I'll forgive you if you haven't spent a lot of time thinking about Chia Pets lately. This is, after all, 2020 and not the 90s and we a couple of things going on that have probably held your attention. If you're so young that you don't remember these things, they're essential potted plants shaped like a variety of animals, objects, and celebrities, laden with grass seeds that grow and look like hair and oh my god why is this a thing? Regardless, the product, first developed in the 70s, became popularized in the 90s and was advertised with a well-known jingle: ch-ch-ch-Chia! While Chia Pets are still sold today, they are no longer the cultural icon that they were in these earlier times.

And yet, for some reason, it was only this past week that the folks behind Chia Pets decided to try to trademark that famous jingle.

Standard Character Claim: No

Mark Drawing Type: 6 - NO DRAWING-SENSORY MARK

Description of the Mark: The mark consists of the sung words CH CH CH CHIA in the notes E4, E4, E4, A4, G4.

Now, while that trademark description does indeed look decidedly silly, it certainly is possible to trademark sounds and jingles. The bar for trademarking sounds is a bit higher than other marks, mostly centering on the public's association with a sensory mark and a product, but Chia Pets' jingle probably fits the bill.

This means that sound marks – just like visual trademarks – may be easily registered when they are:

“arbitrary, unique or distinctive and can be used in a manner so as to attach to the mind of the liste­ner and be awakened on later hearing in a way that would indicate for the listener that a particular product or service was coming from a particular, even if anonymous, source.”

It's worth noting that any jingle like the above would also be immediately covered by copyright protection upon creation. That's one of the many factors that has me wondering why in the world this trademark had to be applied for in 2020. Add to that the waning notoriety of Chia Pets and its jingle generally, along with my having never heard of anything remotely like any competitors in the "Clay planters for flowers and plants" industry trying to use the jingle, and this all becomes all the more confusing.

Why, after fifty years in business and decades of using this jingle, does it need to suddenly be protected by trademark law?

Judge Jesse Furman clearly is not interested in copyright troll Richard Liebowitz's games any more. As you may recall, Furman put together that massive benchslap of Liebowitz last month, detailing the many, many, many times Liebowitz failed to follow court orders, and plenty of examples of where he appeared to lie to the court. Furman also included an appendix with an astounding list of 40 examples in other cases where Liebowitz had been found to similarly fail to follow court orders and/or lie to the court. The ruling concluded with Liebowitz being sanctioned a bit over $100k, but also with requirements that he send the order to all of his clients and every other judge handling a Liebowitz case.

Earlier this week, we wrote about Liebowitz (finally represented by other lawyers) trying to get those other sanctions removed (he paid the money, but doesn't want to have to tell others about this ruling). His lawyers took the bold strategy of saying that it would be unfair to Liebowitz's clients to have to inform them of what a terrible lawyer he is -- and tried to excuse all the sanctions and failed order following as a result of (1) inexperience and (2) a "unique" business model of filing way too many cases.

Judge Furman is, shall we say, not impressed. He took all of two days to issue a 14 page order that is basically an encore presentation to the original benchslap. The first paragraph sets the tone:

On June 26, 2020, the Court issued a fifty-four page Opinion and Order — familiarity with which is assumed — imposing a range of monetary and non-monetary sanctions on the oft-sanctioned Plaintiff’s counsel Richard Liebowitz and his firm, the Liebowitz Law Firm, PLLC.... The sanctions were based on three sets of detailed findings: first, that Mr. Liebowitz had violated “at least six of the Court’s Orders”; second, that he repeatedly lied to the Court, including under oath at a hearing, about whether he had been granted permission by a mediator (the “Mediator”) for his client to participate in a mediation session by telephone; and third, that he had failed to reasonably investigate whether the photograph at issue (the “Photograph”) had been registered with the Copyright Office (it hadn’t), both prior to filing suit and when put on notice about the issue during the litigation.... The Court found that the sanctions, several of which involve notifying other clients and courts about the Court’s Opinion and Order, were reasonably necessary to deter repetition of the misconduct given Mr. Liebowitz’s “long and ignominious history.” ... Mr. Liebowitz and his firm had thirty days to comply with several of the sanctions.... Two evenings ago — that is, twenty-four days after the Court’s decision and only four business days before the deadline — they filed a motion (styled as an order to show cause) asking the Court to stay those sanctions pending appeal.

You may sense that Furman is not happy about all this. He notes that there are four factors in determining whether or not a court should issue a stay regarding such sanctions pending an appeal: "(1) whether the stay applicant has made a strong showing that he is likely tosucceed on the merits; (2) whether the applicant will be irreparably injured absenta stay; (3) whether issuance of the stay will substantially injure the other partiesinterested in the proceeding; and (4) where the public interest lies." He then notes: "the Court finds that the Movants do not come close to carrying their heavy burden."

But Judge Furman is just getting warmed up:

The Court is tempted to leave things there and let its Opinion and Order, with its exhaustive findings and analysis, speak for itself. (Mr. Liebowitz’s shenanigans have surely consumed enough of this Court’s time and resources as it is.) But a few observations are in order, if only to aid the Circuit in the event that the Movants decide to now burden that court with having to decide on short notice whether a stay pending appeal is warranted.

Let's just say that if a judge says that about you in an order, the rest of the document is not going to go well for you. Judge Furman highlights, as we did, that any "harm" done to Liebowitz from having to share the sanctions order is not from the sanctions order, but from Liebowitz's own actions that resulted in the order:

For starters, the Movants’ claims of irreparable harm ring hollow for several reasons. First, the Movants’ principal claim is that the sanctions — which require service of the Court’s Opinion and Order on current and future clients and in current and future actions — will result in “severe and irreparable reputational and economic harm to their law practice.”... But any harm to Movants’ reputations resulting from the mere act of sharing the Court’s Opinion and Order is caused not by the sanctions themselves, but by growing awareness of Mr. Liebowitz’s own conduct and record, which are accurately recounted in the Court’s Opinion and Order. Notably, the Movants attack none of the history recounted in the Court’s Opinion and Order and few of the Court’s factual findings, and, as discussed below, their attacks on those findings are entirely unpersuasive.

And then he points out that the sanctions could have been worse, and that the court was actually somewhat restrained in how it chose to issue sanctions:

Significantly, the Court did not bar or even inhibit the Movants from filing any new action — though such sanctions have long been approved with respect to vexatious litigants.... Instead, its order merely requires the Movants to share information — that is, the Opinion and Order — with their clients and any courts in which they appear for a time, on the theory that they may be deterred from further misconduct by the knowledge that their clients and courts are likely to be more vigilant. Requiring a party to share truthful information — here, that this Court made certain findings and, on the basis of those findings, imposed sanctions on the Movants — does not constitute irreparable harm.

There's also a footnote crammed in there noting that Liebowitz was free to inform his clients that he disagreed with the court's findings and sanctions, or that he was planning to challenge them.

Second, to the extent that awareness of the Court’s Opinion and Order will cause the Movants’ reputational and economic harm, much of that harm has already occurred. As the old saying goes, the cat is out of the bag. The Court’s Opinion and Order is a public document and, due in no small part to Mr. Liebowitz’s well-deserved notoriety, it has already received fairly extensive publicity in the press and social media, particularly in the copyright world. Granting a stay would not undo any of that damage (which, needless to say, is ultimately attributable to Mr. Liebowitz’s own deplorable conduct rather than to the Court’s Opinion and Order itself). Put another way, the potential harm here is not irreparable; it is only marginal.

And here, there's a footnote citing much of the coverage about the original order (including our own post about it).

Judge Furman also notes Liebowitz waiting until the clock was about to run out before filing this request:

Finally, a court “must consider a plaintiff’s delay in seeking relief when analyzing whether the plaintiff will suffer irreparable harm in the absence of relief.”... That is because “inexcusable delay in filing” a motion to stay “severely undermines the . . . argument that absent a stay irreparable harm would result.” Hirschfeld v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir. 1993) (rebuking the Board of Elections for seeking a stay twenty-eight days after judgment was entered and only six days before election day). As noted, the Court gave the Movants thirty days in which to comply with the relevant sanctions or seek appropriate relief. Nevertheless, they waited until day twenty-four to seek a stay (at which point, no less, they proposed giving their adversary only three days in which to respond). Put simply, the Movants’ “delay, in itself, belies [their] conclusory assertions of irreparable harm” and “is enough to defeat [their] claim.”

By this point, it appears that Furman is still only getting warmed up. Because then he digs in on whether or not Liebowitz showed a likelihood of success on the merits, and the Judge would give that question a big, giant, humongous: "Nah." Let's just say, again, that this is not the kind of language you want to see in any order regarding an issue you're a party to:

Their first attack is on the Court’s factual findings about Mr. Liebowitz’s lies with respect to the Mediator and his knowledge that the Photograph in question was not registered prior to filing the Complaint. But reading their motion papers, one wonders if they even read the Court’s Opinion and Order. With respect to Mr. Liebowitz’s lies regarding the Mediator, the Movants do little more than cherry pick a single email that they argue (unpersuasively) is more “equivocal” than the Court acknowledged.... In doing so, however, they all but ignore the fact that the Court’s findings were based in large part on its credibility assessments, following a full-blown evidentiary hearing, of the Mediator’s and Mr. Liebowitz’s testimony.

Just a general suggestion should you ever be facing an angry judge: don't try to cherry pick statements out of context. It won't work. And a judge may come back with this:

Meanwhile, the Movants attack a straw man when they contend that the Court erred by finding that Mr. Liebowitz “initiated this action knowing the Photograph was unregistered.”... Put simply, that portion of the Court’s sanctions decision was not based on a finding that Mr. Liebowitz knew when the complaint was filed that the Photograph had not yet been registered; indeed, the Court acknowledged that Mr. Liebowitz may not have personally known about the lack of registration at the time of filing.... Instead, the Court faulted Mr. Liebowitz and his firm for their “inexcusable failure to conduct a reasonable investigation before and during the case.”... Moreover, the Movants conspicuously focus solely on Mr. Liebowitz’s knowledge when the Complaint was filed and say next to nothing about the Court’s findings and analysis with respect to his or the firm’s knowledge and conduct “during” the case. As the Court emphasized, however, whatever knowledge the Movants may have had before filing suit, they certainly knew or should have known about the untimely registration by November 2019, when defense counsel explicitly put them “on notice of what turns out to have been a fatal defect in the Complaint.”... At that point, if not before, the Movants had an “obligation to investigate,” yet they conducted “no investigation” whatsoever until ordered to do so months later by the Court.... To the contrary, Mr. Liebowitz affirmatively represented to the Court that the registration alleged in the Complaint was “the correct” one and resisted discovery on the issue.... Mr. Liebowitz did not admit, as the Movants do now, that he lacked independent knowledge of the registration, let alone acknowledge, as the Movants do now, that the allegation in the Complaint was false; had he done so, the Court and Defendant would have learned sooner that the case was fatally flawed from its inception.

How about the claims that the sanctions are "disproportionate." Again, that's not going to fly, especially when the cases they cited in support... say the opposite.

The Court is confident, however, that the record set forth in the Opinion and Order, taken as a whole, justifies the scope and severity of the chosen sanctions. Ironically, the cases that the Movants themselves cite make plain that the Court acted well within its authority in imposing the sanctions on a nationwide basis. See, e.g., Gallop v. Cheney, 667 F.3d 226, 230 (2d Cir. 2012) (requiring counsel to “provide notice of sanctions imposed upon him in this case . . . to any federal court” in the Circuit “before which he appears or seeks to appear” for “a period of one year from the entry of [the] order”); Enmon v. Prospect Capital Corp., 675 F.3d 138, 148 (2d Cir. 2012) (affirming the district court’s sanctions order requiring a firm’s lawyers to submit the order “with any pro hac vice applications in the Southern District of New York”).

There's also a fun footnote here:

In a footnote, the Movants suggest that the Court may have separately erred “in sanctioning Mr. Liebowitz and [his firm] for their conduct before other courts.” .... Putting aside the fact that a party may not raise an argument in a footnote, that argument is frivolous. The Court did not rely on the Movants’ “[v]iolations of orders in other litigation” as “the basis” of its decision to impose sanctions..... Instead, it took stock of Mr. Liebowitz’s “long and ignominious history” in evaluating what sanctions were necessary to deter further misconduct... The Court is not aware of, and the Movants do not cite, any authority for the extreme proposition that a court should blind itself to an attorney’s history of misconduct in crafting appropriate sanctions.

And then there's the kicker. Judge Furman basically says, "dude, I let you off pretty easy, all things considered, and you come back with this?!?"

Indeed, if anything, the Movants’ own cases suggest that the Court did not go as far as it could have, given that the sanctions are limited in time and do not limit their ability to file new cases, but merely require disclosure.... The Movants are undoubtedly correct in asserting that “nationwide sanctions” are rare... but that is only because they are rarely warranted. Here, they were, as the record makes clear that the Movants’ practice — and misconduct — has begun to spread to other districts. Given that record, limiting sanctions to this District (or this Circuit) would not have been adequate to deter repetition of the misconduct; the Movants could simply file suits elsewhere. That is, the Court’s sanctions ensure that, for at least a year, any courts in which the Movants are litigating are “alert” to Mr. Liebowitz’s “past activities so that they may take judicial notice of matters relevant to new litigation brought by him.”... Anything less would be insufficient to deter repetition of Mr. Liebowitz’s misconduct.

There's also a further note in a footnote questioning why Liebowitz is so insistent on filing cases in other districts... where his reputation has already been noted. And then adds in a dig about Liebowitz already admitting that he doesn't quite have a handle on how to manage all these lawsuits he keeps filing:

The Movants may have expanded the geographic scope of their practice in order to file more cases and make more money. Or they may have done so in an effort to escape Mr. Liebowitz’s well-earned reputation as a problem in this District. (Not surprisingly, Mr. Liebowitz’s reputation seems to have either preceded him or to be catching up with him. See, e.g., In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 17, at 1-2 (N.D. Cal. June 12, 2020) (noting that Mr. Liebowitz’s “unprofessional and blameworthy conduct” is “consistent with the extensive public record of discipline he has amassed in courts across the United States”); Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *14 (D. Colo. May 11, 2020) (“Mr. Liebowitz’s continued practice of law represents a clear and present danger to the fair and efficient administration of justice . . . .”).) Either way, the decision to expand the firm’s practice is a strange one given Mr. Liebowitz’s own acknowledgment that his business management practices are “not [the] best” and that “things need to change.”

Then there's the claim that Liebowitz made that requiring him to file a deposit copy of the copyright registration was somehow unduly burdensome. Remember, part of the problem in this case was that Liebowitz had claimed this photograph was registered, but it was not, and he had provided the registration number of a different work. So this sanction was to make sure that Liebowitz was actually doing the bare minimum required under the law -- which Liebowitz argued is somehow unfair and takes away the rights of his clients. But, as Judge Furman notes, that's not how any of this works:

Finally, the Movants assert in passing that, by requiring the Movants to file a deposit copy of a copyright registration upon the initiation of an action, the Court impermissibly “alter[ed] the statutory presumption of validity in copyright cases.” ... Not so. The statute at issue provides only that “[p]ossession of a registration certificate creates a rebuttable presumption that the work in question” — that is, the work covered by the certificate — “is copyrightable”.... That presumption, however, is not even remotely implicated by the Court’s sanction requiring the Movants to verify and confirm that any work at issue in a new lawsuit is actually registered — which, after all, is a statutory condition precedent to even filing a copyright claim.... Moreover, the Movants’ argument falls flat for another reason: The sanction was imposed on them, based on their history of failing to investigate the evidentiary basis of their own pleadings, not on their current or future clients. That is, although violation of the sanction would subject the Movants to contempt in this Court, it would not in any way (at least absent independent action by the court presiding over the new action) affect the substantive rights of the Movants’ clients themselves.

Also, the claim that it would be too costly for Liebowitz to obtain the deposit copies from the Copyright Office? That's so silly that Furman responds to it in a footnote:

On a related note, the Movants complain that the costs and delays involved in obtaining deposit copies of copyrighted works from the Copyright Office will reduce their clients’ recoveries and may result in statute-of-limitations problems.... The Court’s sanction may reduce some recoveries (although one would think that Mr. Liebowitz would absorb the difference rather than passing the costs on to his clients), but there are reasons to think the Movants overstate the potential impact. By Mr. Liebowitz’s own admission, he settles cases “in the low thousands or tens of thousands of dollars,”... a far cry from the $200 to $1,200 cost of obtaining a deposit copy.... Moreover, the sanction could serve to reduce the Movants’ overall expenses, given the substantial monetary sanctions that Mr. Liebowitz routinely incurs. Indeed, this is at least the third time that he and his clients have been made to pay approximately $100,000 due to his misconduct.... In any event, the costs are the price of the Movants’ misconduct and, for reasons already stated, they are necessary to deter and prevent future misconduct.

He also (in the same footnote) rejects the claim that having to get the deposit copy will create unnecessary delay, since you have three years to file a copyright infringement lawsuit, but does agree to modify the agreement just to clarify that point:

That said, to ensure that the Court’s sanction does not unintentionally harm a client through no fault of his or her own, the Court modifies the sanction (Sanction 6) to include the following proviso: In any case in which the Movants have a good-faith belief that waiting for deposit copies might cause their client’s claim to be barred by the statute of limitations, they may file, in lieu of the deposit copies, an affidavit (1) informing the court of such good-faith belief; (2) confirming that they have applied for, and are awaiting, deposit copies of the work(s) at issue; and (3) representing that they will promptly file such copies promptly upon their receipt.

Then there's the public interest question regarding the sanctions. Liebowitz claims they're not in the public interest. Take a wild, wild guess where the court came down on that. You may be a psychic, because I'm pretty sure you got this one right:

In the Court’s view, there is a strong public interest in shining a bright light on Mr. Liebowitz’s extraordinary record of misconduct and in ensuring that both courts and his clients, current and future, are aware of that history so that they can be vigilant in scrutinizing Mr. Liebowitz’s conduct....

Against that strong public interest, the Movants cite the “interest in the continuation of [their] law practice” because they have carved out “a successful law practice that provides a realistic prospect of recovery to copyright plaintiffs in relatively low-dollar infringement cases that otherwise could go unfiled.”... But the sanctions do not bar the Movants from “continu[ing their] law practice,” and Movants’ conclusory assertion that such cases would not be filed without them is unsubstantiated. (Moreover, to the extent that the Movants’ success is built on unsavory business practices or conduct unbecoming an officer of the court, it is, of course, not at all in the public interest for it to be perpetuated.) Nor do the Court’s sanctions deprive photographers of the opportunity to hire Mr. Leibowitz or his firm to bring suit. The sanctions merely ensure that such photographers do so with their eyes wide open, cognizant of the fact that they could be left holding the bag on a hefty attorney’s fee or sanctions award, see, e.g., Rock, 2020 WL 468904, at *2 (ordering Mr. Liebowitz’s client to pay the defendant’s attorney’s fees over $100,000), and of Mr. Liebowitz’s tendency to cut and run, perhaps sacrificing their interests in the process, when he feels that the heat is on him personally, see Usherson, 2020 WL 3483661, at *1. In short, insofar as the sanctions provide Mr. Liebowitz’s clients and courts with more information about his past, it is in the public interest for them to go into effect now, while the Grievance Committee ponders Mr. Liebowitz’s fate longer term.

In short: don't try to play games with a federal judge.

Bringing it all around:

In sum, the Movants’ eleventh-hour request for a stay of the Court’s sanctions pending appeal is denied and the Court’s sanctions remain in full force and effect....

Nor will the Court grant the Movants’ alternative request for an “administrative” stay pending the Circuit’s decision on whether to grant a stay pending appeal.... Granting an administrative stay would obviously ease the burden on the Circuit in the event that it is called upon to decide if a longer stay is warranted. In the Court’s view, however, that virtue is outweighed by the vice of rewarding an appellant for dilatory conduct. Deadlines matter. And having given Mr. Liebowitz and his firm sufficient time to either comply or seek a stay, the Court should not be forced to alter its deadline merely because they waited until the last minute to do the latter. Instead, in the event of an appeal from this Order, the Court will leave it to Mr. Liebowitz and his firm to explain to the Circuit why they put that court in the position of deciding whether to grant a stay with only a few days remaining on the clock.

It's pretty crazy that Liebowitz always seems to know when to cut and run when he's put his own clients into an untenable position, but when his own ass is on the line, he has a history of digging deeper. I assume this one is not over yet.

Last fall we wrote about the unfortunate situation happening with privacy laws in California. As you may know, California has a new privacy law that recently went into effect. And even though we're big supporters of privacy here at Techdirt, we've noted that the CCPA law is and remains an unmitigated disaster. Much of that has to do with the way it came together. A wealthy real estate developer, Alastair Mactaggart, with little to no understanding of how the internet actually works, spent millions of dollars to get a "consumer privacy" ballot measure on the ballot in 2018. But it was incredibly dangerous and confused. Mactaggart, though, cut a deal: if the California legislation agreed to a privacy law, he would drop the ballot measure. So, the California legislature rushed through a very under-cooked privacy bill, that was written in just a couple of weeks, in order to get Mactaggart to drop his much, much worse ballot measure.

And that's how we ended up with such a half-baked law. Except, last fall, Mactaggart decided to go back on his word, and said that even though the legislature pushed through the already problematic CCPA to get him to stop his ballot measure, he was going to push for another similar ballot on consumer privacy. For a little while, it looked like he might not get the ballot measure on the ballot, but he did, and now it will be up for a vote in November.

And here's the thing: as with many ballot measures in California, most voters don't understand the nuances and details of what they're voting for, and your average voter, upon seeing a ballot measure that says it will "expand the state's consumer privacy laws" is likely to vote yes, because that sounds good. Privacy is good, and so privacy laws sound good. But only if you don't know what the initiative actually does: which would be a huge disaster for actual privacy.

We were actually a bit disappointed last time around that some of the civil society groups we normally support came out in strong support of the CCPA, but this time around, it looks like many are recognizing just how dangerous Mactaggart's plan is for actual privacy. The various ACLU subsidiaries in California have now come out strongly against the ballot measure, known as Proposition 24, making the argument that it "benefits big tech and corporate interests, and will disproportionately harm vulnerable communities." As the ACLU notes, the proposition would put the burden on individuals themselves to fill out forms to "protect their privacy." As the ACLU's Jake Snow says: "Proposition 24 isn't privacy protection, it's privacy paperwork."

Also, there's this:

This is the kind of proposition that someone like Mactaggart would love. It lets him pretend that he's actually a champion of privacy, while actually helping some of the biggest businesses who regularly violate our privacy.

The ACLU announcement mentions a bunch of other civil society groups also coming out against Proposition 24 as well, including Public Citizen and Color of Change. That's good to see and hopefully the message gets out there: this is no way to craft privacy legislation -- especially considering that it's coming from a rich dude who literally went back on his word mere months after promising to drop his ballot initiative in exchange for a poorly written law.

Earlier this year, Techdirt reported on an extremely serious development in the world of Japanese copyright, with a new law that will make copyright infringement a criminal offense. Now the country's Supreme Court has issued a ruling that will make using Twitter in Japan more of a risk, legally speaking. The case concerns a photo of a flower, originally posted on a web site in 2009, with the photographer's name and copyright notice. As often happens, the photo was then tweeted without the photographer's consent, and was further retweeted. The problem is that Twitter uses "smart auto-cropping" of images, with the aim of focusing on "salient" regions, and thus increasing the likelihood of someone looking at and engaging with the tweet. Twitter's auto-cropped version of the photo did not include the photographer's name or copyright notice.

As TorrentFreak explains, the photographer was not happy with these tweets and the trimmed versions of his image, even though the original photo showed up if viewers of the retweets clicked on the cut-down photo. He took legal action, and the Tokyo District Court found that the original posting of the flower had indeed infringed the photographer's copyright, but dismissed the photographer's demand for the identities of the people who re-tweeted the image. The photographer then took his case to the High Court division dealing with copyright matters in Japan. It agreed there had been a breach of copyright, and found also that the people posting the cropped image on Twitter had violated the photographer's moral rights because his name had been removed. As a result, the Japanese High Court ordered Twitter to hand over the email addresses of all those who had posted the image.

Twitter appealed to Japan's Supreme Court, arguing that the cropping of the images was automated, and therefore not under the control of users. According to TorrentFreak, the company warned that a judgment blaming Twitter's users could have a chilling effect on the platform in Japan. Nonetheless:

In a decision handed down yesterday, the Supreme Court ordered Twitter to hand over the email addresses of the three retweeters after finding that the photographer's rights were indeed infringed when Twitter's cropping tool removed his identifying information.

Four out of five judges on the bench sided with the photographer, with Justice Hayashi dissenting. He argued that ruling in favor of the plaintiff would put Twitter users in the position of having to verify every piece of content was non-infringing before retweeting. The other judges said that despite these problems, the law must be upheld as it is for content published on other platforms.

It's not clear what the photographer intends to do with the email addresses, but the larger problem is that the ruling makes retweeting images on Twitter much more of a legal risk for the service's 45 million users in Japan. Taken together with the earlier criminalization of copyright infringement, this latest move is likely to discourage people in Japan from precisely the kind of creativity the Internet has helped to unleash. Japan will be culturally poorer as a result -- just as the EU will be, thanks to the unworkable upload filters that are about to be introduced. And all because copyright fanatics seem to think their concerns must take precedence over everything else.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

I wasn't expecting this, but this morning Judge Alvin Hellerstein ordered Michael Cohen released from prison, saying that the Bureau of Prisons violated his 1st Amendment rights. If you haven't been following this story beyond the fact that Cohen was sent to prison last year for tax evasion and campaign finance violations, what you need to know is that (following his request for such), Cohen was furloughed from prison to home confinement in May, as the prison system tried to lessen the number of people in prison during the pandemic. A little over a month later, he was returned to prison. While there were reports it had to do with the fact that he was seen eating out, it turned out to be because he refused to sign an agreement saying he would not speak to the media in any form, including saying he could not publish the "tell-all" book he is supposedly writing.

In a bit of role reversal, Cohen -- who had been President Trump's legal asshole threatening people who criticized the President in the past -- received a threat letter from the President's new threatdog, Charles Harder, warning him not to publish the book.

While there was some belief that Cohen's lawsuit claiming that being sent back to prison was retaliatory against his speech wouldn't get very far, given that the Bureau of Prisons is given wide leeway in how they handle those who they have within their custody, Judge Hellerstein surprised many and recognized the obvious:

“How can I take any other inference than that it’s retaliatory?” Hellerstein asked prosecutors, who insisted in court papers and again Thursday that Probation Department officers did not know about the book when they wrote a provision of home confinement that severely restricted Cohen’s public communications.

“I’ve never seen such a clause in 21 years of being a judge and sentencing people and looking at terms of supervised release,” the judge said. “Why would the Bureau of Prisons ask for something like this ... unless there was a retaliatory purpose?”

In ruling, Hellerstein said he made the “finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory.” He added: “And it’s retaliatory for his desire to exercise his First Amendment rights to publish the book.”

This is a good, 1st Amendment supportive ruling, though I do wonder if it would have come out the same way if it weren't for the high profile nature of Cohen and the president. The prison system, quite frequently, retaliates against prisoners for their speech, but it would be nice if that would start to change. Unfortunately, this will probably be a one off situation, rather than anything leading to real change.

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Earlier this month, the DOJ announced the launch of "Operation Legend." The operation -- named after four-year-old homicide victim LeGend Taliferro -- targeted cities experiencing spikes in violent crimes, including Kansas City, Missouri, where Taliferro was killed.

Cities may not have been asking for federal interference in their law enforcement efforts, but "help" was on the way, nonetheless.

“President Trump has made clear: the federal government stands ready and willing to assist any of our state and local law enforcement partners across the nation responding to violent crime. Operation Legend will combine federal and local resources to combat the disturbing uptick in violence by surging federal agents and other federal assets into cities like Kansas City, a city currently experiencing its worst homicide rate in its history,” said Attorney General Barr.

The first recipient of the "surge" was Kansas City. And the operation has been more successful than anyone could have imagined.

Attorney General William Barr said Wednesday that 200 arrests had been made in a new federal operation launched in Kansas City.

“Just to give you an idea of what’s possible, the FBI went in very strong into Kansas City and within two weeks we’ve had 200 arrests,” Barr said of the operation, which is sending more than 200 federal agents into the metro area.

Truly remarkable numbers. According to the DOJ, 225 federal agents from the FBI, DEA, ATF, and US Marshals Service had been added to the mix in Kansas City. In just four days, the feds are well on the way to ending violent crime in the city. And they weren't even stepping on local toes to do it:

“These agents won’t be patrolling the streets,” [US Attorney Tim Garrison] said. “They won’t replace or usurp the authority of local officers.”

So, how were the feds racking up 50 federal arrests per day? The answer is: they weren't. In fact, Operation Legend has only resulted in one arrest in four days. A DOJ official cleared up Barr's self-congratulatory statement after no one could find any evidence these 200 arrests had taken place.

The official said Barr was referring to the number of arrests made in the city since the launch of Operation Relentless Pursuit, a precursor effort to Operation Legend that surged federal agents in U.S. cities facing crime waves, including Kansas City.

“We have made since December 2019 200 arrests in Kansas City,” the senior official said, referring to the launch of that initial operation. “Legend is essentially a continuation of that.”

Ah. "Essentially a continuation." I see. Whatever it takes to make sure the top man doesn't sound like a fuck up.

But all schadenfreude aside, there's a problem here. The DOJ's new task forces -- blends of federal officers and agents inserted into cities to make street-level busts -- just isn't a good idea.

The DOJ's response to ongoing protests has been, for the most part, horrifying. It's been officers in camo -- looking for all the world like a branch of the military -- rolling out of unmarked vehicles to grab citizens and haul them away to unknown destinations for questioning. And this scary shit is being deployed for the limited purpose of protecting federal property. Like courthouses. And… um… statues.

This surge may be targeting criminal activity occurring nowhere near the sites of ongoing protests, but that won't make the disappearing of suspects any more acceptable if these agencies continue to operate from unmarked vehicles and roll up on citizens wearing fatigues that don't make it clear who they are or what agency they represent. Even separated from the First Amendment context of the protests, tactics like these aren't what we want from our federal government. Suspected criminals still have rights and a "surge" of officers who appear to feel those are privileges is only going to make the current antipathy towards law enforcement even worse.

Earlier this month, we noted that Charter (Spectrum) had been lobbying the FCC to eliminate conditions affixed to its 2015 merger with Time Warner Cable. As part of those conditions Charter had to not only adhere to basic net neutrality (regardless of the fact that lobbyists had already killed FCC net neutrality rules), but it was also prohibited from imposing arbitrary, bullshit usage caps and overage fees, or engaging in the kind of "interconnection" shenanigans that caused Netflix streams to slow for Verizon customers earlier this decade. It also had to expand broadband coverage, which it failed utterly at.

Most of the conditions are fairly minor, expire in another few years anyway, and by and large protect consumers from the kind of behaviors cable and broadband monopolies are known for. As Charter lobbies the government, it's employing some... strange bedfellows in its quest to kill the conditions. In New York that apparently includes the Niagara Falls Boys and Girls Club, which wrote a letter to the FCC urging the regulator to prematurely axe the conditions:

Most of the time this kind of undocumented quid pro quo (we'll donate to a new event center if you support deregulation or our latest merger) simply involves making a few filings to the FCC that the broader public never sees (and the press never covers because this sort of thing doesn't exactly drive ad eyeballs). But the efforts still routinely undermine the constituents these groups are supposed to be representing, and groups should at least take the time to understand the positions they're taking before wading into the fray.

A couple of years ago, investigators in California used a DNA matching service to track down the so-called "Golden State Killer." Uploading a sample of the suspected serial murder's DNA, they were able to identify distant relatives of the suspect. Using these sentient clues, investigators eventually worked their way back to the suspected killer, who had eluded authorities for years.

Shortly after this made news, GEDmatch informed users that law enforcement had never approached the company directly to acquire this information. Instead, investigators created an account and uploaded samples, bypassing anything GEDmatch might have had in place to limit use by government agencies. GEDmatch said the only way customers could ensure their DNA info wouldn't be obtained by law enforcement was to not use the service at all.

A month later, it went a step further. It opted all users out of allowing law enforcement to access their DNA data. Users were allowed to opt in if they were comfortable with the government digging through their information. This somewhat solved the problem. But law enforcement has been known to create faux profiles to search DNA data, so opting out isn't guaranteed to stop cops from accessing this info.

Unfortunately, something recently went very wrong with GEDmatch's database.

[U]sers reported Sunday that those settings had changed without their permission, and that their DNA profiles were made available to law enforcement searches.

Users called it a “privacy breach.” But when reached, the company’s owner declined to say if the issue was caused by an error or a security breach, citing an ongoing investigation.

This incident/error opted everyone in to law enforcement access. The company still isn't sure what happened. The statement issued by the CEO says the problem is "resolved" but the company has taken the site offline until it can determine what actually happened.

The site is still down as of the time of writing (July 20th). GEDmatch hasn't offered any further statement on the matter, either. It also has refused to say whether any law enforcement requests to the service were received or responded to while everyone was temporarily opted in.

The larger problem remains, however. GEDmatch's default is opt out, which is best for its users. But it's unclear whether GEDmatch polices its service for bogus accounts possibly be used by… well, police. GEDmatch only requires an email address for registration. It says you must link a "real name" to uploaded DNA data but nothing in its terms of service indicates this name must be verified before the site can be searched for matches. This means opting out is only as good as the law enforcement agencies using the service. If they can't be trusted then GEDmatch probably can't be trusted either.