Monthly Archives: March 2014

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Left Hand Brewery Attempts To Trademark ‘Nitro’ For Its Beer Line

Here we go again. Beer-makers and trademark seem to be becoming something of an item these days. Previously, we’ve noted trademarks and battles over last names, common sports phrases, and (sigh) whether a six looks too much like a nine. Seriously. These applications and battles tend to revolve around some common term or name being used in association with a beer brand. Where trademark was chiefly developed as a resource for consumers to keep from being duped, it has evolved into a language-grab for companies looking to knee-cap the competition.

Such is the latest case, in which Left Hand Brewing out of Colorado wants to trademark the term “nitro” for their beer brands. Unfortunately, this presents a problem.

Colorado’s Left Hand Brewing is attempting to trademark the term “nitro”—as in, nitrogen. The Longmont company is thus far the only US brewer to bottle with nitrogen as opposed to carbon dioxide, something it says it achieved at a steep cost: years of effort, and hundreds of thousands of dollars. “We have a bottle that is pretty unique,” president Eric Wallace tells the Denver Post. But here’s what’s not unique: Plenty of breweries pour nitro beer on draft, and others have announced or implied plans for nitro beer in bottles or cans. If the trademark is granted, Left Hand could send cease-and-desist letters to those breweries, a lawyer explains.

I’m not sure how accurate that last bit is. Instead, C&D letters would go out to other breweries using the label of nitro to denote a nitrogen infused beer, not breweries that simply partake in the process. Still, we see the problem of this evolution in trademark usage. What is likely to become an industry standard process, and one that is already done in other parts of the industry, is going to be locked up in terms of branding. Denoting a nitrogen-infused bottle isn’t terribly different from denoting a beer as ‘lite/light’, yet other breweries would be deprived the ability to do inform their customers of what they’re drinking if this mark goes through. That wasn’t the purpose of the law at the outset.

Other publications, and companies, appear to agree.

The Week sees nitro as a “descriptor”—”imagine if, say, Budweiser tried to trademark ‘refreshing,'” it quips. But Wallace says the trademark seeks to protect the name of its “Nitro Series” of beers, “not the style—not nitrogenated beers.” But a rep for Anheuser-Busch—which has until June to decide if it will oppose the application—notes, “As a brewer, we have produced our own nitrogenated beers and, like many other brewers, large and small, we need to maintain the ability to identify them to consumers.”

We’ll have to see if the trademark is granted, but it sure shouldn’t be if the intent of trademark law is followed.

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DailyDirt: This Tastes Funny… Here Try It

There’s no accounting for taste — unless of course you have to quantify it with sensory panels and professional tasters. It’s not quite an exact science which is sorta why you can never get 4 out of 5 dentists to agree on anything, but researchers are… Continue reading

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Pissed Consumer Slaps Back At Company That Filed A SLAPP Suit

Opinion Corporation runs the site PissedConsumer.com — which, if you’re not already familiar with it, does pretty much what you’d expect: allows angry consumers to call out companies that have done them wrong. One of those companies, apparently, is Ne… Continue reading

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Team Prenda Slammed Again, Found In Contempt; Judge Blasts Their Attempts To Plead Poverty

It’s been a little while since we had a Team Prenda update, but suffice it to say, judges still don’t seem to be buying their brand of bullshit, even as they get more and more desperate. The latest is the followup in the Lightspeed case in which Team Prenda made the incredibly poorly thought-out move of dragging Comcast and AT&T into the proceedings. Not only did Judge Patrick Murphy find that Team Prenda flat out lied to the court, he hit them with an order to pay $261,025.11 in attorneys’ fees for wasting everyone’s time.

Team Prenda has been avoiding paying that ever since. There was an amusing hearing back in February in which they weakly sought to justify the non-payment, first quibbling with Judge David Herndon that the original order to pay up was a “money judgment” rather than an order, in the belief that this would give them more flexibility in paying. That ridiculous argument was more or less dismissed out of hand by Judge Herndon quickly. Following that, John Steele and Paul Hansmeier specifically tried to plead poverty, arguing that they simply couldn’t pay the amount. Judge Herndon said, effectively, okay: prove it. And while they filed documents that attempt to prove that, Judge Herndon is not buying it at all. In a ruling earlier this week finding Paul Duffy, John Steele and Paul Hansmeier in contempt, Herndon noted that even in filing financial statements, it appeared they were trying to deceive the court:

In the case where there has been no attempt to comply with the Court’’s order, plaintiff’’s counsel must show a “”complete inability to pay.”” … Plaintiff’’s counsel, “”stated differently, . . . [has] the burden of establishing clearly, plainly, and unmistakably that compliance is impossible.” ….

The Court finds that plaintiff’’s counsel has not met its burden. They submitted incomplete, and to say the least suspicious, statements of financial condition. Attached to each statement was a letter from their certified public accountant (““CPA””). In these letters, the CPA indicates a departure from generally accepted accounting principles. He further notes that plaintiff’’s counsel elected to omit substantially all of the disclosures required by generally accepted accounting principles. The Court finds these statements insufficient to establish plaintiff’’s counsel’’s inability to pay.

Given all that, he notes that Team Prenda “significantly violated an unambiguous order of the Court” and has tacked on an additional 10% to the original order, giving them until March 31st to pay up… or the amount will keep going up at $500 per attorney per day (so $1,500 more per day). After another 30 days, the amount will increase to $1,000 per attorney per day. Hansmeier is already begging for a reconsideration, but given how many times these guys have been called out for attempted deceptions in court, it seems unlikely he’s going to have much luck.

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Kudos: Microsoft Changes Policy, Promises Not To Inspect Customers’ Content

Last week, we wrote about Microsoft’s ridiculous decision to search through a reporter’s Hotmail email account after realizing that reporter had an unauthorized copy of Windows 8. The whole thing seemed like a huge overreaction by the company — in trying to track down an almost meaningless leak that was unlikely to have any real impact on anything, the company effectively alerted the world that you had no real privacy in your email. The move was even more ridiculous since Microsoft has more or less bet its email farm on a marketing campaign about how it respects your privacy more than others. Microsoft’s first response to this was exceptionally weak. While it announced a “change” in policies, it was still the same basic policy, that effectively (and misleadingly) claimed that it could and would continue to search anyone’s email if the company had evidence that you might reveal a leaker.

Apparently — and somewhat surprisingly — it appears that Microsoft and its legal team took the criticism seriously. Microsoft’s General Counsel Brad Smith has now put out a new blog post announcing a complete change in policy, promising that it will not unilaterally look through any Microsoft user’s content in search of “stolen” intellectual property:

Effective immediately, if we receive information indicating that someone is using our services to traffic in stolen intellectual or physical property from Microsoft, we will not inspect a customer’s private content ourselves. Instead, we will refer the matter to law enforcement if further action is required.

Furthermore, the company will officially change its terms of service to reflect that change in policy. On top of that, it is starting a (somewhat undefined) project with EFF and CDT to work on “best practices” concerning privacy. Smith’s apology is quite heartfelt, which is also rare from a big company:

It’s always uncomfortable to listen to criticism. But if one can step back a bit, it’s often thought-provoking and even helpful. That was definitely the case for us over the past week. Although our terms of service, like those of others in our industry, allowed us to access lawfully the account in this case, the circumstances raised legitimate questions about the privacy interests of our customers.

In part we have thought more about this in the context of other privacy issues that have been so topical during the past year. We’ve entered a “post-Snowden era” in which people rightly focus on the ways others use their personal information. As a company we’ve participated actively in the public discussions about the proper balance between the privacy rights of citizens and the powers of government. We’ve advocated that governments should rely on formal legal processes and the rule of law for surveillance activities.

While our own search was clearly within our legal rights, it seems apparent that we should apply a similar principle and rely on formal legal processes for our own investigations involving people who we suspect are stealing from us. Therefore, rather than inspect the private content of customers ourselves in these instances, we should turn to law enforcement and their legal procedures.

Personally, I wish the announcement and policy change went a bit further — beyond just “intellectual or physical property,” but making it clear across the board that, absent a reasonable warrant signed by a judge, Microsoft will not allow anyone to access anyone’s content. But, perhaps we’ll get there some day. In the meantime, Microsoft does deserve some kudos for changing positions. Most large companies would try to just let this issue fade away rather than proactively address it.

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Piracy Continues Killing The Movie Business To New Record Highs

So, earlier this week, the MPAA came out with its annual report that shows that once again, its box office take hit new record highs. This same thing happens basically every year, so we almost didn’t cover it at all this year. It’s kind of old news. Bu… Continue reading

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UK Finally ‘Legalizes’ CD & DVD Ripping… But You’re Still Not Allowed To Circumvent DRM

As TorrentFreak is noting, the UK is finally modernizing basic user rights concerning copyright (what they call “fair dealing”) to officially make it “legal” to make personal copies of legally acquired copies of digital content. In short, due to restri… Continue reading

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The TSA’s Mental ‘Coin Flip’ That May Keep You From Traveling

I am (TSA Behavioral Detection Officer) Jack’s self-delusion.

Like the rest of us, airport security screeners like to think they can read body language. TheTransportation Security Administration has spent some $1 billion training thousands of “behavior detection officers” to look for facial expressions and other nonverbal clues that would identify terrorists.

But critics say there’s no evidence that these efforts have stopped a single terrorist or accomplished much beyond inconveniencing tens of thousands of passengers a year. The T.S.A. seems to have fallen for a classic form of self-deception: the belief that you can read liars’ minds by watching their bodies.

$1 billion in taxpayer funds spent, and nothing’s safer. The only “positive” seems to be that TSA’s officials have improved their own morale.

The T.S.A.’s administrator, John S. Pistole, defended its behavior-detection program last year by saying it identified “high-risk passengers at a significantly higher rate than random screening.”

Pistole likely believes this to be true because the human brain is will betray its owner to make it happy. People generally tend to believe they’re smarter than other people and that their skills are more finely honed — whether or not the skills they claim have in fact been honed or are even possible.

The GAO (Government Accountability Office) came to an entirely different conclusion when it applied science, rather than belief, to the TSA’s expensive Behavioral Detection program.

Peer-reviewed, published research does not support whether the use of nonverbal behavioral indicators by human observers can accurately identify deception. Our review of meta-analyses and other studies related to detecting deception conducted over the past 60 years, and interviews with experts in the field, question the use of behavior observation techniques, that is, human observation unaided by technology, as a means for reliably detecting deception. The meta-analyses, or reviews that synthesize the findings of other studies, we reviewed collectively included research from more than 400 separate studies on detecting deception, and found that the ability of human observers to accurately identify deceptive behavior based on behavioral cues or indicators is the same as or slightly better than chance (54 percent).

$1 billion thrown at something as useful as a coinflip to apprehending terroists. Or rather, would be as useful as a coin flip, if it only came up heads once in one hundred coin tosses.

It noted that fewer than 1 percent of the more than 30,000 passengers a year who are identified as suspicious end up being arrested, and that the offenses (like carrying drugs or undeclared currency) have not been linked to terrorist plots.

Pistole still believes in the program, though, and there won’t be much that can convince him otherwise. For one thing, there’s a whole lot of money riding on it. For another, there’s the natural biases of the human brain. Of course, it’s protected by the DHS, the same government entity that feels so confident in its employees’ imaginary “abilities” that it argued CBP agents’ “hunches” should supersede the “reasonable suspicion” demands of the Fourth Amendment.

And, as if the human’s innate ability to convince itself it possesses skills it can’t scientifically have isn’t bad enough, the millions of dollars being poured into behavioral detection training is only making things worse. (While there were numerous sources for this information, I feel it’s most enjoyably explained by Cracked.)

[P]olice officers have to go through rigorous training to make sure they pick up on the common tells people exhibit when they lie, but all of that training is actually worse for them than no training at all. The problem is that the training focuses on signs of nervousness, like twitching and discomfort, when twitching and discomfort are also known side effects of an innocent person sitting in an interrogation room. So as you can imagine, there are a lot of false positives. There are also countless other factors that determine how much someone squirms — like their cultural background, what kind of lie they’re telling, and whether the suspect is generally a noddy, hand-and-feet-movey kind of person (how many of you reading this are fidgeting at a desk right now, tapping your foot or bouncing your knee?)

A grizzled old police officer might say, “Yeah, that training is BS! I can spot a lie thanks to my 20 years on the streets.”

Nope, sorry. They did a study on officers who’d been on the force for anywhere between three and 26 years and found that, incredibly, the longer someone’s been an officer, the worse he or she is at telling when someone’s lying.

When you base an entire program on a delusion that only gets worse with experience and training, you’ve got a nightmare on your hands. The TSA detained 30,000 people, found no terrorists, nailed a few people on ancillary charges, and when asked about it, claimed it was an amazing success.

There’s no magic ability to detect liars and the cursory conversations deployed by TSA agents to sniff out would-be terrorists aren’t nearly enough to qualify as “behavioral detection.” Some things can be learned by observing people, but there’s always going to be a ton of false positives to sift through.

Not only that, but no one wants to participate in faux-small talk with a person who wields an inordinate amount of power. Their recalcitrance can easily be “hunched” into “reasonable suspicion” by a BDO. Nearly everyone caught in these little “behavioral detection” chats is going to be nervous, because they know one simple misplaced word or action is the difference between them boarding their flight unmolested or potentially spending a few hours attempting to prove a negative to a bunch of TSA agents suffering from the delusion that they can determine suspicious behavior “just by looking.”

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US Judge: Baidu’s Decision To Block Certain Sites Is Protected By The First Amendment

We were bothered a few years ago to see the usually insightful Tim Wu suddenly arguing that search engine results had no First Amendment protections. The idea seemed ludicrous. Search engine results are opinions from that search engine about what is the most appropriate response to a query. It is clearly a form of speech and thus should be protected. The specific question, however, has barely been tested in court. However, a new ruling makes it quite clear that search engine results are protected by the First Amendment. Of course, it’s in a case where this may feel somewhat ironic: some activists had sued Chinese search engine Baidu for refusing to show results pointing to their own pro-Chinese democracy writings. They argued that this violated New York’s “public accommodations law.”

And while it may seem funny to think that a website that is clearly trying to block access to certain content is standing up for the First Amendment, the ruling gets it exactly right, in noting that search engines have every right, under the First Amendment, to make editorial decisions about what to include and what not to include:

In short, Plaintiffs’ efforts to hold Baidu accountable in a court of law for its editorial judgments about what political ideas to promote cannot be squared with the First Amendment. There is no irony in holding that Baidu’s alleged decision to disfavor speech concerning democracy is itself protected by the democratic ideal of free speech. As the Supreme Court has explained, “[t]he First Amendment does not guarantee that . . . concepts virtually sacred to our Nation as a whole . . . will go unquestioned in the marketplace of ideas.” Texas v. Johnson, 491 U.S. 397, 418 (1989). For that reason, the First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects Plaintiffs’ rights to advocate for democracy. Indeed, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Id. at 414 (citing cases). Thus, the Court’s decision — that Baidu’s choice not to feature “pro-democracy political speech” is protected by the First Amendment — is itself “a reaffirmation of the principles of freedom and inclusiveness that [democracy] best reflects, and of the conviction that our toleration of criticism . . . is a sign and source of our strength.”

My first thought on hearing about the case was that there clearly should be no issue here at all, since Baidu is a private corporation, not a government actor. But the real issue is over NY’s public accommodations law — and whether or not that compels Baidu to “speak” in a certain way by changing its algorithms and results. It’s that point that the judge is making. The public accommodations law cannot be used to compel speech in this manner, which leads him to properly note that Baidu’s choices are a form of protected expression.

The judge highlights a number of similarly applicable cases, first comparing Baidu to a newspaper, in which editorial decisions are considered protected speech. Then it compares it more directly to a different, though in some ways similar, case — Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, in which the courts said that private parade organizers can’t be forced to include groups they disagree with:

The question in Hurley was whether Massachusetts could “require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey.” Id. at 559. The Court held that allowing the state to do so would “violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573; see also, e.g., Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) (plurality opinion) (relying on Tornillo to invalidate a rule requiring a privately owned utility to include with its bills an editorial newsletter published by a consumer group critical of the utility’s ratemaking practices). “‘Since all speech inherently involves choices of what to say and what to leave unsaid,’” the Court explained, “one important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’” Hurley, 515 U.S. at 573 (quoting Pac. Gas & Elec. Co., 475 U.S. at 11, 16 (plurality opinion)). Notably, the Court found that principle applied even though the parade organizers did not themselves create the floats and other displays that formed the parade and were “rather lenient in admitting participants.” Id. at 569. “[A] private speaker,” the Court stated, “does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech. Nor . . . does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication.”

In both of these cases, I would personally disagree with the choices made. I think it’s awful that a Chinese search engine regularly attempts to block access to pro-democracy writings and I equally think it’s ridiculous that various St. Patrick’s Day parades actively seek to block gay, lesbian and bisexual groups from participating. Yet, in both cases, as private organizations, they have the right to decide what to include and not include. Just as everyone who finds those decisions despicable has the right to speak out against them.

This ruling may feel ironic in that it appears to further the cause of Chinese government censorship in the name of the First Amendment, but as Judge Jesse Furman notes, there’s really nothing ironic at all in protecting the right of private parties to make their own editorial decisions, no matter how offensive they might seem.

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Spring-cleaning Unused CSS

Addy Osmani intros a Grunt task for removing unused CSS from your stylesheet before serving it.

While this is certainly a worthy goal, I look at the quotes from people who reduced their stylesheets by 3/4 or more and I’m like holy crap what kinda shop are you running over there?! I know “test, don’t guess”, but I’d guess that pretty close to 0% of the styles I write are unused. I’m sure HTML changes over time make a orphaned …


Spring-cleaning Unused CSS is a post from CSS-Tricks

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