The 4th amendment doesn't become null and void just because you have an easier time violating it.

In second place, we've got a response to the crazy South Carolina anti-porn bill that would mandate filters on all devices and charge people $20 to remove them. Machin Shin wondered how exactly that would play out:

Maybe it was his intention all along "But any manufacturer or seller that didn't want to install the system could pay a $20 opt-out fee for each device sold."

To me that pretty much says "$20 tax is being added to every internet device" because charging an extra $20 is a lot easier and cheaper than jumping over the impossibly high bar set for filtering the entire internet with 100% accuracy.

For editor's choice on the insightful side, we start out with a comment from Jeremy Lyman on the subject of the monopolies and anti-net-neutrality actions of the big ISPs:

If other video providers don't like it, they're all free to build national wireless data distribution networks and unfairly leverage them as they see fit.

Oh, wait. No. No, they're not allowed to do that at all.

Next, after a tiresome and daft commenter made some simplistic and binary assertions about regulation and capitalism, Chuck responded with a thorough and measured response on the subject:

I'm just going to go ahead and say this plain: I am not most Techdirt readers, but actually, YES, I do hate Capitalism and I am pro-regulation.

Now, to be fair, I actually don't hate Capitalism. Capitalism, though, is like faith. If you have BLIND faith, that's a bad thing. It shows a complete and total lack of understanding of the nature of humanity. Faith, giuded by evidence and reason, can be a good thing. Like faith that the president won't start a nuclear war tomorrow. Sure, he totally could, but I have faith, based on the fact that he hasn't for 8 years and his policies are all diplomacy-first, that he won't.

BLIND Capitalism is no better. "Greed is good" may be a joke to most people, but to an alarmingly large part of the richest, both here in the US and the world abroad, these are words to live by. Capitalism is a system of risk and reward, and that's actually a BAD thing. It actively encourages people who can afford to risk their money to do so, and rewards them with even more money. The people who have to gamble the clothes on their back and the food in their bellies in order to "make it" lose more often than they win, and usually because the people who are already established can afford to shut them down with very little risk to themselves.

Moderated, tampered Capitalism can be very good. A system like the Nordic Model - which is neither free-market Capitalism nor outright Socialism - is the ideal system. It is not a difficult system to find fault in, but then neither is ours, and the difference is their elderly are more well cared for, their children are smarter, and they are overall happier people. Life, liberty, and the pursuit of happiness, as it were.

And yes, I am pro-regulation. I am actually pro-unionization. Unions and regulations fill the same role, which is to keep corporations in check. Without one or the other, companies have zero logical reason not to engage in the worst possible behavior in search of the almighty dollar. We don't need both unions and regulation, but since American is (now) one of the least unionized nations on earth, I'm happier with more regulation than neither. Unions are still the ideal solution, but regulation is a decent stand-in.

So yes, in a certain sense, I hate Capitalism and I am pro-regulation, if you want to be overly simplistic about it, but like most things, it's more complicated than that. In truth, I love workers and I am pro-union. But that may be such an unimportant nuance (to you) that you can't see the difference.

There is still a difference, though.

Over on the funny side, our first place comment comes in response to a dental firm that attempted to route around safe harbors and take down bad reviews by abusing trademark law (only to be SLAPPed down). One anonymous commenter posited what reviews might look like under such a regime:

Dr. [Name] did my [dental procedure]. Both Dr. [Name] and his assistant Miss [hygienist] were courteous and the [dental procedure] was done in [time period]. I have recommended him to both [family member's name], my [family member's relation] and to [coworker's name].

In second place, we've got another response to the South Carolina anti-porn bill, this time from a confused anonymous commenter:

But I was told it was democrats who wanted to regulate every aspect of our lives!

For editor's choice on the funny side, we remain on that post, where one commenter suggested that solving the issue might be as easy as re-installing Windows 10 to remove bloatware. David saw a contradiction in that idea:

"Getting rid of bloatware" does not jibe with "re-install Windows 10".

And finally, we've got one more response to the question of regulation and capitalism, but this time it's That One Guy taking a slightly more sarcastic approach:

Absolutely right, there are only two options, an all Encompassing Government with All the Power and No Government At All!

No middle grounds!

You're either for everything the government does(and you're wrong), or anything the government does is wrong and to be fought at all costs. No exceptions and no grey in between, it's literally impossible to think that some things the government does is good and some things are bad, and the first should be encouraged while the second should be called out and fought against.

Entertaining venting aside, when you want to discus what people actually say, in the articles and in the comments, you might find people willing to listen instead of just brushing you aside as dishonest.

That's all for this week, folks!

The anti-SOPA momentum continued to gain steam at an exponential rate this week in 2011. Both polls and wildly successful petitions were demonstrating that Americans across the political and demographic spectrum were opposed to the bill. And the list of high-profile voices realizing SOPA was a bad thing was growing by the day: the cable news networks figured it out, a CBS opinion piece went as far as calling for MPAA boss Chris Dodd to be fired over his position on it, and a Reuters columnist explained why SOPA is a cure worse than the disease. Long-retired political cartoonist David Rees picked up his pen again to oppose the bill, MythBusters' Adam Savage explained why it could destroy the internet, and Ashton Kutcher spoke up as well. Scribd launched a creative and aggressive campaign to educate its users, and all sorts of major internet infrastructure players started coming out of the woodwork to oppose SOPA. And, in a major surprise, the Heritage Foundation broke its pattern of support for the MPAA and opposed the bill too.

Moreover, the bill's supposed "support" was crumbling. Gibson Guitars and several other companies that were listed as "in favor" stated that they said no such thing. Law firms started removing their names from those lists too. And, in a high-profile example of successful public pressure, GoDaddy reversed its position and withdrew all support.

Ten Years Ago

This week in 2006, the recording industry was pursuing its more traditional strategy of just suing everyone. The RIAA dropped a case against a mom because it couldn't draw blood from a stone, and turned its attentions to her kids, while a bunch of record labels ganged up and sued Allofmp3.com despite already pressuring Russia into going after the site for them. Meanwhile, with even folks like Roger Ebert calling for eliminating movie release windows and giving customers more options, there was a mixed response from the industry: some folks, like Xbox, were offering actually good video download services, while others like Morgan Freeman (for some reason) were offering crappy competition.

Fifteen Years Ago

This week in 2001, Universal began releasing copy protected CDs in the US to block people from ripping MP3s (or... playing the CDs in Mac computers or DVD players, because that's how you make a good product). A few days later, of course, the protection was easily cracked. Meanwhile, much like 2006's crappy Hollywood-built online movie services, the record industry's new MusicNet and PressPlay offerings were by all accounts pretty terrible, which might explain why music listeners across the board were mostly ignoring them. At least we also saw the seeds of some more successful digital innovations too: people began to notice that Netflix was a strong survivor of the dot-com bubble burst, and rumblings were afoot about selling games for mobile devices.

Although the title of the patent mentions advertising, some of its claims do not require any ads at all. In fact, the patent is so broad it reads on almost any system of using trays and carts at a checkpoint. The first claim of the patent (with limitations labeled), reads as follows:

1. A method comprising:

[a] positioning a first tray cart containing trays at the proximate end of a scanning device through which objects may be passed, wherein said scanning device comprises a proximate end and a distal end,

[b] removing a tray from said first tray cart,

[c] passing said tray through said scanning device from said proximate end through to said distal end,

[d] providing a second tray cart at said distal end of said scanning device,

[e] receiving said tray passed through said scanning device in said second tray cart, and

[f] moving said second cart to said proximate end of said scanning device so that said trays in said second cart be passed through said scanning device at said proximate end.

In plain English, this claim means: send trays through a checkpoint and use two carts to move the trays back and forth. As is common with patents, the claim uses obtuse language for ordinary things. For example, the word-salad at limitation [f] pretty much just says: "use a cart to move trays from the end of the checkpoint back to the start."

In a trial before the Court of Federal Claims, the government argued that this claim was obvious because moving trays using carts was well-known in many contexts. The court disagreed. The court suggested that even if using carts to move trays was well-known, the government needed prior art specifically for security checkpoints (arguably the government had such evidence, but the court disagreed on that point too).

In fairness to SecurityPoint, evidence at trial suggested that it had developed a good system for managing trays and carts within the confined space of an airport security checkpoint. But the patent's claims are far broader than any specific solution. This is something we often see in patent law: someone develops a (fairly narrow) innovation, but then broadly claims it, capturing things that are well-known or banal. This sort of claiming hurts follow-on inventors who develop their own ideas that wouldn't infringe any narrower claim, and weren't invented by the patent holder. But because the broader claim is allowed, their own inventions become infringing. Here, claim 1 is not limited to any particular kind of cart, tray, or scanner. The claim really reads on using a couple of carts to move trays and, in our view, should have been found obvious.

Together with Public Knowledge, we recently filed an amicus brief [PDF] asking the Supreme Court to consider the obviousness standard in patent law. We argue that, as applied by the Federal Circuit, obviousness law has abandoned common sense. Specifically, we argue that the Federal Circuit has failed to apply a Supreme Court case called KSR v. Teleflex that calls for a flexible, common sense approach. We hope the Supreme Court takes that case. If it does, it might help us save some tax dollars that would otherwise have gone to SecurityPoint. Unfortunately, whatever happens, we'll likely still be stuck waiting at airport checkpoints.

Reposted from EFF's Stupid Patent of the Month series.

This is stated plainly in the first bullet point of its encryption report [PDF]:

Any measure that weakens encryption works against the national interest

While the committees acknowledge encryption can impede investigative efforts, the downsides of backdoors cannot be offset by making things easier for certain government agencies.

[S]takeholders from all perspectives acknowledged the importance of encryption to our personal, economic, and national security. Representatives of the national security community told the EWG that strong encryption is vital to the national defense and to securing vital assets, such as critical infrastructure. Civil society organizations highlighted the importance of encryption for individual privacy, freedom of speech, human rights, and protection against government intrusion at home and abroad. Private sector stakeholders—in particular, their information security officers—and members of the academic community approached the question from an engineering perspective—against a wide array of threats, foreign and domestic, encryption is one of the strongest cybersecurity tools available.

However, the committees still believe there might be a way to reconcile competing interests, even though it has more questions than answers at this point. The report suggests more "collaboration" between tech companies and law enforcement agencies -- a term that generally means most of the compromises will be made by the private sector. Whether this means companies collecting more data and communications and storing them where law enforcement can access them or creating "one time" backdoors in response to court orders remains to be seen.

More encouragingly, the report suggests the "smart guys" in law enforcement haven't fully taken advantage of the tools and data available to them.

It also remains unclear whether the law enforcement community is positioned to fully leverage the unencrypted information still held by many companies. A number of stakeholders acknowledged the potential benefit of improving law enforcement’s understanding of what data or information is available, who controls it, and how it could be useful to investigators. In particular, companies are often able to provide volumes of unencrypted metadata associated with their products or services. In some cases, this source of information could be useful to investigators. In others, one representative of a law enforcement agency told the EWG, access to a stream of metadata might be more like “looking for a particular grain of sand on the beach.”

This is probably the result of the law enforcement mindset. It often seems agencies are more interested in what is quickest and easiest, rather than what might be more productive, if just a bit more difficult. (A number of cases where warrants were never obtained, despite officers having both the time and probable cause to do so, is evidence of this mindset.) The report suggests this is one area where things could be improved by collaboration with private companies. It's not a terrible suggestion but it's one that requires agencies to move on from their defeatist attitudes and to stop pretending advances in technology are always far more beneficial to criminals than to law enforcement.

The report also inadvertently points out just how disingenuous it is to shrug off mass surveillance concerns by saying, "It's just metadata."

Metadata may not completely replace the loss of encrypted content, but metadata analysis could play a role in filling in the gap. The technology community leverages this information every day to improve services and target advertisements. There appears to be an opportunity for law enforcement to better leverage this information in criminal investigations.

The report also touches on "legal hacking" as a potential solution -- albeit one with very limited practical application. If this is the route the government chooses to go more frequently in response to encrypted devices, it will signal the end of the already mostly-worthless Vulnerabilities Equity Process. It would also -- as the report acknowledges -- only further the "us vs. them" conflict between tech companies and law enforcement, as the government's interest in keeping vulnerabilities secret would tend to outweigh its obligation to divulge security holes to affected companies.

While the report breaks very little new ground in terms of issues raised, it does at least signal that legislative efforts to undermine encryption aren't likely to find much bipartisan support. So, for the time being, device encryption is still safe. It's the other issues raised -- legal hacking, compelled disclosure, etc. -- that will need to be watched closely in the future.

The last vestiges of the board's independence have been stripped away and it seems unlikely the incoming president is going to have much interest in restoring this essential part of intelligence oversight. Congress now has the power to steer the PCLOB's investigations. A new stipulation requiring the PCLOB to report directly to legislators means intelligence officials will be less forthcoming when discussing surveillance efforts with board members.

At best, the PCLOB would have limped on -- understaffed and neutered. That was back when the news was still good (but only in comparison). The Associate Press reports that Donald Trump is being handed the keys to a well-oiled surveillance machine, but with hardly any of the pesky oversight that ruins the fun.

The five-member Privacy and Civil Liberties Oversight Board will have only two remaining members as of Jan. 7 — and zero Democrats even though it is required to operate as an independent, bipartisan agency. The vacancies mean it will lack the minimum three members required to conduct business and can work only on ongoing projects.

This could be fixed quickly, but it would require Trump nominating members and having the Senate approve them. It took well over a half-decade for President Obama to do this, so it wasn't even a priority for a president who promised to helm the "most transparent administration." These vacancies will probably be left open by an incoming president who seems largely uninterested in safeguarding civil liberties.

The PCLOB's report was instrumental in the challenged renewal of the Section 215 bulk collection program. The board might have played a similar role in the Section 702 renewal discussion in 2017, but with it out of the way, there's a good chance it won't receive as much of a challenge as the NSA's phone metadata program. (Then again, the PCLOB wasn't very critical of this internet backbone-tapping collection program, despite it harvesting far more than "just metadata.")

More critically, it left some work unfinished -- its investigation into the executive order underpinning the government's many intelligence programs.

Already in limbo is a public oversight report on the use of a Reagan-era executive order that since 1981 has authorized sweeping powers by intelligence agencies like the NSA to spy even on innocent Americans abroad and never has been subject to meaningful oversight from Congress or courts...

The privacy panel's report on the order is stalled and there's no work being done on it, according to the individual, who has knowledge about the project's status. Some individual agency reports related to the order were expected to be completed before the board loses its quorum, the person said.

The PCLOB is dead, for all intents and purposes. It survives in name only, awaiting presidential attention it's unlikely to receive. The last 15 years have shown what a lack of oversight can result in. The past couple of years have seen some encouraging movements towards accountability and transparency, but without the PCLOB's ability to perform its own investigations and, more importantly, deliver its findings to the public, further reform efforts are likely to be snuffed out.

All commercial businesses located here will now be required to install and maintain security cameras or face a fine or jail following passage of a new citywide ordinance by the Mayor and Board of Aldermen Tuesday night.

“A matter that has been of increasing concern to the board lately is keeping the citizens of Madison safe, as well as the people who come here to visit our stores, through the use of security cameras,” City Attorney John Hedglin said. “It’s very important to have a record of what happens in as many places as possible.”

The ordinance has 30 days before it takes effect.

"Here" is Madison, Mississippi, a city with some very low crime rates -- one frequently named to "safest cities" and "best towns for families" lists. Why it's suddenly concerned about business-focused criminal activity is unclear, but the city's government has decided it should be able to force businesses to install CCTV systems, whether or not they need them… or can even pay for them.

Renee Burns, manager of Hop and Habanas, voiced concerns about the cost of surveillance equipment in an interview with WAPT News.

“Surveillance cameras are very expensive, to get everything set up and it could have people close their stores because they can’t afford it,” Burns said.

And if they can't afford them, the new statute will make sure they can't afford to stay in business.

Existing businesses will have one year after the ordinance goes into effect to comply. Those that fail to comply may be subject to a $500 fine and/or up to 90 days in jail. Each day of noncompliance is a different violation.

While there have been similar statutes enacted in other cities, these have generally been targeted at businesses already subject to extra regulation, like pawn shops, gun stores, and pharmacies. There has been some mission creep in recent years, leading to other businesses being ordered to install surveillance systems, like cellphone resellers and scrap metal dealers.

On top of that, many of these ordinances also allow for on-demand law enforcement access, allowing the government to extend its surveillance reach without having to pay for the equipment. The specifics of Madison's new statute haven't been made available yet, so it's unclear whether the collection of footage from businesses will be voluntary and tied only to investigations requested by business owners, or whether law enforcement will just be able to show up and demand to see recordings.

Then there are other privacy concerns to address. The city's attorney has stated that the ordinance covers businesses like doctor's offices and law offices -- places where patient/client confidentiality has long been assumed. Forcing businesses like these to record interactions with their customers would perhaps prevent more-privacy conscious individuals from seeking help. And this new collection of footage could be abused/misused to identify people who thought their requests for legal/medical assistance wouldn't be turned over to law enforcement.

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And so the speculation began as to what was going on. Some said the game makers were finally realizing that DRM is pretty much useless at everything other than being a minor inconvenience for cracking groups and a major inconvenience for many legitimate customers. Others suggested that perhaps Denuvo offered some kind of money-back deal if a game using it was cracked within a certain time-frame. Still others claimed that publishers were only using the DRM during the initial release window of the game to protect it during the most crucial sales period, and then dropping it afterwards.

Denuvo, just recently, publicly endorsed the last theory.

“The simple reason why Denuvo Anti Tamper was removed from Doom was because it had accomplished its purpose by keeping the game safe from piracy during the initial sales window,” Denuvo’s Robert Hernandez said to me in an email. “The protection on Doom held up for nearly four months, which is an impressive accomplishment for such a high-profile game.”

Hernandez also insisted there is nothing like a money-back program if a game using Denuvo is cracked. And perhaps he's correct about why these games are suddenly dropping the DRM, although it should be clear that this theory is the best one available for Denuvo's business. The other two theories mean Denuvo is a failure. At least the idea that game publishers are using it during the initial release window allows the company to claim it's still providing a benefit to publishers.

But for how long? Given the precipitous drop in the posturing around Denuvo from "un-crackable" to "hey, we kept the game safe from piracy for a couple of months", it's reasonable to wonder why that downward trend shouldn't continue in that direction. Unless the company has some serious tricks up its corporate sleeve, it's not like cracking times are going get longer rather than shorter.

And the bigger question is one of math. If Denuvo carries negatives in its use, as its being dropped by several games clearly suggests, are those negatives really made up for by a couple of month's worth of protection? At four months, perhaps id Software thought it was. But if that protection window shrinks, there is going to be a line which, once crossed, makes Denuvo more trouble than its worth. You know, like every other DRM ever created. Denuvo's business still relies on its software being a unicorn, although one it already acknowledges has a horn much less shiny than originally believed.

"Over the course of the last few weeks, we have taken steps to further enhance the data security and privacy measures for our product offering. As part of this effort, we have engaged external security and privacy experts to conduct a thorough review of our data practices with a view of further strengthening data protection and privacy for our customers. We are also committed to better communicating our data practices. We are updating the We-Connect app later this month, and the update will include new in-app communication regarding our privacy and data practices and a new feature for consumers to control how their data may be used."

In its affirmation [PDF] of the lower court's decision to strip Major Tommy Wheeler of the Douglas County Sheriff's Department of immunity in relation to defamation claims (and deny his motion to dismiss on the rights violation claim), the Eleventh Circuit Court recaps the events that led to this lawsuit.

The be-on-the-lookout advisory (“BOLO”) to all law enforcement in Douglas County, Georgia, described its subject as a “loose cannon.” “Consider this man a danger to any [law-enforcement officer] in Douglas County and act accordingly,” the BOLO alarmingly warned and ominously instructed.

What had the subject of the BOLO done to trigger such a grave alert? Had he threatened law enforcement or the public? Had he broken any laws? Was he mentally unstable? Had he been acting at all suspiciously? No, no, no, and no. Instead, Plaintiff-Appellee Derrick Bailey, the subject of the BOLO, had wielded the mightiest weapon of them all: the pen.

An officer of the Douglasville Police Department, Bailey had filed a written complaint with his chief, reporting that other Douglasville officers and Douglas County Sheriff’s Office deputies had been racially profiling minority citizens and committing other constitutional violations.

Bailey’s revelations did not go over well in Douglas County’s law enforcement community. Indeed, several months later, Bailey found himself without a job.

Prior to Bailey calling out the Sheriff's department for alleged constitutional violations, he had been considered a valued member of the team. He brought with him 17 years of law enforcement experience when he was hired with the Douglas Police. Unfortunately for him, he also brought his conscience. He filed a written complaint with the department after witnessing his fellow officers in action. He also wasn't thrilled with their racist euphemisms.

Bailey also complained that law enforcement officers made racially offensive comments and jokes about minorities, describing black males as “black as shoe polish wearing all black” and remarking that the City of Douglasville’s (“City”) logo was a “lynching tree.” Finally, Bailey expressed concern that he would lose his job for “making the complaints and speaking out about racial profiling and other violations.”

Things swiftly turned worse for Bailey. After filing the complaint, he was instructed to rewrite the incident reports he had previously filed. When he informed his supervisors (who were now engaged in an investigation of him) that rewriting incident reports violated department policy, he was suspended for "conduct unbecoming an officer." Eight days later, he was fired.

He appealed his termination, but that only led to more abusive behavior.

The City held a hearing on Bailey’s appeal on February 8, 2013. That very night, two deputies in a Sheriff’s Office vehicle followed Bailey as he drove his personal car from Douglasville into the City of Atlanta. When Bailey entered his intended destination, the two deputies followed him in and stared him down.

Things did not improve for Bailey. The next day, February 9, 2013, Wheeler issued the BOLO on Bailey, displaying Bailey’s photograph, calling him a “loose cannon,” and warning law-enforcement officers to “[c]onsider this man a danger to any [law-enforcement officer] in Douglas County and act accordingly.” And for the second day in a row, law enforcement—this time vehicles from both the Sheriff’s Office and the Police Department—followed Bailey as he drove his personal car.

Three weeks later, Bailey was rehired by the police department. Only then did supervisors there agree to call the Sheriff's Department and have the BOLO cancelled.

Major Wheeler claimed his BOLO announcement had no adversarial effect on Bailey's First Amendment rights. The court cannot see how this can possibly be the case. Bailey not only had reason to believe he would be subject to intimidating behavior if he exercised his rights, but that he also might end up full of bullets.

In this case, we readily conclude that Wheeler’s BOLO “would likely deter a person of ordinary firmness from the exercise of First Amendment rights.” First, the BOLO described Bailey as a “loose cannon” who was a “danger to any [law-enforcement officer] in Douglas County.” Viewed in a light most favorable to Bailey, this description, accompanied by Bailey’s photograph, created the impression that Bailey was mentally unstable and roaming Douglas County with a grudge against law-enforcement officers. Then, after inciting law-enforcement officers to fear for their lives, the BOLO empowered these now-anxious officers to “act accordingly” upon coming into contact with Bailey.

"Act accordingly" is the ultimate chilling phrase in law enforcement's hands, as the court points out to a willfully-obtuse Major Wheeler (the appellant).

Let’s pause for a moment to appreciate just how a reasonable law enforcement officer may have understood that instruction. Under Georgia law, when a subject is armed and dangerous, an officer may shoot the subject in self-defense—a term Georgia construes as having justifiable intent to use such force as the officer reasonably believes to be necessary to prevent death or great bodily injury. So, in other words, Wheeler’s BOLO gave all Douglas County law-enforcement officers a reasonable basis for using force—including deadly force—against Bailey if they reasonably misconstrued a single move Bailey made—such as reaching into his pocket when confronted by law-enforcement officers—as imperiling themselves or anyone else. We think that this situation, which potentially seriously endangered Bailey’s life, easily would deter a person of ordinary firmness from exercising his First Amendment rights.

Two other factors played into the chilling of Officer Bailey's speech. First, he was African-American, and department officers had already made a number of racist comments in his vicinity. Second, the BOLO was issued less than a week after Officer Chris Dorner of the LAPD had been the subject of a similar announcement -- one that resulted in officers all over the city placing itchier and itchier fingers on triggers. In the case of two unfortunate women out delivering newspapers, this resulted in eight officers firing over 100 bullets into their pickup truck. A BOLO can easily have deadly consequences, even without these two issues factored in.

The court finds it impossible to comprehend that such an order wouldn't have a chilling effect on the subject's speech. Or that the person issuing such an order would have the gall to consider himself a law enforcement officer.

Law-enforcement officers are sworn to protect and defend the lives of others. It is completely antithetical to those sworn duties for a law-enforcement officer to use his position to harness the power of an entire county’s law-enforcement force to teach a lesson to—and potentially very seriously endanger—someone who had the temerity to speak up about alleged abuses.

This is what happens to good cops. They speak up and lose their jobs. Or they stay in the force and are treated with suspicion and disdain. Either way, they are given no chance to change the culture from the inside. It's no wonder so many cops start out good and end up just like the worst of their numbers. Whistleblowing and breaking rank are considered something to be punished, rather than rewarded. Those wanting to make a career of law enforcement learn quickly the best way to get through with a minimum of hassle is to keep their heads down, eyes averted, and mouths shut.

The latest such dispute is between Butterball, the turkey-selling king based out of North Carolina, and a small wine company in Australia. At issue is one of McWilliam's Wines Group's chardonnays, which the company has branded as its Butterball Chardonnay.

According to a complaint filed Dec. 12 in the U.S. District Court for the Eastern District of North Carolina, Butterball states that McWilliam’s Wines Group Ltd. “produces, sells, distributes, and imports into the United States a variety of Evans & Tate branded wines, including a type of chardonnay named ‘BUTTERBALL.’”

Butterball states that its trademarked goods and services range from turkeys and marinades to fat fryers and mobile device software. The complaint goes on to say, “The consumer goodwill associated with the BUTTERBALL Marks is one of Butterball’s most valuable assets. Accordingly, the integrity of the BUTTERBALL Marks is extremely important to Butterball and crucial to the continued vitality and growth of Butterball’s business.”

Notably absent from Butterball's list of goods and services using the Butterball trademark is anything having to do with wine in particular, or even beverages in general. And there is good reason for this: Butterball doesn't make wine. A brief look at its products page confirms what everyone already knows: Butterball makes meat products, along with a few ancillary items. In other words, when you think of Butterball, you think of turkey. It seems unlikely that the company can argue it is in a competitive marketplace with a wine seller at all, never mind that there might be any kind of customer confusion that could occur due to the name.

And the branding of both companies doesn't make confusion any more likely. Here are both brands side by side.

Yeah, the branding of the wine label looks nothing like Butterball's branding, and it has the name of the wine company clearly depicted on it. Now, I'm sure that Butterball will at some point trot out the trademark bully's favorite excuse and claim it had to file this lawsuit or risk losing its trademark, but that isn't actually true. It would only be true if there were actual potential confusion or a real demonstrable infringement within Butterball's marketplace. Neither are the case.

This lawsuit is a real turkey, in other words. I'm so, so sorry...

Yet Nintendo has been notably lenient in some areas in enforcing its intellectual property as well. The most prominent of these would be what's referred to as "ROM hacks", in which the original Nintendo ROMs are modded to include new and original content. These ROM hacks abound and are readily available, requiring the original game (or a pirated version) in order to be used. Now, for the first time reported, one of these ROM hacks has fallen into the sights of Nintendo's lawyers.

A fan-made Pokémon ROM hack in the works for eight years was set to launch this Sunday. But a letter sent by Nintendo's Australian law firm on Wednesday has stopped those plans in their tracks. According to Adam "Koolboyman" Vierra, developer of the fan-made Pokémon Prism project, Nintendo's Australian law firm sent him a cease-and-desist letter, which he uploaded to Google Drive with identifying information redacted. (American representatives for Nintendo were not able to confirm the letter's authenticity as of press time.) The request alleges that Koolboyman's project, which alters the source ROM of the 1999 game Pokémon Gold to create an entirely new adventure, violates multiple Australian laws.

The location of all of this requires some explanation. Vierra lives in California and Nintendo's legal team is based out of the United States, but Vierra had been planning on releasing the game via Rijon.com, which is based in Australia. It was Nintendo's Australian legal team that sent the threat letter. That team has previously taken action against downloaders of pirated Nintendo games, but not on creative fans producing these kinds of ROM hacks. As noted before, the company worldwide has generally allowed these add-on mods to exist. Not so much in this case, for reasons not currently being offered by Nintendo.

But let's all not lose sight that this is a mod on a game nearly two decades old created by a fan to incorporate brand new gameplay and story elements into the existing game and engine, and was going to be offered free of charge. It's CounterStrike, in other words, except using a Nintendo product. And there are entire sites and fan-groups built around these sorts of mods. They're a boon to gaming companies by extending the life of the demand for a game for free, as fans take on the work of adding on to it in a way that still requires the original in order to play it at all.

And this isn't even Vierra's first go at this sort of thing.

Vierra himself might have assumed Nintendo would allow a Pokémon ROM hack, because his last one, Pokémon Brown, launched in 2004 with nothing in the way of dispute from Nintendo. That hack's new "Rijon" region would have been hugely expanded upon in Pokémon Prism. It would have contained other tweaks, such as Brown's special monster types (wood, gas, wind, abnormal, and sound), a tweak to the game's "clock" system, and new music compositions. (Other Pokémon ROM hack depositories are easy to find online.)

One could say that this all reeks of a legal team in a foreign country not being on the same page as the HQ back home. Except that it can also be said that expanding IP enforcement to this new front is perfectly in line with Nintendo's general heavy-handed approach to protectionism. Because Nintendo can't help itself. Because Nintendo hates you.

Congress should pass legislation to establish a clear, nationwide framework for when and how geolocation information can be accessed and used.

Before it reaches this conclusion, the Committee spends a great deal of time recounting the history of both the devices' usage, as well as any steps taken (most of them very recently) to govern their use.

The report [PDF] points to the Supreme Court's Jones decision, albeit not in a very helpful way. The justices punted on the warrant question, leaving it up to lower courts' interpretation as to whether or not tracking someone with a GPS device violated their privacy. The only thing they did agree on was the intrusion onto the property to install the device on the petitioner's vehicle. Everything else was left unclear, including the lack of a bright line for how much location tracking equals unconstitutional tracking.

Cell site simulators can perform the same function and, until recently, every law enforcement agency in possession of the devices deployed them without seeking search warrants. The DOJ finally suggested warrants might be necessary in 2015, which would only be about 18 years since DOJ elements began using Stingray devices.

A 1997 DOJ guidance bulletin discussed the agency’s views on what legal authority governed the various law enforcement surveillance options, including “cell-site simulator.” According to the 1997 guidance, DOJ took the position that “it does not appear that there are constitutional or statutory constraints on the warrantless use of such a device.” According to a chart that was issued with the guidance, court orders, search warrants, and subpoena requirements were not applicable when deploying this device.

For most law enforcement agencies, the lack of a warrant requirement has allowed them to disguise their Stingray deployments. Most have sought pen register orders instead for this form of real-time location tracking. Others have used parallel construction to hide use of IMSI catchers from courts, defendants, and, in some cases, the prosecutors they work with. This was all heavily encouraged by the FBI's nondisclosure agreement, which it made law enforcement officials sign before allowing them to purchase the devices.

Now, they're everywhere. The IRS has its own devices and feds are attaching IMSI catchers to planes and flying them over cities in hopes of tracking down suspects. What's more concerning is the devices' capabilities, which federal and local law enforcement agencies all swear they've never used.

In testimony before the Committee, DOJ and DHS both confirmed the simulator devices they use do not intercept any communications or content from the cellular devices to which they connect. Specifically, DOJ confirmed that between January 1, 2010 and September 2, 2015, its component agencies using the technology—the FBI; the Drug Enforcement Administration (DEA); the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); and U.S. Marshals Service (USMS)—only collected dialing, routing, signaling and addressing information in domestic criminal investigations and did not use the devices to collect the content of communications. While the current DOJ and DHS policies require the cell-site simulators to be configured as pen registers and to not collect content, some of the cell-site simulator models used by law enforcement components within DOJ and DHS would be capable of collecting content if the devices had the necessary software installed.

The Committee points out that if the federal government doesn't hand down universal controls for the deployment of these devices, the situation will only devolve from here.

Further, the Committee notes that these devices are available all over the world and with even fewer usage restrictions. And the tech is more widely available than the US government would hope, which means those who care little for policies, guidance, or federal law won't hesitate to deploy these themselves.

It is possible, if not likely, bad actors will use these devices to further their aims. Criminals and spies, however, will not be adopting the DOJ and DHS policies and procedures or any other ethics of surveillance. They will not be self-limiting in their use of these devices so as to not capture the content of others’ conversations. Criminals could use these devices to track potential victims or even members of law enforcement. One can imagine scenarios where criminals or foreign agents use this type of technology to intercept text messages and voice calls of law enforcement, corporate CEOs, or elected officials.

The report notes that devices are already for sale on foreign websites, and those selling them are suggesting purchasers set them up in high-traffic areas (near banks, restaurants, hospitals, etc.) for maximum effectiveness. On top of that, hobbyists and researchers have been able to put together their own IMSI catchers, all without the guidance or assistance of companies who sell their devices to a highly-restricted list of government agencies. The secret is out -- and has been out for years. While any legislation would do little to deter bad actors, it would at least allow the US to act as a role model for foreign governments to emulate and give it some sort of (belated) moral high ground to stand on when restricting US companies from selling surveillance tech to governments with human rights abuse track records.

If nothing else, the hope is that the legislation called for will result in a cohesive, coherent ruleset that's also Constitutionally-sound. Obviously, this will be met with law enforcement resistance, as anything that implements a warrant requirement generally does.

Universal keeps a tight grip in an attempt to control everything to do with its products, in other words. But when the internet is involved, such attempts at control can go horribly, horribly wrong. Such is the case with the recent leak of an unfinished trailer for the upcoming film The Mummy.

Yesterday morning very few people knew that a new version of The Mummy will be on the big screen next summer. That changed quickly when an unfinished trailer of the film was accidentally put online by IMAX’s YouTube account. As it turns out, the trailer where Tom Cruise is screaming without sound effects is quite an entertaining watch. Soon, the mistake was reposted all over the Internet, where it triggered a meme fest. Great promotion for the film, one would think, but the bosses at Universal Pictures weren’t smiling.

Let me make this more clear: this trailer, and memes incorporating it, were everywhere these past couple of days. And, to a lesser extent, they still are out there. Not with any sort of approval by Universal, of course, whose lawyers have been firing off DMCA notices to take down the trailer wherever they can find it.

On Twitter alone, several people had their postings removed over copyright infringement claims. According to the movie studio, the “leaked” trailer is not for the public’s eyes.

“The uploaded trailer was a leaked version without sound fx. This was accidentally released online but is not intended to be available for public viewing. We have removed it from YouTube, but it is still populating on Twitter,” they write.

Indeed it is, and it's not difficult to understand why. On the one hand, the trailer without sound effects and music is truly hilarious and entertaining. In fact, one wonders if any polished and completed trailer could garner so much attention as this unfinished one. On the other hand, it's quite interesting to get a glimpse at what the unpolished footage looks like, and to understand how much a musical score and sound work add to the experience. Whichever angle you come at it from, it's fun.

And it was a massive opportunity for Universal Pictures to join in on the fun, be awesome and human, and enjoy all of the massive and free publicity its unreleased movie was suddenly getting. Sure, the trailer is goofy without the production values the completed product will enjoy. But so what? Everyone understands that. And everyone realizes that the studio had no intention of the public seeing this version of the trailer. But now that it's out, Universal should be doing everything it can to supercharge the viral nature of all of this free publicity and bending some good will from the public. Instead, they are trying to shut the whole thing down.

Which, of course, isn't working.

As a result, many copies that were posted on Twitter, YouTube and elsewhere are no longer working. However, there is so much interest in the trailer that Universal can’t really keep up. For every video that’s pulled offline, several others appear elsewhere. It seems virtually impossible at this point to put the genie back in the bottle. In fact, the trailer has become a fertile breeding ground for memes, with people adding their own soundtrack or using Tom Cruise’s scream as the modern-day Wilhelm scream to pimp other videos.

And this sort of thing will only be furthered now that reports are out about Universal's attempt to unring the bell. So, the lawyers will accomplish nothing other than to create animosity where there was once only interest. Great job all around.

"A lot of it is unrecognizable from a Fourth Amendment perspective," said Orin Kerr, a former federal prosecutor and Georgetown University Law School expert on surveillance. "It's not where the traditional Fourth Amendment law is."

"Computerized scanning of communications in the same way that your email service provider scans looking for viruses - that should not be considered a search requiring a warrant for Fourth Amendment purposes," said Litt.

ODNI's Litt wrote in a February Yale Law Review article that the new approach was appropriate, in part because so much personal data is willingly shared by consumers with technology companies. Litt advocated for courts to evaluate "reasonableness" by looking at the entirety of the government's activity, including the degree of transparency.

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In the U.S., publishers continue investing in innovative technologies and business models to support the creation and dissemination of works of original expression, by novice as well as celebrated authors. Their ability to get those works into the marketplace, without interference from government and with the key assets of their exclusive rights in such works acknowledged as legally-safeguarded intellectual property, is protected by the First Amendment’s guarantee of freedom of speech and the Constitution’s clear recognition that “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” will “Promote the Progress of Science and useful Arts.” (Article 1, Section 8, Clause 8)

Surely you understand the role that meaningful intellectual property rights play in American entrepreneurial success, both at home and in global markets, as the ability to burnish the Trump brand through trademark registration and enforcement has helped your diverse enterprises to grow and thrive world-wide. Consistent with that understanding, your businesses have been active at the U.S. Trademark Office and in the courts when necessary to exercise your statutory rights to prevent infringement or dilution of your brand.

Whether operating on a commercial or non-profit basis, publishers’ reliance on their ability to secure adequate copyright protection and effective copyright enforcement, under both federal law and a variety of international agreements, is as critical to their success as the maintenance of trademark protection has been for your business endeavors. It is essential to their ability to publish in the U.S., where readers of all ages, origins and interests can relish discovering and digesting works that entertain or inform them while enriching the cultural, historical, political, and scientific record of American society.

Provisions of the Digital Millennium Copyright Act (“DMCA”), which Congress enacted in 1998 to encourage online availability of popular copyrighted works while promoting a balance of interests and cooperation between copyright owners and Internet service providers in dealing with online infringement of such works, wildly succeeded in encouraging such availability. However, the relevant DMCA provisions do not achieve that intended balance and cooperation due to numerous instances of judicial misapplication and the unanticipated appearance of service provider business models that foster, exploit and profit from online infringement by their users while offering only token compliance with the law.

The current epidemic of online infringement harms public as well as private interests in the availability of such works, and the legal flaws that hamper the DMCA in its intended operation need to be fixed by our nation’s elected representatives.

Fortunately, a federal law going into effect next year will limit some of this bullshit behavior. It won't prevent companies and individuals from filing bogus libel lawsuits, but it will prevent entities from using contractual clauses as prior restraint on negative reviews and criticism.

This tactic, however, is a new twist on the old "punish customers for negative reviews" game. A user of Ham Radio Deluxe wasn't too happy with its apparent incompatibility with Windows 10. He posted a negative review of the software at eHam.net, calling out the company for its seeming unwillingness to fix the underlying issue.

I purchased HRD 6.3, only to find out Windows XP was not supported. So, I installed HRD on a brand new Windows 10 machine, and everything appeared to be working fine. Then, I installed Office 365, and it broke the LogBook. Known problem, they say. There is a whole page devoted to telling you how to tweak the registry, download things, repair files, etc, etc.

Alright guys, enough is enough. If you have known problems, like compatibility issues with Microsoft products, you need to release a hotfix. It would take a day to create a script to do all of the things your page says to do, and it would be idiot proof. Nobody should ever have to edit their registry because of a compatibility issue caused by your software using an old jet driver and ODBC for communications. ESPECIALLY if the issue occurred from installing a tried and true product like Office.

[...]

I can see a lot of development time went into the bells and whistles, but for goodness sake, make it a little more user-friendly and a little more stable before pushing it to market. I'd expect bugs and lengthy configuration procedures in free software. Caveat emptor. Know what you're getting before you drop the money on software that, in my opinion, is not mature.

Sorry guys, I've tried to love it. It just isn't worth the price.

Nothing out of the ordinary here. A dissatisfied customer airs his grievances about a purchased product. The user also opened a support ticket with HRD Software hoping it could solve his problems.

HRD Software replied to the ticket, telling the user to download a patch for the malfunctioning software.

The version of HRD you indicated IS NOT the latest release... Current Version: V 6.3.0.610 In order to provide proper support for your issue and to insure we are all on the same version, please download and install the current version of Ham Radio Deluxe. It can be downloaded by clicking on or copying and pasting http://www.hrdsoftwarellc.com/downloads.html into your favorite browser, to take you to the HRD Software Download page on our website.   You could also click on the Current Version link in the "HRD Help Links" to begin an immediate download. Once you have downloaded and installed the current release of HRD, please test it thoroughly to see if the issue you have been having has been resolved.

Seems normal enough. But more problems developed.

I've tried to install the update according to your directions. Now when I click on the HRD icon, I get the splash screen from version 6.3.0.610 for about a second, and then it disappears and nothing else happens. Was I supposed to uninstall the old version first? I downloaded the setup.exe file you highlited above.   I am now completely dead because of a minor problem. This is exactly what I was trying to avoid. Please advise what steps to take from here. This is a new computer and v610 was a fresh install. Thank you

The company's response? We've intentionally bricked your software because of your negative review at eHam.

We would also like to request that you NOT RENEW your support nor use our software due to the review you placed on eHam back in September. Remember that? http://www.eham.net/reviews/review/143372

The "customer support" at HRD Software then pointed the user to its terms of service, stating that it had the right to do what it had just done. HRD Software reserves the "right" to "disable a customer's key at any time for any reason." Then it told him the blacklisting would be revoked if he removed his negative review. Bonus: mention of a capital-A "Attorney" for added seriousness, I guess.

If you remove the eHam review, which was blatantly false, we will remove the blacklist from you call. You are not buying software, you are buying your callsign's access to the software. the so called bug you reported is not one in HRD, but one in the CAT commands of the FT­3000 radio, which have been verified with yaesu. Again refer to section 8 of the TOS, which was written by our Attorney.

And with that, HRD Software set its reputation on fire. A long thread at QRZ.com is the ham enthusiast forum's version of Sherman's March to the Sea, with HRD being razed to the ground like so many antebellum mansions.

But there's a twist: 37 pages into into this forum's discussion of HRD's brutally inept handling of a customer complaint, the co-owner of the company wades into the fray and apologizes. Then he spends the next twenty-plus pages engaging with the ham radio community in hopes of fixing issues, past and present, and somehow salvaging a future out of the barely-glowing embers of its reputation. So do some other members of the HRD team -- including one who threatened the user with a lawsuit on top of bricking his paid-for software.

They're not met with much enthusiasm, but it's a far better response than ignoring the issue and/or sniping back with more complaints about the behavior of paying customers. In any event, this is yet another addition to the growing body of knowledge filed under the heading of "Customer Service: You're Doing It Wrong."

"But seeking permits to lay fiber is time-consuming and digging holes expensive. Former employees say Page became frustrated with Fiber’s lack of progress. “Larry just thought it wasn’t game-changing enough,” says a former Page adviser. “There’s no flying-saucer shit in laying fiber.” In October the company announced that it was dismissing around 130 staffers and halting the expansion of the fiber network in eight cities. Barratt resigned that same day."

"These changes have prompted many in Silicon Valley to accuse Page of bowing to investor pressure—in other words, of acting like a CEO of a normal, publicly traded company. “It definitely looks like a more conventional company,” says Randy Komisar, a partner at Kleiner Perkins Caufield & Byers. “It’s the classic GE conglomerate model,” he says, comparing Page to Jack Welch, famous for turning General Electric around by shedding research divisions and slashing costs."

In 2014, a prominent cancer researcher sued several anonymous PubPeer users for defamation. He alleged that they defamed him by pointing out anomalies in his research, and he claimed that their comments cost him a tenured position with a university. Through the lawsuit, the researcher obtained a subpoena requiring PubPeer to disclose the users’ identifying information.

Dr. Fazlul Sarkar claimed this case was about "tortious interference" with his career and "not about free speech." He also claimed the comments were defamatory. Sarkar tried to unmask five commenters, but the Michigan trial court trimmed that number down to one. PubPeer fought back, challenging this single unmasking attempt.

After reviewing the multiple pages of comments submitted as evidence of his defamation claims, the Appeals Court cannot find anything approaching the libelous subject matter Sarkar claims he sees. The court refuses to do his work for him. From the opinion [PDF]:

After reviewing these paragraphs, we conclude that they are facially deficient and unable to survive a motion for summary disposition pursuant to MCR 2.116(C)(8). As stated above, “[a] plaintiff claiming defamation must plead a defamation claim with specificity by identifying the exact language that the plaintiff alleges to be defamatory.” Ghanam, 303 Mich App at 543 (citation and internal quotation marks omitted).14 Here, minimal language is specifically identified in these paragraphs in the complaint, and Dr. Sarkar apparently relies on the trial court and this Court to visit pubpeer.com and learn the underlying science at issue to determine whether the statement constitutes a potentially defamatory accusation. In essence, we would be left searching the webpages that he cites to in hopes of finding comments that do or do not support his claim. This is his, not our, burden, and we decline to do so for him.

That disposes of most of Sarkar's libel claims. The few remaining comments that veer closer to defamation still aren't, as the commenters' statements were based on the thing that causes a great many libel lawsuit fatalities: facts.

Assuming that these paragraphs are facially sufficient, we nevertheless conclude that they are also unable to survive a motion for summary disposition pursuant to MCR 2.116(C)(8). While we are unable to find any Michigan caselaw specifically addressing comments of this nature, other jurisdictions, both federal and state, have addressed similar issues on many occasions. In doing so, they have recognized “that when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment.” Partington v Bugliosi, 56 F3d 1147, 1156 (CA 9, 1995). This is true even if the speaker expresses his or her opinion anonymously. Each of the paragraphs above reflect the speaker’s opinion based on underlying facts that are available to readers.

And, since Sarkar's claims fall short of the defamation mark, any effort taken to unmask the sole remaining commenter would be detrimental to their First Amendment protections. The court says Sarkar cannot unmask any of the PubPeer commenters and strongly hints that further pursuing any defamation claims against any of the commenters is just going to be a waste of the Sarkar's time and money.

The court's decision to protect the anonymity of these commenters is a First Amendment win overall, but especially important for those in the scientific community, as Adam Marcus and Ivan Oransky point out.

Why is anonymity so important to science? A few reasons. The first: Many people in a position to observe questionable research practices in a lab are underlings — postdocs, students, and others of similarly low station. Like the indentured servants they for all practical purposes are, they’re powerless against lab heads and senior members of the faculty. The shield of anonymity is a crucial protection against retribution.

In addition, even peers may not feel comfortable making public allegations or questions about a colleague’s work, for obvious reasons. They may doze through the same department meetings, sit on the same editorial boards, or be active in the same professional societies.

And, specifically for PubPeer, this means post-publication research can be examined, questioned, and criticized with a reduced fear of reprisal. The scientific process doesn't end with publication, and the court's decision here solidifies protections for this essential aspect of online discourse.

Less common, but not completely absent, however. In Australia, for instance, one winery sued another over a trademark it holds on the word "signature." The suit failed for exactly the reasons you're thinking of.

Yesterday the court dismissed an application by Yalumba against the Jacobs Creek Reserve Barossa Signature range, which claimed the Pernod Ricard term infringed on the Yalumba trade mark, “THE SIGNATURE”. The fight was provoked by Yalumba owner Robert Hill-Smith when Pernod Ricard released three Jacobs Creek red wines in September 2015 with “Barossa Signature” on the label.

In her judgment today, Natalie Charlesworth said the case came down to three questions: whether Pernod Ricard used the words “Barossa Signature” appropriately under the Trade Marks Act, whether it was deceptively similar to the Yalumba Trademark, and whether Pernod Ricard used the term “in good faith to indicate the kind, quality, intended purpose, geographical origin or some other characteristic”.

In the ruling itself, Charlesworth goes on to answer those three questions, though she stops herself after the second of them. She reasons that if Prenod Ricard used the words appropriately under the law, as she affirms, and that such use is not going to confuse the public into the origin of the product, as she also affirms, then the answer to the third question doesn't matter. She goes on to note the differences in trade dress and also notes that the trademarked term "The Signature" is devoid of origin-defining value. Therefore, the lawsuit is dismissed.

As is typical, the ultimate fault for all of this is upon whoever thought approving a trademark for a term like "signature" for an industry overflowing with "signature" labels was a good idea. The term is generic in identifying premier products within a brand. It's used all over the place. How this trademark application ever passed the smell test in Australia is beyond me.

Here we have more of the same… only with even higher fees and a government agency plainly uninterested in fulfilling a request.

Back in February, a nonprofit group called Reclaim the Records filed requests for Missouri birth and death listings from 1910 through 2015.

The California-based outfit describes itself as a “group of genealogists, historians, researchers, and open government advocates who are filing Freedom of Information requests to get public data released back into the public domain.”

The group sought the information under Missouri’s Sunshine Law. After more than four months, the Missouri Department of Health and Senior Services (DHSS) finally got back to Reclaim the Records with an estimate of what its request would cost.

A letter from the legal office of the department estimated the birth list would take the agency 23,376 hours to compile and the death list 11,688 hours. At $42.50 an hour, the tab came to an eye-popping $1.5 million.

Faced with a $1.5 million tab, Reclaim the Records went with the cheaper option: hiring a lawyer. Kansas City attorney Bernard Rhodes wrote a letter to the department suggesting it could handle this on a range-of-years basis (rather than the per-day search the DHSS proposed) for a presumably much lower cost. The letter resulted in savings of nearly 100%.

A few days after that, [DHSS General Counsel Nikki] Loethen emailed Rhodes and told him the department was revising the cost estimate down – to around $5,000, or a 99.7 percent decrease.

If this fee sounds reasonable, it's only in comparison to the $1.5 million the DHSS wanted earlier. What should be a simple search of existing digital records was being made needlessly complex and expensive by the DHSS. Rhodes suggested the department utilize a single search covering several years at a time, rather than the options the DHSS had proposed.

At that point, the DHSS decided it was no longer interested in working with Reclaim the Records.

A few days later, however, Loethen advised Rhodes that the department would refuse to provide the records altogether.

I guess this is Plan B. When Plan A -- make requesters an offer they can't refuse accept -- doesn't work out, the next move is generally summed up in two words: "Sue us."

Reclaim the Records has now joined countless other individuals and entities in suing the government to release records that rightfully belong to the public. And in Missouri, the DHSS's responses are pretty much just normal government business.

Reclaim the Records’ dispute with DHSS comes against the backdrop of a November report by Missouri State Auditor Nicole Galloway on local governments’ compliance with the Sunshine Law. Galloway’s office made public records requests of 326 randomly selected political subdivisions in the state, and more than a third failed to respond in a timely fashion and another 15.5 percent didn’t respond at all, the report found. Galloway estimated that 65.3 percent “would not fully comply with public record requests.”

“By failing to properly and timely respond to requests or denying requests unjustifiably, political subdivisions risk fines, lawsuits, and loss of credibility with their constituency,” the report stated.

Perhaps it's time for the state to come up with a new slogan. The "Show Me" state isn't showing much. And it's charging some every excessive admission.

What makes this all worse is Reclaim the Records knows the records request could be fulfilled very easily. The same data the nonprofit is requesting is already available. The state sells this data to third parties but won't turn them over to a public records requester. Unlike several states, Missouri doesn't make this data openly available by publishing it online. It locks it up and charges for access, and one imagines the $1.5 million it asked Reclaim the Records for is far higher than it would have charged if the nonprofit had simply asked to buy it.

In 2013 he launched another defamation action against Google, and the internet company responded by applying to the Supreme Court to have the proceedings set aside because, it argued, his case had no real prospect of success. A judge dismissed Google's application.

But Google appealed against that ruling, and the Victorian Court of Appeal ruled on Tuesday in Google's favour when it set aside Mr Trkulja's application.

The Court of Appeal found Google was not the primary publisher of the images and could not be found responsible for the results of online searches, which were produced automatically.

The search results were also incapable of being found defamatory of Mr Trkulja, the appeal court ruled.