and that officers found a large amount of blood at the scene – a claim now contradicted by the responding investigator’s affidavit. Flock Safety went so far as to assert that journalists and advocates covering the story intentionally misrepresented the facts, describing it as “misreporting” and “clickbait-driven.”
As Flock wrote of EFF’s previous commentary on this case (bold in original statement):
Earlier this month, there was purposefully misleading reporting that a Texas police officer with the Johnson County Sheriff’s Office used LPR “to target people seeking reproductive healthcare.” This organization is actively perpetuating narratives that have been proven false, even after the record has been corrected.
According to the Sheriff in Johnson County himself, this claim is unequivocally false.
… No charges were ever filed against the woman and she was never under criminal investigation by Johnson County. She was being searched for as a missing person, not as a suspect of a crime.
That sheriff has since been arrested and indicted on felony counts in an unrelated sexual harassment and whistleblower retaliation case. He has also been charged with aggravated perjury for allegedly lying to a grand jury. EFF filed public records requests with Johnson County to obtain a more definitive account of events.
The newly released incident report and affidavit unequivocally describe the case as a “death investigation” of a “non-viable fetus.” These documents also undermine the claim that the ALPR search was in response to a medical emergency, since, in fact, the abortion had occurred more than two weeks before deputies were called to investigate.
In recent years, anti-abortion advocates and prosecutors have increasingly attempted to use “fetal homicide” and “wrongful death” statutes – originally intended to protect pregnant people from violence – to criminalize abortion and pregnancy loss. These laws, which exist in dozens of states, establish legal personhood of fetuses and can be weaponized against people who end their own pregnancies or experience a miscarriage.
In fact, a new report from Pregnancy Justice found that in just the first two years since the Supreme Court’s decision in Dobbs, prosecutors initiated at least 412 cases charging pregnant people with crimes related to pregnancy, pregnancy loss, or birth–most under child neglect, endangerment, or abuse laws that were never intended to target pregnant people. Nine cases included allegations around individuals’ abortions, such as possession of abortion medication or attempts to obtain an abortion–instances just like this one. The report also highlights how, in many instances, prosecutors use tangentially related criminal charges to punish people for abortion, even when abortion itself is not illegal.
By framing their investigation of a self-administered abortion as a “death investigation” of a “non-viable fetus,” Texas law enforcement was signaling their intent to treat the woman’s self-managed abortion as a potential homicide, even though Texas law does not allow criminal charges to be brought against an individual for self-managing their own abortion.
The Investigator’s Sworn Account
Over two days in April, the woman went through the process of taking medication to induce an abortion. Two weeks later, her partner–who would later be charged with domestic violence against her–reported her to the sheriff’s office.
The documents confirm that the woman was not present at the home when the deputies “responded to the death (Non-viable fetus).” As part of the investigation, officers collected evidence that the man had assembled of the self-managed abortion, including photographs, the FedEx envelope the medication arrived in, and the instructions for self-administering the medication.
Another Johnson County official ran two searches through the ALPR database with the note “had an abortion, search for female,” according to Flock Safety search logs obtained by EFF. The first search, which has not been previously reported, probed 1,295 Flock Safety networks–composed of 17,684 different cameras–going back one week. The second search, which was originally exposed by 404 Media, was expanded to a full month of data across 6,809 networks, including 83,345 cameras. Both searches listed the same case number that appears on the death investigation/incident report obtained by EFF.
After collecting the evidence from the woman’s partner, the investigators say they consulted the district attorney’s office, only to be told they could not press charges against the woman.
An excerpt from the JCSO detective’s sworn affidavit.
Nevertheless, when the subject showed up at the Sheriff’s office a week later, officers were under the impression that she came to “to tell her side of the story about the non-viable fetus.” They interviewed her, inspected text messages about the abortion on her phone, and watched her write a timeline of events.
Only after all that did they learn that she actually wanted to report a violent assault by her partner–the same individual who had called the police to report her abortion. She alleged that less than an hour after the abortion, he choked her, put a gun to her head, and made her beg for her life. The man was ultimately charged in connection with the assault, and the case is ongoing.
This documented account runs completely counter to what law enforcement and Flock have said publicly about the case.
Johnson County Sheriff Adam King told 404 media: “Her family was worried that she was going to bleed to death, and we were trying to find her to get her to a hospital.” He later told the Dallas Morning News: “We were just trying to check on her welfare and get her to the doctor if needed, or to the hospital.”
The account by the detective on the scene makes no mention of concerned family members or a medical investigator. To the contrary, the affidavit says that they questioned the man as to why he “waited so long to report the incident,” and he responded that he needed to “process the event and call his family attorney.” The ALPR search was recorded 2.5 hours after the initial call came in, as documented in the investigation report.
The Desk Sergeant’s Report—One Month Later
EFF obtained a separate “case supplemental report” written by the sergeant who says he ran the May 9 ALPR searches.
The sergeant was not present at the scene, and his account was written belatedly on June 5, almost a month after the incident and nearly a week after 404 Media had already published the sheriff’s alternative account of the Flock Safety search, kicking off a national controversy. The sheriff’s office provided this sergeant’s report to Dallas Morning News.
In the report, the sergeant claims that the officers on the ground asked him to start “looking up” the woman due to there being “a large amount of blood” found at the residence—an unsubstantiated claim that is in conflict with the lead investigator’s affidavit. The sergeant repeatedly expresses that the situation was “not making sense.” He claims he was worried that the partner had hurt the woman and her children, so “to check their welfare,” he used TransUnion’s TLO commercial investigative database system to look up her address. Once he identified her vehicle, he ran the plate through the Flock database, returning hits in Dallas.
Two abortion-related searches in the JCSO’s Flock Safety ALPR audit log
The sergeant’s report, filed after the case attracted media attention, notably omits any mention of the abortion at the center of the investigation, although it does note that the caller claimed to have found a fetus. The report does not explain, or even address, why the sergeant used the phrase “had an abortion, search for female” as the official reason for the ALPR searches in the audit log.
It’s also unclear why the sergeant submitted the supplemental report at all, weeks after the incident. By that time, the lead investigator had already filed a sworn affidavit that contradicted the sergeant’s account. For example, the investigator, who was on the scene, does not describe finding any blood or taking blood samples into evidence, only photographs of what the partner believed to be the fetus.
One area where they concur: both reports are clearly marked as a “death investigation.”
Correcting the Record
Since 404 Media first reported on this case, King has perpetuated the false narrative, telling reporters that the woman was never under investigation, that officers had not considered charges against her, and that “it was all about her safety.”
But here are the facts:
The reports that have been released so far describe this as a death investigation.
The lead detective described himself as “working a death investigation… of a non-viable fetus” at the time he interviewed the woman (a week after the ALPR searches).
The detective wrote that they consulted the district attorney’s office about whether they could charge her for “taking the pill to cause the abortion or miscarriage of the non-viable fetus.” They were told they could not.
Investigators collected a lot of data, including photos and documentation of the abortion, and ran her through multiple databases. They even reviewed her text messages about the abortion.
The death investigation was open for more than a month.
The death investigation was only marked closed in mid-June, weeks after 404 Media’s article and a mere days before the Dallas Morning News published its report, in which the sheriff inaccurately claimed the woman “was not under investigation at any point.”
Flock has promoted this unsupported narrative on its blog and in multimediaappearances. We did not reach out to Flock for comment on this article, as their communications director previously told us the company will not answer our inquiries until we “correct the record and admit to your audience that you purposefully spread misinformation which you know to be untrue” about this case.
Consider the record corrected: It turns out the truth is even more damning than initially reported.
The Aftermath
In the aftermath of the original reporting, government officials began to take action. The networks searched by Johnson County included cameras in Illinois and Washington state, both states where abortion access is protected by law. Since then:
The Illinois Secretary of State has announced his intent to “crack down on unlawful use of license plate reader data,” and urged the state’s Attorney General to investigate the matter.
In California, which also has prohibitions on sharing ALPR out of state and for abortion-ban enforcement, the legislature cited the case in support of pending legislation to restrict ALPR use.
Ranking Members of the House Oversight Committee and one of its subcommittees launched a formal investigation into Flock’s role in “enabling invasive surveillance practices that threaten the privacy, safety, and civil liberties of women, immigrants, and other vulnerable Americans.”
Senator Ron Wyden secured a commitment from Flock to protect Oregonians’ data from out-of-state immigration and abortion-related queries.
In response to mounting pressure, Flock announced a series of new features supposedly designed to prevent future abuses. These include blocking “impermissible” searches, requiring that all searches include a “reason,” and implementing AI-driven audit alerts to flag suspicious activity. But as we’ve detailed elsewhere, these measures are cosmetic at best—easily circumvented by officers using vague search terms or reusing legitimate case numbers. The fundamental architecture that enabled the abuse remains unchanged.
Meanwhile, as the news continued to harm the company’s sales, Flock CEO Garrett Langley embarked on a press tour to smear reporters and others who had raised alarms about the usage. In an interview with Forbes, he even doubled down and extolled the use of the ALPR in this case.
So when I look at this, I go “this is everything’s working as it should be.” A family was concerned for a family member. They used Flock to help find her, when she could have been unwell. She was physically okay, which is great. But due to the political climate, this was really good clickbait.
Nothing about this is working as it should, but it is working as Flock designed.
The Danger of Unchecked Surveillance
This case reveals the fundamental danger of allowing companies like Flock Safety to build massive, interconnected surveillance networks that can be searched across state lines with minimal oversight. When a single search query can access more than 83,000 cameras spanning almost the entire country, the potential for abuse is staggering, particularly when weaponized against people seeking reproductive healthcare.
The searches in this case may have violated laws in states like Washington and Illinois, where restrictions exist specifically to prevent this kind of surveillance overreach. But those protections mean nothing when a Texas deputy can access cameras in those states with a few keystrokes, without external review that the search is legal and legitimate under local law. In this case, external agencies should have seen the word “abortion” and questioned the search, but the next time an officer is investigating such a case, they may use a more vague or misleading term to justify the search. In fact, it’s possible it has already happened.
ALPRs were marketed to the public as tools to find stolen cars and locate missing persons. Instead, they’ve become a dragnet that allows law enforcement to track anyone, anywhere, for any reason—including investigating people’s healthcare decisions. This case makes clear that neither the companies profiting from this technology nor the agencies deploying it can be trusted to tell the full story about how it’s being used.
States must ban law enforcement from using ALPRs to investigate healthcare decisions and prohibit sharing data across state lines. Local governments may try remedies like reducing data retention period to minutes instead of weeks or months—but, really, ending their ALPR programs altogether is the strongest way to protect their most vulnerable constituents. Without these safeguards, every license plate scan becomes a potential weapon against a person seeking healthcare.
The lawsuit between Palworld maker PocketPair and The Pokémon Co. (Nintendo included) is still ongoing. As the litigation progresses, PocketPair has been patching out some of the very content and gameplay mechanics that the Pokémon people complained about, which is unfortunate. The patents we’re talking about are quite broad in the realm of video games and, as I have been pointing out since early on, suffer under the existence of plenty of prior art.
Well, the prior art I mentioned is not the same as the prior art PocketPair brought up in its defense, but its there nonetheless. Going all the way back to April, the company has been pointing out that the things The Pokémon Co. got patents for have existed in gaming long before Nintendo claims to have invented them.
Defending itself against a patent about capture balls (Poke Balls) to capture/fight, Pocketpair points to Rune Factory 5, Titanfall 2, and Pikmin 3 as examples of games where players can release captured monsters “or a capture item (like a ball)” in any direction. Meanwhile, Octopath Traveller, Final Fantasy 14 and a Dark Souls 3 mod show players the chance of a likely capture when trying to tame a beast.
Pocketpair also apparently used Far Cry 5 and Tomb Raider as games that proved “there can be different types of throwable objects,” according to the report. While games such as The Legend of Zelda, Monster Hunter 4, Path of Exile, and Dragon Quest Builders, as well as mods for Minecraft and Fallout 4, were also namedropped.
That seems like quite a trove of examples to point the court to. Unless PocketPair is completely fabricating the similarity of what appears in those games and what is in these patents, it’s hard to imagine The Pokémon Co. coming out on top here. Given the company’s reputation, and Nintendo’s especially, I’m not particularly in the mood to give them the benefit of the doubt.
Especially when the companies also responded recently specifically to the examples that were game mods by saying, “Nuh uh! You can’t use mods as examples of prior art! It’s not fair!”
One of the examples highlighted by Pocketpair was the Dark Souls 3 mod Pocket Souls, a Pokémon-like mod for FromSoftware‘s 2016 action RPG. However, Nintendo argued that mods don’t count as prior art since they can’t stand alone without their base games, but speaking to Grokludo in a video interview (below), US patent law expert and Banner Witcoff IP litigation and patent prosecution partner Kirk Sigmon argues that “Nintendo is so wrong, it hurts.”
Adding that “I don’t know why they made that argument,” Sigmon notes that “there’s some nuance in Japanese law that might dictate where they’re coming from,” but generally speaking, “when we’re talking about what we call prior art for the world of patents, it doesn’t have to be perfect. In fact, it doesn’t actually have to be functional, right? There have been plenty of instances in which prior art has been used that is not even a computer program in the first place.”
Sigmon was also featured in our post about how the USPTO recently abdicated its responsibilities when examining two new patents that were granted to Nintendo. He’s fascinating and the embed for the full interview is below.
The idea that mods can’t count as prior art is very, very silly. And while Sigmon does note that there may be specifics in Japanese patent law that might be powering this claim from The Pokémon Co., he has practiced patent law in Japan, so he knows what he’s talking about.
“There may be some nuance there in Japanese law that I’m not aware of. I’ve done quite a bit of Japanese patent law myself, but you know, there may be some nuance there,” Sigmon acknowledges. “But in general I think that that argument is a loser. It’s one that is fixated too highly on form over function, which is just a bad idea, because where do we end that dispute, right? There are plenty of Unreal Engine 5 games, are those mods too, just because they’re running on a singular engine? It gets into this weird dispute that no one knows what the hell’s going on anymore. So, from my perspective, it’s just a loser argument from Nintendo. I think that they’re trying to throw a Hail Mary because there’s so much out there.”
It’s almost as though The Pokémon Co.’s lawyers are confusing copyright and patent law, honestly. This sounds so close to the more generally correct claim that mods don’t get copyright protection because they are a derivative work. But that isn’t how patents generally work at all.
I, too, will acknowledge that I’m no expert in the realm of Japanese patent law, but given the preponderance of prior art examples, and this flailing about mods from The Pokémon Co., it’s starting to look like this lawsuit is a stinker and should be dropped.
In what may be the most legally absurd aftermath of a rap battle in hip-hop history, Drake’s preposterously silly lawsuit against Universal Music has met its predictable end. The artist sued his own record label—not Kendrick Lamar himself—for the crime of also distributing Lamar’s devastating diss track Not Like Us. The judge overseeing the case has now dismissed it entirely, delivering what amounts to a final judicial verse in this musical feud.
Judge Jeannette Vargas recognizes a killer song when she hears one:
This case arises from perhaps the most infamous rap battle in the genre’s history, the vitriolic war of words that erupted between superstar recording artists Aubrey Drake Graham (“Drake”) and Kendrick Lamar Duckworth (“Lamar” or “Kendrick Lamar”) in the spring of 2024. Over the course of 16 days, the two artists released eight so-called “diss tracks,” with increasingly heated rhetoric, loaded accusations, and violent imagery. The penultimate song of this feud, “Not Like Us” by Kendrick Lamar, dealt the metaphorical killing blow. The song contains lyrics explicitly accusing Drake of being a pedophile, set to a catchy beat and propulsive bassline. “Not Like Us” went on to become a cultural sensation, achieving immense commercial success and critical acclaim.
When you sue over a song, and the judge notes that the song has a catchy beat and a propulsive bassline, let alone “dealt the metaphorical killing blow,” I don’t think your lawsuit is going to survive. The court dumps it while noting that just because randos commenting on social media now call Drake a pedophile based on the song, that doesn’t make the song defamatory:
The Court holds, based upon a full consideration of the context in which “Not Like Us” was published, that a reasonable listener could not have concluded that “Not Like Us” was conveying objective facts about Drake. The views expressed by users @kaioken8026, @mrright8439, and @ZxZNebula, and the other YouTube and Instagram commentators quoted in the Complaint, Am. Compl., ¶¶ 73-74, do not alter the Court’s analysis. In a world in which billions of people are active online, support for almost any proposition, no matter how farfetched, fantastical or unreasonable, can be found with little effort in any number of comment sections, chat rooms, and servers. “[T]hat some readers may infer a defamatory meaning from a statement does not necessarily render the inference reasonable under the circumstances.” Jacobus, 51 N.Y.S.3d at 336.
The artists’ seven-track rap battle was a “war of words” that was the subject of substantial media scrutiny and online discourse. Although the accusation that Plaintiff is a pedophile is certainly a serious one, the broader context of a heated rap battle, with incendiary language and offensive accusations hurled by both participants, would not incline the reasonable listener to believe that “Not Like Us” imparts verifiable facts about Plaintiff
The judge actually does a fairly complete and detailed history of the war of words between Drake and Kendrick, even explaining the nature of the insults that pass back and forth between the two. Here’s just one paragraph of that section, but if you weren’t full up on the beef, now you can catch up:
Lamar fired back at Drake in “Euphoria,” which was released on April 30, 2024. Req. J. Not. at 3. In the track, Lamar claims, “I make music that electrify ‘em, you make music that pacify ‘em” and that he would “spare [Drake] this time, that’s random acts of kindness.” Req. J. Not., Ex. K. He accuses Drake of fabricating his claims: “Know you a master manipulator and habitual liar too/But don’t tell no lie about me and I won’t tell truths ‘bout you.” Id; see also Am. Compl., ¶¶ 14, 77. He insults Drake’s fashion sense, Req. J. Not., Ex. K (“I hate the way that you walk, the way that you talk, I hate the way that you dress”), further raps “I believe you don’t like women, it’s real competition, you might pop a** with ‘em,” and taunts Drake for being a coward with his responses, id. (“I hate the way that you sneak diss, if I catch flight, it’s gon’ be direct.”)
Of course, in any defamation case, there can be fights over whether or not statements are facts (which can be defamatory) or opinion (which can’t be defamatory). Drake’s legal team had tried to argue that the question of whether the statements in Not Like Us were fact or opinion was a question of fact for a jury. But that’s not how that works. It’s a question of law that judges decide in most cases:
Whether a challenged statement is fact or opinion is a legal question. Celle, 209 F.3d at 178. Plaintiff argues that it is inappropriate for the Court to determine, at the pleading stage, whether a reasonable listener would perceive the Recording as fact or opinion. Opp’n Br. at 13-14; Hr’g Tr. at 24:11-26:8. Yet, because this is a question of law, New York courts routinely resolve this question at the motion to dismiss stage. See, e.g., Brian v. Richardson, 87 N.Y.2d 46, 52 (1995) (holding, on a motion to dismiss, that challenged statement constitutes opinion); Dfinity Found. v. New York Times Co., 702 F. Supp. 3d 167, 174 (S.D.N.Y. 2023), aff’d, No. 23-7838- cv, 2024 WL 3565762 (2d Cir. July 29, 2024) (“Whether a statement is a “fact [or] opinion is ‘a question of law for the courts, to be decided based on what the average person hearing or reading the communication would take it to mean’ and is appropriately raised at the motion to dismiss stage.”); Greenberg v. Spitzer, 62 N.Y.S.3d 372, 385-86 (2d Dep’t 2017) (holding that, because whether a statement is defamatory “presents a legal issue to be resolved by the court,” defamation actions are particularly suitable for resolution on a motion to dismiss). “There is particular value in resolving defamation claims at the pleading stage, so as not to protract litigation through discovery and trial and thereby chill the exercise of constitutionally protected freedoms.” Dfinity Found., 702 F. Supp. 3d at 173 (cleaned up); accord Biro, 963 F. Supp. 2d at 279.
Also, in defamation cases, the context of the speech always matters quite a bit. And here, the context is a rap battle. The judge points out how silly it is to go to court just because you got dissed too hard:
This is precisely the type of context in which an audience may anticipate the use of “epithets, fiery rhetoric or hyperbole” rather than factual assertions. A rap diss track would not create more of an expectation in the average listener that the lyrics state sober facts instead of opinion than the statements at issue in those cases.
For example, in “Euphoria” Lamar calls Drake a “master manipulator and habitual liar” and “a scam artist.” Req. J. Not., Ex. K. Drake responds in “Family Matters” by heavily implying that Lamar is a domestic abuser. See id., Ex. M. He also raps that he “heard” that one of Lamar’s sons may not be biologically his. Id. (“Why you never hold your son and tell him, ‘Say cheese’?/We could’ve left the kids out of this, don’t blame me/. . . I heard that one of ‘em little kids might be Dave Free”).
In “Meet the Grahams,” Lamar takes issue with Drake involving his family members in their feud. Req. J. Not., Ex. N (“Dear Aubrey/I know you probably thinkin’ I wanted to crash your party/But truthfully, I don’t have a hatin’ bone in my body/This supposed to be a good exhibition within the game/But you f***ed up the moment you called out my family’s name/Why you had to stoop so low to discredit some decent people?”). In that same track, Lamar alleges that Drake uses the weight loss drug Ozempic. Id. (“Don’t cut them corners like your daddy did, f*** what Ozempic did/Don’t pay to play with them Brazilians, get a gym membership.”). Lamar also insinuates that Drake knowingly hires sexual offenders. See id. (“Grew facial hair because he understood bein’ a beard just fit him better/He got sex offenders on ho-VO that he keep on a monthly allowance.”).
While Drake argued that the judge should ignore the other songs in the battle, the judge knows that’s not how any of this works:
Plaintiff argues that the Court should ignore the songs that came before and assess “Not Like Us” as a “singular entity.” Hr’g Tr. at 39:14-15; see also Opp’n Br. at 15-17. Plaintiff argues that the average listener is not someone who is familiar with every track released as part of the rap battle before listening to the Recording. Hr’g Tr. at 32:17-33:2; 35:9-19. Because the Recording has achieved a level of “cultural ubiquity” far beyond the other seven songs, Plaintiff contends that Court should not consider those other tracks in assessing how the average listener of the Recording would perceive the allegations regarding Drake. Hr’g Tr. at 36:10- 19; id. at 39:11-17; see also Opp’n Br. at 15.
There are a number of flaws with this argument. “Not Like Us” cannot be viewed in isolation but must be placed in its appropriate factual context. Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 254 (1991) (“[S]tatements must first be viewed in their context in order for courts to determine whether a reasonable person would view them as expressing or implying any facts.”). Here, that factual context is the insults and trash talking that took place via these diss tracks in the days and weeks leading up to the publication of “Not Like Us.” The songs released during this rap battle are in dialogue with one another. They reference prior songs and then respond to insults and accusations made by the rival artist. See, e.g., Am. Compl., ¶ 63. The songs thus must be read together to fully assess how the general audience would perceive the statements in the Recording. See, e.g., Celle, 209 F.3d at 187 (holding that two newspaper articles had to be read together to understand full context).
Also, the judge points out that part of the reason the song was so famous in the first place was because of the wider rap battle:
Additionally, it was not just the Recording which gained a cultural ubiquity, but the rap battle itself. In deciding this motion to dismiss, the Court need not blind itself to the public attention garnered by this particular rap battle. The Court takes judicial notice of the extensive mainstream media reporting that surrounded the release of “Not Like Us” and the associated feud between Drake and Lamar.
Then there’s the incoherence of Drake claiming that UMG was liable (remember, Kendrick was not a defendant here) because it kept “republishing” the song as it got more and more popular. But, as the judge notes, the later popularity of the song should have no impact on whether or not the song is defamatory (and it’s not):
Plaintiff counters that, even if the Recording was protected opinion at the time of its initial publication, UMG’s republication of “Not Like Us” in the months following, after it achieved unprecedented levels of commercial success, exposes it to liability. Hr’g Tr. at 37:20-38:17. This argument is logically incoherent. If the Recording was nonactionable opinion at the time it was initially produced, then its republication would not expose UMG to liability. Republication cannot transform Lamar’s statement of opinion into UMG’s statement of fact
There were other arguments Drake made in there as well, but they all fared about as well as Drake did in his rap battle with Kendrick.
The end result is that the case is dismissed. And, I gotta say, when you lose a rap battle so hard that your lawsuit over it is dismissed with a judge praising the catchiness of the song that went viral… that seems like you’ve lost that rap battle harder than anyone has ever lost a rap battle.
Right up front, I want to state that this is a very personal post. While it obviously draws from my many years of writing for Techdirt, I want to make it perfectly clear that I am expressing my own opinions about everything discussed below.
I’m not immune to reading the comments. In fact, I actually enjoy reading them here. We have a great collection of daily readers. Even the daily critics manage to raise a good point now and then.
But I do wonder why we still see people asking why we don’t cover more “tech” issues or (often disingenuously) claim they came to this site to read about “tech,” even though our coverage has expanded to cover lots of ancillary (and important!) subject matter. (The commenters who complain about this site being “too political,” however, are only arguing in bad faith, willfully ignoring the years of criticism directed towards Barack Obama, etc.)
As for myself, this is how that breaks down. I was plucked from the comment threads to contribute to this site, an anomaly for which I will be forever grateful. On top of that, Mike Masnick allowed me to branch out to subject matter not normally covered here, ranging from police accountability to what now appears to be my primary focus: the Trump administration’s war on migrants.
Even given my purview, I’ve asked myself the same question. I frequently come across court decisions handling issues I would have put front and center. For instance, more courts are ruling that the most frequent enabler of warrantless searches (“odor of marijuana“) is no longer an acceptable excuse in states where marijuana possession is legal (which is most of them).
It’s an important issue and it serves the greater purpose of limiting rights abuses by law enforcement. So, why am I not covering more of these?
The answer — at least subjectively — is a bit harrowing. It’s one thing to cover incremental changes in Fourth Amendment law when everything is operating normally. This means things are getting better for citizens and decreases the potential for abuse by the government.
But in this administration, it seems a bit weird to draw attention to incremental wins for constitutional rights when it seems most of those rights won’t survive the GOP assault on the nation — at least not in any recognizable form.
We’ve already seen the First Amendment converted into a vehicle for punishment. For Trump and his supporters, the First Amendment only protects their speech. They’ll be the first to point out there’s no “hate speech” exception to the First Amendment while simultaneously asserting that anyone who takes the side of Palestine via protests or public statements is providing “material support for terrorism.”
The rest of our rights are considered equally discretionary by this administration. While it will never do anything to alter the contours of an amendment that’s always been considered expansive enough to cover even the broadest definitions made by people operating with the least amount of good faith (that would be the Second Amendment), it seems like it’s more than willing to destroy the rest of them, especially those that put anyone that’s not white or male on (more or less) equal footing with the white males they (mostly) are.
So, while the Second Amendment will continue to be proclaimed as the right that protects the rest of the rights (by people who only started saying this after Obama was elected), the rest of our rights are up for grabs. And while the Founding Fathers may have firmly stated these right were inalienable, the current administration only cares for originalism when it’s being used to strip rights from people they think should never have had access to them (Blacks, women, LGBTQ+ people, accused criminals, pretty much any non-white person, etc.).
Mike has almost always made a point to focus on the positive with his New Year’s posts. And I’m glad he does. No one wants to read the collective output of a bunch of bitter pessimists. But it’s hard to retain hope when everything appears to be sliding from “slightly fucked” to “irrevocably fucked” on a daily basis.
The people we hoped would right this ship — political leaders, legislators, the US press, etc. — have failed us. Some have done it because their heart was never in it. Some have done it because it’s easier than walking directly into this administration’s fire hose. And some have done it because they, too, have lost hope.
I think we can still turn this around. I don’t know how, but I do know better than to forfeit the game. I don’t harbor any illusions that my writing is changing minds or speaking truth to power. I mean, I hope it’s doing the former and convinced it’s doing the latter. But the more time I spend interacting with people who think everything will be fine (or worse, think this administration is actually making America great) leads me to believe this nation is filled with people who are incapable of actually considering a competing point of view.
As for the latter, speaking truth to power only seems to work when someone in power is willing to honestly engage with criticism. The Democratic party has pretty much given up on doing anything that matters. Those who are still putting their hearts into this tend to be ridiculed by Trump supporters and Democratic voters alike as embarrassing aberrations. And the Republican party treats even mild criticism as an attack on America itself, responding with threats or belittlement but never with anything that might indicate the GOP contains anyone with any humanity.
The state of the nation is in flux. What we’ll look like on the other side of this — if there’s even an “other side” to reach — is unknown. But the way it looks now is that we’re engaged in the fight of our lives if we want to see anything resembling the America we’ve lived in and loved (albeit conditionally) for the past 250 years. It will take an organized effort to survive an administration that wants to convert the Land of the Free into a White Christian Nationalist paradise that will also welcome Jews who engage in genocide, but not the rest of them (George Soros, space lasers, etc.).
And while this top-down oppression generally won’t have the day-to-day effect on the everyday life of average Americans the way a court decision preventing “odor of marijuana” searches will, I can’t seem to find the latter compelling enough in the grand scheme of things to bring it to anyone’s attention.
It’s exhausting keeping up with this administration. But it’s worth doing. No one doing this sort of thing to the United States should be ignored just because their acts are normally part of this site’s subject matter. There’s a nation being destroyed in front of our eyes. The least I can do is make sure you see it.
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Last week we covered how Trump’s immigration theater was pulling federal agents off child sex crimes, drug interdiction, and terrorism investigations to chase landscapers and line cooks instead. Turns out that was just the tip of the iceberg. Now we’re learning the administration is also pulling hundreds of cybersecurity professionals away from defending America’s critical infrastructure so they can help process deportation paperwork.
Employees across various units of the Department of Homeland Security have been marked for reassignments to agencies focused on Trump-era border security and deportation work, and could be dismissed if they don’t comply, according to multiple people familiar with the matter and a copy of one notice viewed by Nextgov/FCW.
In recent weeks, hundreds of DHS employees have been directed to transfer to agencies like Immigration and Customs Enforcement, the Federal Protective Service and Customs and Border Protection — the main units overseeing much of President Donald Trump’s immigration and deportation efforts.
The people being reassigned include staff from the Cybersecurity and Infrastructure Security Agency (CISA), the very federal agency, created during the first Trump administration, responsible for coordinating cybersecurity across federal agencies and helping protect America’s critical infrastructure from cyberattacks. This includes issuing emergency directives when vulnerabilities are discovered, coordinating incident response when breaches occur, and working with private sector operators of power grids, water systems, and financial networks—you know, the stuff that might actually matter for “national security.”
Compulsory reassignments have gone in recent weeks to workers within the Cybersecurity and Infrastructure Security Agency, or CISA, who had focused on issuing alerts about threats against US agencies and critical infrastructure, current and former employees said. They described the orders on condition of anonymity over fears of retaliation.
Affected CISA staffers have been shuffled to agencies including Immigration and Customs Enforcement, which received a $150 billion infusion to carry out Trump’s immigration crackdown, the employees said. CISA workers have been moved to Customs and Border Protection and the Federal Protective Service, a domestic police force working with ICE and CBP on deportations.
Changes have hit particularly hard in CISA’s Capacity Building team, which writes emergency directives and oversees cybersecurity for the government’s highest value assets, the employees said. Reassignments have largely targeted senior CISA staffers, who are forbidden from joining unions because they work on national security issues, according to one person.
So we’re specifically targeting the people whose job it is to improve the cybersecurity of federal agencies and coordinate with international partners on cybersecurity threats.
Once again, the Trump admin seems to time these things to highlight how messed up their priorities truly are. We’re still dealing with the fallout from the Salt Typhoon hack and we’re only just starting to get a sense of just how bad the recent Salesforce hack really is.
But sure, let’s pull the people who deal with those threats off their jobs so they can help arrest landscapers.
What could possibly go wrong?
This fits perfectly with the broader pattern we’ve already documented, where Trump’s immigration obsession is gutting federal law enforcement’s ability to tackle actual crimes that matter. As we covered recently, federal agents are being pulled off child trafficking cases, drug interdiction, and terrorism investigations so they can chase non-violent immigrants instead.
But there’s an extra layer of stupidity here, because CISA has become a target of right-wing conspiracy theories. Republicans have spent years claiming that CISA is actually a “censorship” agency rather than a cybersecurity one, because the agency had the audacity to set up a system to help local election officials alert social media companies of election misinformation around the time, place, and manner of voting.
Senator Rand Paul has been particularly vocal about wanting to eliminate CISA entirely. As Politico reported last year:
“I’d like to eliminate it,” Paul told POLITICO Thursday. “The First Amendment is pretty important, that’s why we listed it as the First Amendment, and I would have liked to, at the very least, eliminate their ability to censor content online.”
Of course, CISA doesn’t actually censor content online. That’s not what the agency does. But when you’re dealing with people who think everything is a grand conspiracy, facts tend to be inconvenient.
The reality is that CISA was created in 2018 under Trump himself, and its actual mission is defending critical infrastructure from cyberattacks. You know, the kind of attacks that could actually shut down hospitals, banks, and power plants. The kind of attacks that represent genuine national security threats, as opposed to someone trying to mow your lawn without the right paperwork.
But with the MAGA GOP’s bizarre obsession with CISA, reassigning actual cybersecurity experts to bogus immigration jobs is hardly surprising. The weird obsession with CISA is causing all sorts of stupid decisions, including Rand Paul making sure a different “CISA” (the Cybersecurity Information Sharing Act of 2015) basically expired, in part because Paul seemed unwilling to recognize the two CISAs are different things:
Senate aides echoed concerns that cybersecurity industry stakeholders have also shared with Axios: That Paul is conflating CISA the agency with the information-sharing program, which shares the same acronym.
When you’re more concerned with feeding red meat to your base than actually protecting the country, these distinctions don’t matter much.
The human cost of this bureaucratic madness is becoming clear. As Nextgov reports:
The shifts could slow ongoing responses to cyber threats that have targeted the federal enterprise.
CISA personnel are addressing aCisco vulnerability— recently exploited by a hacking group potentially linked to China — that predominantly affects government networks. And over the summer, a hacker stole employee data from both the Federal Emergency Management Agency and CBP, Nextgov/FCWfirst reported.
So while CISA personnel are being reassigned to help with deportations, actual foreign adversaries are actively exploiting vulnerabilities in government networks. But I’m sure the Chinese hackers will politely wait until we’re done processing paperwork on restaurant workers.
The DHS response to this criticism is predictably tone-deaf and filled with culture war nonsense, rather than actually addressing the underlying issues:
“DHS routinely aligns personnel to meet mission priorities while ensuring continuity across all core mission areas,” DHS Assistant Secretary Tricia McLaughlin said in a statement. “Any notion that DHS is unprepared to handle threats to our nation because of these realignments is ludicrous, especially given the abject failure at the hands of CISA in the last administration.”
“CISA was adrift and was focused on censorship, branding, and electioneering instead of defending America’s critical infrastructure. Today, CISA is focused squarely on executing its statutory mission: serving as the national coordinator for securing and protecting the nation’s critical infrastructure and is delivering timely, actionable cyber threat intelligence, supporting federal, state and local partners, and defending against both nation-state and criminal cyber threats,” she added.
Ah yes, the “abject failure” of… defending critical infrastructure from cyberattacks. Because apparently the real threat to America isn’t foreign hackers potentially shutting down our power grid, it’s people trying to work in agriculture and construction.
This is what happens when you let people who fundamentally don’t understand how anything works make decisions about complex systems. They see an agency that viewed foreign influence attacks on elections and assume it must be part of some grand conspiracy to silence red-blooded Americans on social media.
The end result is that we’re making America demonstrably less safe in the name of political theater. When you pull cybersecurity experts off incident response and vulnerability management so they can help with deportation paperwork, you’re not making the country more secure. You’re just making it easier for foreign adversaries to exploit the next zero-day vulnerability, breach more federal systems, or potentially disrupt critical infrastructure.
But hey, at least the people cheering this on will have someone to blame when the lights go out.
California this week signed a new law that tries to prevent your landlord and broadband ISP from teaming up and preventing you from using broadband competitors.
Starting January 1, AB1414 requires that landlords “allow the tenant to opt out of paying for any subscription from a third-party ISP, such as through a bulk-billing arrangement, to provide service for wired Internet, cellular, or satellite service that is offered in connection with the tenancy.”
The law doesn’t ban “bulk billing,” which usually involves an ISP and a development or apartment landlord striking a deal locking you into one provider. Such models sometimes can be useful in situations where mandated usage is the only way to recoup investment into hard-to-reach areas by smaller providers. But the idea is broadly abused by monopolies trying to elbow out competitors.
California’s new law simply makes it so consumers can opt out of such deals, without retaliation from their landlords. If landlords still try to force tenants to pay for broadband they don’t want and don’t use, the tenant can subtract the cost from their monthly rent.
It needs to be clear that California’s effort is basically the bare minimum to rein in such anti-competitive relationships. So, of course, big ISPs like Comcast and AT&T are having a big hissy fit about it:
“The California Broadband & Video Association, which represents cable companies, called it “an anti-affordability bill masked as consumer protection.”
U.S. broadband monopolies should consider themselves lucky that U.S. regulators have traditionally been too corrupt to truly tackle what generally has been a much bigger problem.
For decades, U.S. broadband providers have struck cozy deals with landlords effectively elbowing out competitors and allowing them to create building-by-building broadband monopolies (in some cases even banning the advertising of a competing service inside a development or apartment). That stifled competition results in higher costs, slow speeds, and worse overall service.
And while the FCC passed rules in 2007 trying to ban the practice, they were never seriously enforced and so full of loopholes as to be effectively useless.
Susan Crawford wrote pretty much the definitive story on this at Wired in 2016, noting that the original rules were so terrible, ISPs and landlords could easily tap dance around them by simply calling what they were doing… something else:
“…The Commission has been completely out-maneuvered by the incumbents. Sure, a landlord can’t enter into an exclusive agreement granting just one ISP the right to provide Internet access service to an MDU, but a landlord can refuse to sign agreements with anyone other than Big Company X, in exchange for payments labeled in any one of a zillion ways. Exclusivity by any other name still feels just as abusive.”
Every so often the FCC tries to update the rules, but because the agency is either under the thumb of Republicans (who actively support predatory monopolization) or Democrats (who nibble around the edges with performative solutions that fail to attack or often even acknowledge monopoly power), things never really get better.
After being nagged about this for fifteen years (!), the Biden FCC finally updated the rules again in 2022. But again, the updated language still didn’t actually fix the problem, in part because the rule revisions only applied to cable and phone companies, not any of the numerous broadband-only fiber, fixed-wireless, or Wi-Fi ISPs that cut exclusivity deals directly with landlords to avoid having to compete.
Now that the Trump administration has basically lobotomized the FCC’s consumer protection authority, there’s zero chance the federal government will be enforcing any of this anytime soon. That leaves things to a small smattering of states that sporadically care about consumer protection.
You’ll find that this is going to be a common theme as a patchwork of functioning states try to step in and fill the void created by a federal government that’s actively hostile to consumer protection and corporate oversight. But in most states, companies like AT&T and Comcast literally and genuinely all-but run the state legislature. Even in “progressive” California it’s an uphill climb to get the bare minimum passed.
