Pluralistic: 10 Feb 2021


Today's links



Crooked cops play music to kill livestreams (permalink)

Sennett Devermont is a police accountability activist whose streams police encounters to his Instagram followers. When he visited the Beverly Hills Police Department last Fri to obtain a form, BHPD Sergeant Billy Fair recognized him and began blasting music from of his phone.

https://www.instagram.com/p/CLCpHBQjX8r/

Fair was following the example of other BHPD officers who have made a habit of playing copyrighted music during encounters with the public, apparently to trigger automated copyright takedowns on the major social media platforms.

https://www.vice.com/en/article/bvxb94/is-this-beverly-hills-cop-playing-sublimes-santeria-to-avoid-being-livestreamed

As Dexter Thomas writes for Vice, this form of copyfraud has a failsafe: if the filter doesn't block the livestream, the archived footage might be easily removed through copyright complaints.

Instagram's copyright policy suggests that videos with incidental music are permitted, but the company's filters are incapable of distinguishing "incidental" and "non-incidental" use, while its appeals process is a long-running production of Kafka's Trial.

https://pluralistic.net/2020/05/17/cheap-truthers/#robot-sez-no

Moreover, the platforms use a "copystrike" system, which means that cops who successfully deploy this tactic can chip away at activists' presence on the system – three strikes and their accounts are permanently removed.

Thomas: "…[P]laying copyrighted music as a deterrent to the First Amendment-guaranteed right to openly film police is, if not BHPD official protocol, at least a technique that has been deployed by more than one officer."

Back in 2019, anti-racist activists experimented with playing copyrighted music at Nazi rallies to make them unpostable on social media. At the time, I warned that this would end badly.

https://memex.craphound.com/2019/07/23/clever-hack-that-will-end-badly-playing-copyrighted-music-during-nazis-rallies-so-they-cant-be-posted-to-youtube/

Exactly a year later, BLM protest videos started disappearing from the internet thanks to copyfraud and overactive copyright filters.

https://pluralistic.net/2020/07/23/circuit-split/#dolphins-in-tuna-nets

Copyright filters are a terrible idea, not just because they have all but eliminated the ability of musicians to perform classical music online:

https://pluralistic.net/2020/05/22/crisis-for-thee-not-me/#filternet

Nor merely because they allow giant companies to steal from independent video creators:

https://pluralistic.net/2020/12/12/fairy-use-tale/#content-id

They're a bad idea because they create a backdoor system for censorship of any and all material – because they fray the fabric of our online speech forums, and give bullies a devastating weapon to use against those who document their crimes.



Duke is academia's meanest trademark bully (permalink)

Two of the most astute IP scholars I know also happen to be two of the best legal writers I know, and also happen to work at one of the worst IP abusers in the country: Jennifer Jenkins and James Boyle, of Duke University, the nation's leading academic trademark abuser.

Duke has a universal reputation for being a serious trademark abuser, but Jenkins and Boyle wanted to empirically investigate that reputation. The result is "Mark of the Devil: The University as Brand Bully," forthcoming in Fordham IPLJ.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3780381

To do empirical work, you have to find stuff to count. The problem is that questions like "who is the biggest bully?" are stubbornly qualitative, and quantizing Duke's conduct risks incinerating the most important elements in the quest for some kind of quantitative residue.

But the authors hit on a very good quantitative/qualitative methodology: they would count trademark oppositions, which are legal filings sent after a trademark has received preliminary approval. That way, they'd be counting oppositions to trademarks that had some merit.

Even better: trademark oppositions have to be accompanied by legal arguments explaining why the university thinks the trademark should be blocked, and that produces a qualitative account of how Duke thinks about its trademark.

Then Jenkins and Boyle used their considerable legal knowledge to characterize each opposition's argument on the basis of how plausible or stupid it was, quantizing the qualitative question of whether Duke's lawyers were fucking around.

Some background: universities have reinvented themselves as brand-factories and oriented their activities around slapping their logos on random shit and selling it. That's why Ohio State applied for a trademark on, I shit you not, the word "the."

Boise State asked for a trademark on all non-green football fields. U Texas wants the trademark over making devil horns with your fingers ("I felt a great disturbance in the Force, as if millions of metalheads suddenly cried out in terror and were suddenly silenced").

The trademark and licensing business is a squalid affair. The (grossly overstated, rarely realized) risk of a mark lapsing into the public domain ("genericide") justifies endless bullying of people who say and do normal things that glance off your trademarks.

Trademark was established to protect buyers, by allowing the makers of well-known goods to punish rivals who sought to deceive their customers. Over the years, trademark has been distorted into just another grift, a way to make the rich, richer.

As the authors point out, citing Mark Lemley et al, there's no good trademark justification for allowing a university to snuff out "counterfeit" tees – the buyers of these items haven't been tricked into getting a bargain on a way to advertise their team allegiance.

But the expansion of trademark into an economic right for mark-makers (and away from a way of protecting the public from deceptive sellers), combined with the bogeyman of genericide add up to a perfect business for the greedy and unscrupulous. For bullies.

So, is Duke a bully?

Oh shit yes.

Let's look at some graphs. Here's how Duke stacks up against comparable US institutions in terms of how often it challenges a trademark.

They slice this data many ways but it always looks like this: Duke is a huge outlier.

But wait! Maybe those trademark cancellations are good, actually. So let's go to the quantized, hand-coded qualitative assessments of Duke's arguments.

They're garbage.

"85% of Duke’s oppositions were coded either clearly erroneous or far-fetched"

But wait! Maybe the authors are being mean to Duke. What's "erroneous or far-fetched?" Well, it seems that Duke challenges any trademark application containing "Duke," the letter "D," a devil, the world blue, or any word that sounds like "duke."

All of this is laid out with beautiful clarity in the paper, and the back third of the paper moves on to ask What It All Means – why is Duke such a godawful bully. The authors entertain several possibilities, like perverse incentives in trademark, etc.

But they don't draw conclusions. I have one, and it may be uncomfortable for my honorable and good lawyer friends, which is that law has a bullying problem. There are many fields where esoteric knowledge gives you the power to coerce others, but the law is especially bad.

Luckily, most of my experience of lawyers has been with people who fight for the underdog, but honestly, I think they're the exception. I had a very eye-opening experience about 15 years ago, when a friend asked me to come speak to some co-workers.

My friend worked at a giant company in a creative unit, and he asked me if I'd come speak to his group. It was close by home and I told him of course I'd do it. A day before I was meant to come by, he emailed apologetically to say that legal had sent him a contract for me.

Now, I wasn't charging this massive, profitable company a dime. It was a favor for a pal. But I looked at the contract and it was bonkers – like, I promised I'd never mention the name of the company in print, ever, without written permission.

I told my friend I couldn't sign that clause and he told me he understood, but the legal department wouldn't let me in the building unless I signed it. I canceled the talk. A couple months later, I met a lawyer from the company at a signing and I told him this story.

He grimaced and said he knew whose doing that was, another lawyer in the department who counted their successes by how badly they could humiliate the people who contracted with the company. He listed several of these, each more outrageous than the last.

This wasn't just a power-trip, it was sadism. And it's not limited to that lawyer or that company. I sent back two minor, small-dollar publishing contracts today that had abominable language in them – blanket indemnities, binding arbitration, huge rights grabs.

These aren't (or weren't) standard. There's no business reason for them. I mean, I can't indemnify a multinational corporation against all claims for the simple reason that I couldn't afford to hire lawyers to argue their case. I'd just go bust.

There is a toxic strain of competitive sadism in the law, an ethic of victory through someone else's humiliating defeat. If I had to guess why Duke smashes all those trademark applicants' dreams, I'd say that sadism is playing a major role.



Tory donors reap 100X return on campaign contributions (permalink)

Walmart founder Sam Walton had an iron-clad rule: his buyers were not allowed to take so much as a glass of water from salespeople. He understood that favors create an involuntary urge to reciprocity, and even the tiniest kindness from a salesman would corrupt his buyers.

Walmart is a prolific campaign contributor, funneling millions to lawmakers under the fiction that this will not corrupt them or cloud their judgment so that they legislate to Walmart's benefit and the public's detriment.

https://www.opensecrets.org/orgs/wal-mart-stores/summary?id=d000000367

This story epitomizes the contradiction of corporate lobbyists and their tame lawmakers: when corporations manage their own affairs, they place strict limits on conflicts of interest; but in the public sphere, they insist that these conflicts are immaterial.

A possibly related fact: the top UK Conservative Party donors gave £8.2m to the party, and then secured £881m in no-bid government contracts to provide covid-related services, many of which were spectacularly botched.

https://bylinetimes.com/2021/02/05/crony-ratio-conservative-donations-government-coronavirus-contracts/

It's tempting to see £881m in chumocratic largesse as a 100-to-1 return on investment, but that's not precisely right. Rather, as The Byline Times points out, it's a kind of stochastic corruption.

For decades, the Tories have promoted themselves as the party that would end public provision of services and replace it with fat private contracts, and so it attracted donors who valued this proposition, who then won those corrupt contracts.

Top Tory donors get to join the elite party "Leaders' Group," which regularly dines with the PM and their ministers, guaranteeing them insider access when contracts are being drafted.

114,000 Britons have died of covid.

(Image: Joe Gordon, CC BY-NC, modified)



A criminal enterprise with a country attached (permalink)

The Grand Duchy of Luxembourg is a founding member of the EU, but it's also a rogue state, enabling massive corruption throughout the trading bloc; while Cyprus and Malta will sell any corrupt robber-baron EU citizenship, it's Luxembourg that leads in laundering their money.

As the Tax Justice Network's Nick Shaxson memorably put it, Luxembourg is "a criminal enterprise with a country attached" – a country where corporations are guaranteed "an easy ride on taxes, disclosure, financial regulations, and criminal enforcement."

https://www.taxjustice.net/2019/11/01/if-tax-havens-scare-you-monopolies-should-too-and-vice-versa/

2014's Luxleaks exposed some of the worst corruption, whereby Pricewaterhousecooper worked with Luxembourg officials to secure illegal tax benefits for major corporations and the world's richest people.

https://en.wikipedia.org/wiki/LuxLeaks

Luxleaks lead to a 2018 EU directive that required member states to publish registers of the true owners of the companies they registered.

Luxembourg published theirs in 2019, and Le Monde partnered with ten media orgs for a year-long analysis of the register, which was published this week: Openlux. The findings reveal that Luxleaks was just the tip of the iceberg.

https://www.lemonde.fr/les-decodeurs/article/2021/02/08/openlux-the-secrets-of-luxembourg-a-tax-haven-at-the-heart-of-europe_6069140_4355770.html

Luxembourg claims that it primarily registers companies to serve Luxembourgers, but 90% of the country's companies are controlled by foreigners, lead by the French, who control 17,000 Lux companies.

All told, Luxembourg is home to 55,000 offsore companies with more than €6t in assets. Much of this wealth belongs to Russian oligarchs, Italian mafiosi, corrupt latinamerican leaders, and far-right EU parties like Italy's Lega.

Whole neighborhoods in large cities like London and Berlin are owned by Lux companies, empty safe-deposit boxes ultimately controlled by the wealthiest, most corrupt plutes of 157 countries.

279 of the world's ~2,000 billionaires park their money in Luxembourg through shell companies. But the country only employs 59 enforcers charged with monitoring compliance with corporate transparency laws. All told, the country's finance regulator has a mere 900 employees.

Thus, the secrets unearthed through Openlux only represent a fraction of the country's corruption – those companies that complied with the registration laws rather than risking enforcement by the minuscule cohort of vastly outnumbered legal enforcers.



This day in history (permalink)

#15yrsago Canadian Red Cross vows to sue first aid kits, too https://web.archive.org/web/20060222115219/https://www.shacknews.com/extras/2006/020906_redcross_1.x

#15yrsago How statistics caught Indonesia’s war-criminals https://web.archive.org/web/20060423232814/https://www.wired.com/news/technology/1,70196-0.html

#10yrsago Monkey Truck: colorful picture book with banana-farts and vroom-vrooms https://memex.craphound.com/2011/02/10/monkey-truck-colorful-picture-book-with-banana-farts-and-vroom-vrooms/

#5yrsago Hackers stole 101,000 taxpayers’ logins/passwords from the IRS https://arstechnica.com/tech-policy/2016/02/irs-website-attack-nets-e-filing-credentials-for-101000-taxpayers/

#5yrsago Detoxing is (worse than) bullshit: high lead levels in “detox clay” https://www.statnews.com/2016/02/02/detox-clay-fda-lead/

#5yrsago CIA boss flips out when Ron Wyden reminds him that CIA spied on the Senate https://www.techdirt.com/articles/20160209/18023733567/cia-director-freaks-out-after-senator-wyden-points-out-how-cia-spied-senate.shtml



Colophon (permalink)

Today's top sources: Nick Johnson (https://twitter.com/nicksdjohnson), Naked Capitalism (https://www.nakedcapitalism.com/), James Boyle (https://twitter.com/thepublicdomain).

Currently writing:

  • My next novel, "The Lost Cause," a post-GND novel about truth and reconciliation. Yesterday's progress: 521 words (108776 total).

  • A short story, "Jeffty is Five," for The Last Dangerous Visions. Yesterday's progress: 265 words (4294 total).

Currently reading: Analogia by George Dyson.

Latest podcast: Someone Comes to Town, Someone Leaves Town (part 30) https://craphound.com/articles/2021/01/31/someone-comes-to-town-someone-leaves-town-part-30/
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