Remember Wordle? I sure do and one of the ways I start my days at work is to pull up the site and give it a quick play. But I honestly may just need to stop, given the behavior of the current owners of the game.

For this discussion, you really do need to recall that Wordle began as a free to play, simple daily game that became a quick craze nationally. It was created by one person, Josh Wardle, who made absolutely clear at the time that he had no interest in wrapping anything like intellectual property around the game. And when others did create spinoffs or clones of the game, he handled it in roughly as congenial a manner possible.

But then he sold the game to the New York Times. And the Times promptly began to strongarm these spinoffs and clones into shutting down, wielding IP threats to do so. That was 2 years ago and the craze around Wordle has certainly died down. Has the New York Times’ bullying declined as well?

Absolutely not! The New York Times recently DMCAd several of these sorts of Wordle clones over recent days (which was first reported on by 404 Media).

Two takedown requests were issued in January against unofficial Korean and Bosnian-language versions of the game. Additional requests were filed this week against Wirdle — a variant created by dialect group I Hear Dee in 2022 to promote the Shaetlan language — and Reactle, an open-source Wordle clone built using React, TypeScript, and Tailwind. It was developed prior to the Times’ purchase of the game, according to its developer, Chase Wackerfuss.

The Reactle code has been copied around 1,900 times, according to GitHub, allowing developers to build upon it to create a wide variety of Wordle-inspired games that use different languages, themes, and visual styles, some of which 404 Media says are “substantially different” from Wordle. The DMCA notice against Reactle also targets all of these games forked from the original Reactle code on GitHub, alleging that spinoffs containing the Wordle name have been made in “bad faith” and that “gameplay is copied exactly” in the Reactle repository. Numerous developers commenting on a Hacker News thread also claim to have been targeted with DMCA takedowns.

This is silly. The Times has an advantage over all of these other clones, because it has the first version of the game. When people go to play Wordle, the vast majority of them are going to find themselves on the NYT website. A bunch of hobbyists accessing a clone a thousand times just isn’t going to represent some enormous threat to the Times.

And, hell, Wordle itself is very similar to a game created in the 50’s that was played on paper, as well as a game show called Lingo. And, ultimately, the game is also essentially a vocabulary version of the board game Mastermind.

Meaning what, exactly? Well, meaning that it’s quite rich for the New York Times to go around shutting down similar or derivative games simply because it bought, but did not create, the Wordle IP that its creator never wanted to see wielded in this way. And, in large part, over “gameplay mechanics” that the game essentially lifted from a game show from several decades ago.

Amusingly, Wordle has itself been criticized over striking similarities it shares with Lingo, a 1980s game show that centered on players guessing five-letter words, with a grid that changes color based on accuracy.

Unfortunately these are all small entities that the NYT is bullying here and most if not all of them have declined to fight back so far. Here’s hoping there’s at least one of them out there that wants to step up and push back on these DMCA notices.

Just imagine how petty and vindictive you have to be to change someone with murder just because they weren’t arrested easily. Imagine how self-centered you have to be to present someone as an assailant just because they were unable to comprehend your instructions. Imagine just how inhumane you have to be to present a false narrative about a weapon wielded against officers just so you can charge a migrant with no English skills with aggravated murder, just because an officer died of natural causes after being involved with this arrest.

That’s what happened to Virgilio Mendez. Mendez, a native of Guatemala, was standing near a hotel room (where he was staying with other migrants employed in the area) when he was accosted by St. Johns County officer Michael Kunovich.

Dispatch had alerted officers to a “suspicious Hispanic male,” a vague description that allowed Kunovich (and other officers who arrived later) to justify their violent actions. Mendez did not speak English or Spanish. Instead, he spoke Mam, a derivative of the Mayan dialect spoken by a half-million Guatemalans.

It took a bit of time to subdue Mendez, someone who likely had no idea what was happening or why this was happening to him. Shouted instructions in English and Spanish did nothing to clarify what was happening. He was thrown to the ground. Although he continued to struggle, Mendez — at 5’4″ and 115 lbs. — was easily outclassed by his law enforcement opponents. In addition, he was tased six times in a little over 120 seconds.

This was all caught on (body) camera by Sergeant Kunovich. The post-arrest narrative presented by the sheriff’s office claimed Mendez “pulled a knife” on the officers. The recording makes it clear this never happened. Following the struggle, Kunovich began experiencing pain and shortness of breath. He was rushed to a hospital and expired shortly thereafter.

The coroner’s report makes it clear this was not a result of anything Mendez did. (And, indeed, the video shows Kunovich removed himself from the struggle long before it was over.)

“These cardiac changes, while recent, predate the struggle with the subject,” the report said. “The circumstances do not fully meet the criteria for a homicide manner of death.”

The coroner said no homicide. The St. John’s Sheriffs Office (along with the local prosecutor) said something else entirely:

[T]he St. John’s County Sheriff’s Office and the Office of the State Attorney for the 7th Judicial Circuit of Florida charged Aguilar Méndez with aggravated murder, which is punishable by life in prison.

For the moment, that’s how it went for Mendez. His lawyer told the court Mendez shouldn’t be charged with this and noted that he possibly couldn’t even be tried for this, due to his inability to understand commonly-used languages like English or Spanish, not to mention his unfamiliarity with the US legal system.

The court agreed at first, although that did not result in the release of Mendez, who was held without bail for eight months, despite being found incompetent to stand trial.

After having Mendez held even longer while taking time to “mull the complicated issues,” prosecutors have decided to dismiss the charges against Mendez.

The St. Johns County Sheriff’s Office said in a statement that the charges against Aguilar Mendez were dismissed “based on concerns about the intellectual capacity of Vergilio Aguilar Mendez and the recent ruling finding him to be incompetent.”

Not that Mendez is free to go. The same article notes Mendez is still detained while he awaits the outcome of deportation proceedings initiated by the federal government.

This dismissal is welcome. So is the statement issued by Mendez’s attorney, Jose Baez, who went after the sheriff’s office for its abuse of the justice process to bring these charges against someone who had the misfortune of interacting with officers employed by the sheriff.

“Culture that starts and ends with the sheriff, who not only doubled down and tripled down by creating a false narrative that this young man, who came in at 17, was someone who failed to follow instructions,” Baez said in a press conference following Aguilar Mendez’s dismissal.

“He says if he only followed instructions Kunovich would still be alive,” Baez said. “I want to one day see him comply to orders given to him in Mam or Spanish and I would guarantee you that he would not comply. Then claim Vergilio Aguilar Mendez was going to use a knife, knowing that was a lie,” Baez said.

He’s not wrong. Law enforcement officers routinely claim failure to comply with orders is a criminal act — something that often happens when subjects don’t understand the language being spoke or (as is equally often the case) when officers shout contradictory orders simultaneously, forcing arrestees to ignore at least one officer’s orders so they can comply with another officer’s shouted commands, thus giving all officers on the scene permission to start brutalizing the arrestee.

This last minute dismissal was likely provoked by Mendez’s civil rights lawsuit, which was filed less than 10 days before the charges were dropped. But, as anyone browsing American jurisprudence can tell you, dropping charges doesn’t make rights violations disappear. Trying to moot the case by pressing eject on prosecution isn’t the “EASY” button the St. James government appears to think it is.

Finally, there’s this defensive statement by the St. John’s Sheriff’s Office, which tries to cover itself in the reflected glory of a dead officer by (once again) invoking things that didn’t happen as a defense for its own actions.

“There have been attempts by some to portray Aguilar Mendez as a victim and vilify Sergeant Kunovich. I continue to stand behind Sergeant Kunovich’s actions on the night of May 19, 2023,” St. Johns County Sheriff Rob Hardwick said in a statement. “The danger associated with law enforcement is a risk we assume when we enter this profession. Sergeant Kunovich died a hero protecting the citizens of St. Johns County and there is nothing more noble than that. Please continue to hold our agency and Sergeant Kunovich’s family in your thoughts and prayers.”

Let’s be perfectly fucking clear, Sheriff Rob Hardwick, since it’s been clear from the start you and your office are willing to be deliberately obtuse when not actively lying about what happened in this case. No one “vilified” the dead officer. They vilified your department and local prosecutors for deciding to charge someone just because an officer happened to die (but probably not a “hero”) shortly after affecting an arrest. He was dead. He had zero say in the determination of criminal charges.

Sheriff, your willingness to transfer your own vilification to the corpse of your former employee speaks volumes about your willingness to take responsibility for your own actions or the actions of your officers. And what it says it that you will pass the buck the moment it crosses you desk while taking credit for anything these officers achieve with or without your (lol) leadership. Get fucked, buddy. You suck.

Last fall, we wrote about Yelp going to court in California to try to block Texas’s indicted and facing trial shortly Attorney General Ken Paxton from suing the company for using its speech to accurately warn users that “Crisis Pregnancy Centers” do not generally offer any actual medical care.

As you may know, anti-abortion advocates have opened up so-called “crisis pregnancy centers,” which are designed to look like medical facilities to help pregnant mothers consider their options. Many people are pointed to these crisis centers instead, when searching for potential abortion providers. The centers pretend to be a neutral advocate to help them consider their options, while in reality they are designed to steer expectant mothers away from abortion.

Yelp, quite reasonably, decided to use its own First Amendment rights to provide some more info about those crisis pregnancy centers to better inform potential visitors. It posted notices on crisis pregnancy centers saying: “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers typically provide limited medical services and may not have licensed medical professionals onsite.”

Ken Paxton, who cosplays as a “free speech” supporter on the internet, wrote a letter to Yelp threatening to sue them for this speech. In response, Yelp changed the message to be even more accurate, but Paxton was still upset with their speech, which now said “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers do not offer abortions or referrals to abortion providers.” This is accurate speech, which even Paxton admits is accurate. He just doesn’t like it.

After Texas threatened to sue Yelp once again, Yelp went to court first in a California federal court to get Paxton to shut up and to stop interfering with the company’s free speech rights. Paxton responded by suing Yelp in a Texas state court. Unfortunately, the court in California “reluctantly” rejected the lawsuit due to “Younger abstention,” which basically says a federal court doesn’t have jurisdiction over a case while a state court is considering the same matter. Yelp has appealed to the 9th Circuit.

In the meantime, though, last week, the Texas state court tossed out Paxton’s lawsuit. There’s not much to go on in the order, as it basically just says “we agree with Yelp’s special appearance” in this case.

Having considered Defendant Yelp Inc.’s (“Yelp”) Verified Special Appearance (“Special Appearance”), the responses, and the replies, if any, the Court finds that the Special Appearance should be GRANTED.

You can look at the “Special Appearance” by Yelp which lays out the main reasons the case should be dismissed, with the big one being the court’s lack of personal jurisdiction over Yelp:

This case involves a misguided lawsuit by the State of Texas (“State”) against Yelp, a California-based website operator with no offices in Texas, for allegedly violating the Texas Deceptive Trade Practices Act (“DTPA”) by posting a truthful consumer notice about crisis pregnancy centers on its nationwide website. In the Petition, the State does not allege that Yelp is “at home” in Texas, that the consumer notice was purposely directed at Texas, or that the DTPA claim arises from or relates to Yelp’s contacts with Texas. Instead, the State admits that Yelp is located in San Francisco, California, alleges that Yelp “targeted pregnancy resources centers nationwide,” and concedes that the DTPA claim arises out of a notice posted, from California, on the Yelp business pages of “every pregnancy resource center across the nation,” not merely those in Texas.

Yelp files this Special Appearance because the Petition should be dismissed for lack of personal jurisdiction for many reasons. Yelp, a nonresident of Texas, lacks sufficient minimum contacts with Texas to demonstrate purposeful availment, the DTPA claim does not arise from or relate to Yelp’s contacts with Texas, and the exercise of jurisdiction over Yelp would offend traditional notions of fair play and substantial justice. Yelp should not be haled across the country into a foreign jurisdiction to respond to a baseless claim premised on conduct that occurred exclusively in California.

So, it sure sounds like the Texas court tossed the case out on jurisdictional grounds, without even needing to get to the ridiculousness of Texas trying to sue a company over its accurate speech. The case in front of the 9th Circuit remains in play, though I’m not sure how this latest situation will play into that. If the Texas case is now dead (though, I guess Texas could appeal), then the Younger abstention issue should be moot?

Either way, it’s yet another example (one of so many) of Texas showing off its unconstitutional, censorial tendencies — in a state with leadership who claims to be supportive of free speech.

Say what you will about the general politeness of Canadians and the genteel nature of their secondhand Britishness, but never forget their cops can be just as petty and vindictive as our cops.

Law enforcement entities everywhere have a massive sense of entitlement. Officers and officials tend to think that people should comply with whatever they say, never question any assertions they make, and give them whatever they ask for without providing the proper paperwork.

The fact is that people aren’t obliged to give cops things they’re only supposed to be able to obtain with warrants. Voluntary consent eliminates this obligation, and that’s fine as long as it’s actual informed consent.

But cops tend to get all shitty when they’re unable to obtain stuff without warrants. Rejected requests for consent are often treated as inherently suspicious. Reluctance to cooperate (without the existence of court orders compelling more) is viewed as obstruction and, sometimes, results in criminal charges (or at least an arrest) even when the person being badgered by cops is completely in the right.

This report of a Canadian bar’s refusal to voluntarily relinquish its parking lot recordings contains plenty of statements from the Royal Canadian Mounted Police and others in the law enforcement field. And every single statement makes it clear Canadian law enforcement believes they’re owed whatever evidence might be available and should never be inconvenienced (even momentarily) by demands officers go get a warrant they could easily obtain within minutes.

A shooting happened outside of the Cactus Club Cafe and the RCMP asked anyone in the area to come forward with any recordings they might have of the area the shooting took place in. The RCMP approached the club and was told it needed to obtain a warrant if it wanted copies of the club’s parking lot footage.

As the owners of the restaurant chain pointed out in its statement to Canada’s Global News, this is standard operating procedure for the company.

“The process of requesting a production order before releasing surveillance footage is a standard practice put in place across all of our locations. This protects privacy and ensures we’re following the law.”

Which is, of course, the way it should be. The company should comply with court orders but it should not feel obligated to hand over footage obtained by its cameras without one.

Everyone else — including the national association representing bars and restaurants — appears to feel the Cactus Club is in the wrong.

“The general protocol is for people to give up, not just restaurants, but people to give up video to help and assist the police in a manner that’s fairly quick,” said president and CEO Ian Tostenson.

Totenson heads up British Columbia’s Restaurant and Food Service Association. But rather than advocate for the rights of the private companies he represents, he has chosen to present the Cactus Club as some sort of scofflaw, even if all it did was ask to see a warrant before handing over recordings that can only be obtained with a warrant or consent.

That demand for the proper paperwork was apparently a first for the RCMP, which seemingly feels it shouldn’t need to seek warrants when there’s [checks article again] suspected criminal activity occurring. Here’s just one of the statements made by British Columbia’s “visibly upset” public safety minister.

“It’s the first time it’s crossed my desk that there has been a refusal to initially comply with police request for video,” Mike Farnworth told Global News in an interview Tuesday.

Well, that’s a shame. Too many private entities are being far too compliant. There’s no legal obligation to consent to warrantless searches of any private property, including recordings created with privately-owned cameras. Just because most people turn over footage voluntarily doesn’t make the Cactus Club wrong. It just means most people don’t care about their rights, much less the precedent they’re inadvertently setting — the sort of low bar that ensures law enforcement officers will be easily offended (and pettily vindictive) the moment anyone provides the least bit of (explicitly legal!) resistance.

And it’s not just the RCMP. It’s also the mayor of Coquitlam, where this particular club is located.

“For a local business to insist that the RCMP get a warrant for information that they might have that could lead to an arrest is outrageous…” 

It definitely is not “outrageous.” It’s exactly within their well-established rights. The RCMP has an obligation to obtain consent or a warrant. It failed to get consent. It did, as the article notes, secure a warrant and the footage investigators were seeking. Everything worked out. And one would logically assume it didn’t take much to secure the warrant, considering the strong likelihood the restaurant’s cameras captured footage of the shooting.

So, why all the shouting? Well, it appears that everyone from the RCMP official to the mayor to the head of a private retail association believes cops should never have to get a warrant when investigating crimes. Holy shit, what a statement to make, even implicitly.

And somehow, it gets even worse. The club’s decision to exercise its rights has been met with explicit retaliation by the BC government. Here’s more from the BC public safety minister, who apparently sees nothing wrong with punishing a company for asking to see a warrant:

In the most recent case, Farnworth said the province has since amended the terms and conditions of the Barnet Highway Cactus Club’s liquor licence.

“They must have video surveillance and they must provide it to the police or a liquor inspector upon request,” said the public safety minister.

A warrant is a “request,” you fool. And yet, this entity has decided to “amend” a liquor license of this one club to force it to comply with warrantless demands for private camera footage — something that clearly falls outside of its legal obligations. But now, it’s the law of land — a law that now explicitly singles out a single business with a compelled compliance mandate.

Hopefully, the Cactus Club will sue. This is clearly retaliatory. It’s now subject to mandates that don’t apply to other liquor license holders in British Columbia… just the one that did nothing more than ask the RCMP to respect its rights as a private business.

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Flooding Congress with phone calls can work wonders to stop bad bills at times. The SOPA blackout 12 years ago was one of the most effective advocacy campaigns in history. Coincidentally, I was at the Capitol that day, and wandering the halls between meetings, hearing phones ringing non-stop was amazing.

However, that process was carefully planned out over weeks, with sites pushing a very clear message of why internet users should call Congress and complain about the terrible copyright laws that were being pushed.

It appears that TikTok may have taken the wrong lesson from all that and assumed that simply flooding Congress with calls is an effective strategy. It can be, but you have to equip callers with a basic understanding of what it is that they’re calling for and why. And maybe it doesn’t make sense to do it on a bill built off the (mostly false) belief that your app is controlling the minds of gullible American voters.

On Thursday, TikTok put up a pop-up on all US users’ screens when they went to get their daily fill of random videos:

“Stop a TikTok shutdown!” it yells, claiming that “Congress is planning a total ban of TikTok. Speak up now — before your government strips 170 million Americans of their Constitutional right to free expression.”

The bill in question is stupid. It’s a fear-mongering (bipartisan) bunch of grandstanding nonsense. It doesn’t technically “ban” TikTok, but would directly require ByteDance to divest its ownership in the company. If ByteDance does not do so, then it is a ban (despite the bill’s sponsors insisting it’s not). It does seem like a pretty clear bill of attainder, targeting a single company, TikTok, out of yet another fear-mongering moral panic that a successful internet company coming out of China must be evil.

As we’ve been saying for years now, if the fear is about the privacy of American users of the platform, Congress could pass a comprehensive privacy bill. They just choose not to do so. Instead, they play up a silly culture war, which will only lead to even more retribution for American apps outside the US. Indeed, expect to see other countries passing similar bills demanding that US companies divest from successful apps in their countries, as a result of this stupid bill.

And, on top of that, the bill is almost certainly a First Amendment violation, as has been found during previous attempts to effectively ban TikTok, none of which have gone well in court.

TikTok’s gambit apparently worked in terms of getting people to call. But it didn’t always effectively get the message out:

TikTok users flooded some congressional offices with dozens of calls. Results were mixed: Some staffers dismissed the callers as uninformed, or as pranksters, or as “teenagers and old people saying they spend their whole day on the app.”

And, look, when you have a bunch of overly anxious politicians who think that TikTok is like Chinese mind control over American brains (it’s not, but that’s what they seem to think), it’s not difficult to see how telling TikTok users to call Congress could drive those politicians to think this is even more evidence of why the bill is needed, especially when there is a flood of calls from unsophisticated constituents talking about how they “spend their whole day on the app.”

And that seems to have been the case.

House Energy and Commerce Chair Cathy McMorris Rodgers (R-Wash.) said if anything, TikTok’s orchestrated calling campaign “only exposed the degree in which TikTok can manipulate and target a message.”

And thus it’s no surprise that the committee voted 50 to 0 to advance the bill:

Lawmakers on the Energy and Commerce Committee, which greenlit the bill Thursday afternoon after months of negotiations, said the intent was not to get rid of TikTok, but to prevent a Chinese company from having access to large troves of American data.  The committee voted 50-0 to advance the bill to the full House or Representatives.

Again, it’s a painfully stupid and reactionary bill, but this campaign seemed pretty mistargeted. There was a way in which TikTok could have more effectively leveraged its large user base to talk about the problems and risks of such a bill. But just sending them in to scream at Congress was perhaps not the best approach given the specific animus behind this bill.

Aging satellite TV provider Dish Network is supposed to be undergoing a major transformation from tired old satellite TV provider to streaming and wireless juggernaut. It was a cornerstone of a Trump administration FCC and DOJ plan to cobble together a new wireless carrier out of twine and vibes as a counter-balance to the competition-eroding T-Mobile and Sprint merger.

It’s… not going well. All of the problems critics of the T-Mobile and Sprint merger predicted (layoffs, price hikes, lest robust competition) have come true. Meanwhile Dish has been bleeding satellite TV, wireless, and streaming TV subscribers for a while (last quarter the company lost another 314,000 TV subscribers, including 249,000 satellite TV subs and 65,000 Sling TV customers).

Dish’s new 5G network has also generally been received as a sort of half-hearted joke. Dish also lost 123,000 prepaid wireless subscribers last quarter; it can’t pay its debt obligations, can’t afford to buy the spectrum it was supposed to acquire as part of the Sprint/T-Mobile merger arrangement; and expanding its half-cooked 5G network looks tenuous at best.

Last year Dish proposed merging with Echostar in a bid to distract everybody from the company’s ongoing mess. They’ve also tried to goose stock valuations by hinting at an equally doomed merger with DirecTV. But those distractions didn’t help either, and there are increasing worries among belatedly aware analysts that this all ends with bankruptcy and a pile of rubble:

“MoffettNathanson analyst Craig Moffett offered a blunt assessment of the company’s future based on Dish’s deteriorating pay-TV and mobile subscriber customer base: “Dish’s business is spiraling towards bankruptcy. Gradually, then all at once, the declines are gathering speed,” he wrote in a research note.”

From 2019 or so I noted that this whole mess was likely a doomed effort, primarily designed to provide cover for an anti-competitive, job-killing wireless merger. It always seemed likely to me that Dish (which had never built a wireless network) would string FCC regulators along for a few years before selling off its valuable spectrum assets and whatever half-assed 5G network it had managed to construct.

Despite this, trade magazines that cover the telecom industry tried desperately to pretend this was all a very serious adult venture, despite zero indication anyone involved had any idea what they were doing. And the deal rubber stamping and circular logic used to justify it ran in very stark contrast to the ongoing pretense that we supposedly care about “antitrust reform.”

Ultimately Dish will make a killing on spectrum, the FCC will fine them a relative pittance for failing to meet the flimsy build requirements affixed to the merger conditions, and Dish CEO Charlie Ergen will trot off into the sunset on a giant pile of money. Some giant player like Verizon will then swoop in to gobble up what’s left of the wreckage, and the industry will consolidate further (the whole point)

The regulatory impact of approving Sprint/T-Mobile, which consolidated the U.S. wireless market from four to three major providers (jacking up prices and killing off thousands of jobs), will be forgotten, and the regulators and officials behind the entire mess will have long ago moved on to other terrible, short-sighted ideas.

It’s a point we have to make far more often than we should: trademark law is not designed to allow anyone or any company to simply lock up common language as their own. There are lots of ways the confusion around that expresses itself, but one of the most common concerns generic terms for goods and services. Yes, you can trademark Coca-Cola. No, you cannot trademark “soda.” Yes, you can trademark “Apple” for computers. No, you cannot trademark “apples” for your apple-farming company. See? Not too hard!

For us, at least. For the folks at Snap, however, the point seems to elude them. Snap has a line of augmented reality glasses and has unhelpfully decided to name the product “Spectacles.” When Snap applied for a trademark on the name of the product, the USPTO managed to actually get it right and denied the application over the generic nature of the term.

But rather than slinking away with a sly smile at the failed attempt to get one over on the USPTO, Snap has now sued the USPTO instead.

The USPTO rejected Snap’s trademark application for the name in 2020, finding it trademark-ineligible because it was either generic or descriptive. A USPTO tribunal affirmed the decision later that year. Snap asked the California court in 2022 to force the USPTO to grant the trademark, and said that potential buyers think of “Spectacles” as a Snap brand instead of a generic term for smart glasses.

The USPTO asked the court last year to grant it a win without a trial.

And the court just recently denied the USPTO’s request and is allowing the trial to move forward. Why? I have no real idea. The U.S. Magistrate Judge cited “competing evidence” that needed to be sorted out in an actual trial, but I truly can’t understand what in the world that competing evidence would be. The only specifics in the judge’s order reference surveys and expert testimony as to whether the public associates the term “spectacles” with glasses in general, or with Snap’s product. And I suspect the court is allowing this to go to trial mostly as a procedural result, since the burden at this stage would be on the USPTO to demonstrate that the evidence in the case is one-sided to get a judgement without trial.

And the judge apparently thinks it’s not one-sided enough. So now this goes to trial, where one would hope it ultimately becomes a win for the USPTO.

Axon, most famous for producing Tasers, is again making the sort of headlines it really shouldn’t make.

Everyone knows Taser. The company produces the most-used “less lethal” weapons cops deploy. “Less” is the key word here. It’s basically a cattle prod for humans but one that’s routinely deployed with less care than a cattle prod, even if its manufacturer instructs cops to limit the number of uses per minute or cautions against over-use of drive stun mode. People with heart conditions shouldn’t be tased, but no one’s consulting medical files before affecting arrests. People who’ve just doused themselves with gasoline definitely shouldn’t be tased, but you go to war with the army you have.

Axon is now more interested in selling body cams to cops. It will still sell you all the Tasers you want, but the real money is in the data storage and access market. It’s the inkjet printer plan, but for cops. The body cams are the loss leaders. Record all you want, but storing and accessing recordings will cost you, much in the same way your $29.99 printer won’t function until you buy a $70 3-color ink refill.

This shift in focus has allowed Axon to make more money while distancing itself from Tasers and the damage done — something it definitely needed to do as medical association after medical association refused to recognize “excited delirium” as an actual health condition.

For some reason, Axon seems to have a problem with accepting rejection, despite being the most-recognized name in the lucrative body cam field. A little more than four years ago, Axon generated negative headlines for refusing to gracefully accept the termination of a contract. The Fontana, California police department discontinued its use of Axon body cameras, making its $4,000/year contract with Axon’s Evidence.com completely useless.

Axon refused to take the L. It responded to the Fontana PD’s suggestion it would not continue to pay the bill for services it wasn’t using with this:

The only cancellation term is Termination for Non-Appropriations or lack of funding. There is a negative effect, however, as it can affect the credit rating of the City. Since we are looking at about nine months it would probably make more sense to ride out the rest of the contract…

In other words, Axon suggested it would report each month of non-payment to credit agencies, dragging down the city’s credit rating simply because it didn’t want to pay for something it wasn’t using.

While some might defend Axon by saying “the city signed a contract!,” that argument doesn’t hold up. The contract (contractually!) gave the city this option: “termination for convenience.” That clause meant the city could cancel the contract for exactly the reasons stated: it no longer required Axon’s storage and access services because it was no longer using the company’s body cameras.

Axon is doing this shit again, albeit for much different reasons. As Sam Kmack reports for AZCentral, Axon is again behaving in an extremely petty fashion because it didn’t get what it wanted.

Scottsdale’s city attorney confirmed in a sharply worded letter that an Axon employee had contacted a city planning commissioner’s boss about the official’s opposition to a controversial project.

“This type of action tends to raise public concern about the integrity of the city’s public hearing process,” City Attorney Sherry Scott wrote in a letter dated Friday. “It can also have a chilling effect on … public officials’ willingness to serve in their volunteer capacity.”

Here’s the thing about city and town commissioners. Being a commissioner isn’t their only job. Most commissioner positions don’t pay enough to be anyone’s only job. On top of that, their work for the locales they represent doesn’t consume 40 hours a week, 52 weeks a year.

So, when Axon pitched the city of Scottsdale a plan to build 2,000 apartment units near its proposed headquarters, it assumed the city would choose to ignore the fact that the location it had chosen wasn’t actually zoned for apartment construction.

Axon reps attended a city meeting in January, hoping to convince commissioners that rezoning the area to give Axon what it wanted would be a win for all Scottsdale residents. The commissioners disagreed, with Planning Commissioner Christian Serena being the most vocal in his objections.

Last month, Serena informed the city attorney a member of “Axon’s leadership” had contacted his day job, allegedly telling his employer (Merrill Lynch), presumably insinuating that his day job presented some form of conflict of interest since Merrill Lynch has also made overtures to Axon in an attempt to secure its (still-undefined) business.

Scott confirmed in the letter, addressed to Axon’s lawyer, an Axon employee did contact Serena’s employer, Merrill Lynch.

“It is apparent to me that an Axon employee did contact Commissioner Serena’s employer to discuss dissatisfaction with Commissioner Serena’s public hearing comments,” Scott wrote.

This “dissatisfaction” was explained more explicitly in Axon CEO Rick Smith’s response to the city attorney’s letter.

“Your March 1st letter was in the hands of multiple media outlets within hours of receipt. Up to this time, we limited our correspondence with media out of respect for the integrity of the process,” Smith’s letter read. “Unfortunately, it appears some within the City are more focused on prioritizing political theater.”

Smith’s letter contends Serena may have had a conflict of interest in deciding on Axon’s project because “Merrill Lynch (and its parent company) Bank of America have been unsuccessful in winning Axon’s business” despite approaching the company on “several occasions.”

Whew. That’s not even a denial. That’s pretty much an admission someone pretty far up the org chart tried to convince the commissioner’s employer that Serena was supposedly rejecting Axon’s request for re-zoning solely because Merrill Lynch’s courtship of Axon had been unsuccessful.

Even if this were true (and there’s not a whole lot of reason to believe it is), the proper way to handle this would be to take it up with the city’s commissioners, rather than approach a commissioner’s day job and try to get them reprimanded, if not fired, simply because Axon failed to convince a city government to alter the regulatory landscape to indulge one company’s wishes.

It’s not a good look, especially for a company that relies almost solely on contracts with government agencies to make ends meet. And it’s definitely not a good look for a company that’s done this sort of thing before. Sure, this may seem like two unrelated instances, but if it’s been caught doing this twice, there’s a good chance it’s gone a bit thuggish in the past, but has managed to escape being called out publicly.

Senator Ron Wyden is a one-man defense for preventing horrible bills from moving forward in the Senate. Last month, he stopped Josh Hawley from moving a very problematic STOP CSAM bill from moving forward, and now he’s had to do it again.

A (bipartisan) group of senators traipsed to the Senate floor Wednesday evening. They tried to skip the line and quickly move some bad bills forward by asking for unanimous consent. Unless someone’s there to object, it effectively moves the bill forward, ending committee debate about it. Traditionally, this process is used for moving non-controversial bills, but lately it’s been used to grandstand about stupid bills.

Senator Lindsey Graham announced his intention to pull this kind of stunt on bills that he pretends are about “protecting the children” but which do no such thing in reality. Instead of it being just him, he rounded up a bunch of senators and they all pulled out the usual moral panic lines about two terrible bills: EARN IT and STOP CSAM. Both bills are designed to make it sound like good ideas and about protecting children, but the devil is very much in the detail, as both bills undermine end-to-end encryption while assuming that if you just put liability on websites, they’ll magically make child predators disappear.

And while both bills pretend not to attack encryption — and include some language about how they’re not intended to do so — both of them leave open the possibility that the use of end-to-end encryption will be used as evidence against websites for bad things done on those websites.

But, of course, as is the standard for the group of grandstanding senators, they present these bills as (1) perfect and (2) necessary to “protect the children.” The problem is that the bills are actually (1) ridiculously problematic and (2) will actually help bad people online in making end-to-end encryption a liability.

The bit of political theater kicked off with Graham having Senators Grassley, Cornyn, Durbin, Klobuchar, and Hawley talk on and on about the poor kids online. Notably, none of them really talked about how their bills worked (because that would reveal how the bills don’t really do what they pretend they do). Durbin whined about Section 230, misleadingly and mistakenly blaming it for the fact that bad people exist. Hawley did the thing that he loves doing, in which he does his mock “I’m a big bad Senator taking on those evil tech companies” schtick, while flat out lying about reality.

But Graham closed it out with the most misleading bit of all:

In 2024, here’s the state of play: the largest companies in America — social media outlets that make hundreds of billions of dollars a year — you can’t sue if they do damage to your family by using their product because of Section 230

This is a lie. It’s a flat out lie and Senator Graham and his staffers know this. All Section 230 says is that if there is content on these sites that violate the law, the liability goes after whoever created the content. If the features of the site itself “do damage,” then you can absolutely sue the company. But no one is actually complaining about the features. They’re complaining about content. And the liability on the content has to go to who created it.

The problem here is that Graham and all the other senators want to hold companies liable for the speech of users. And that is a very, very bad idea.

Now these platforms enrich our lives, but they destroy our lives.

These platforms are being used to bully children to death.

They’re being used to take sexual images and voluntarily and voluntarily obtain and sending them to the entire world. And there’s not a damn thing you can do about it. We had a lady come before the committee, a mother saying that her daughter was on a social media site that had an anti-bullying provisions. They complained three times about what was happening to her daughter. She killed herself. They went to court. They got kicked out by section 230.

I don’t know the details of this particular case, but first off, the platforms didn’t bully anyone. Other people did. Put the blame on the people actually causing the harm. Separately, and importantly, you can’t blame someone’s suicide on someone else when no one knows the real reasons. Otherwise, you actually encourage increased suicides, as it gives people an ultimate way to “get back” at someone.

Senator Wyden got up and, as he did last month, made it quite clear that we need to stop child sexual abuse and predators. He talked about his bill, which would actually help on these issues by giving law enforcement the resources it needs to go after the criminals, rather than the idea of the bills being pushed that simply blame social media companies for not magically making bad people disappear.

We’re talking about criminal issues, and Senator Wyden is looking to handle it by empowering law enforcement to deal with the criminals. Senators Graham, Durbin, Grassley, Cornyn, Klobuchar, and Hawley are looking to sue tech companies for not magically stopping criminals. One of those approaches makes sense for dealing with criminal activity. And yet it’s the other one that a bunch of senators have lined up behind.

And, of course, beyond the dangerous approach of EARN IT, it inherently undermines encryption, which makes kids (and everyone) less safe, as Wyden also pointed out.

Now, the specific reason I oppose EARN It is it will weaken the single strongest technology that protects children and families online. Something known as strong encryption.

It’s going to make it easier to punish sites that use encryption to secure private conversations and personal devices. This bill is designed to pressure communications and technology companies to scan users messages.

I, for one, don’t find that a particularly comforting idea.

Now, the sponsors of the bill have argued — and Senator Graham’s right, we’ve been talking about this a while — that their bills don’t harm encryption. And yet the bills allow courts to punish companies that offer strong encryption.

In fact, while it includes some they language about protecting encryption, it explicitly allows encryption to be used as evidence for various forms of liability. Prosecutors are going to be quick to argue that deploying encryption was evidence of a company’s negligence preventing the distribution of CSAM, for example.

The bill is also designed to encourage scanning of content on users phones or computers before information is sent over the Internet which has the same consequences as breaking encryption. That’s why a hundred civil society groups including the American Library Association — people then I think all of us have worked for — Human Rights Campaign, the list goes… Restore the Fourth. All of them oppose this bill because of its impact on essential security.

Weakening encryption is the single biggest gift you can give to these predators and these god-awful people who want to stalk and spy on kids. Sexual predators are gonna have a far easier time stealing photographs of kids, tracking their phones, and spying on their private messages once encryption is breached. It is very ironic that a bill that’s supposed to make kids safer would have the effect of threatening the privacy and security of all law-abiding Americans.

My alternative — and I want to be clear about this because I think Senator Graham has been sincere about saying that this is a horrible problem involving kids. We have a disagreement on the remedy. That’s what is at issue.

And what I want us to do is to focus our energy on giving law enforcement officials the tools they need to find and prosecute these monstrous criminals responsible for exploiting kids and spreading vile abuse materials online.

That can help prevent kids from becoming victims in the first place. So I have introduced to do this: the Invest in Child Safety Act to direct five billion dollars to do three specific things to deal with this very urgent problem.

Graham then gets up to respond and lies through his teeth:

There’s nothing in this bill about encryption. We say that this is not an encryption bill. The bill as written explicitly prohibits courts from treating encryption as an independent basis for liability.

We’re agnostic about that.

That’s not true. As Wyden said, the bill has some hand-wavey language about not treating encryption as an independent basis for liability, but it does explicitly allow for encryption to be one of the factors that can be used to show negligence by a platform, as long as you combine it with other factors.

Section (7)(A) is the hand-wavey bit saying you can’t use encryption as “an independent basis” to determine liability, but (7)(B) effectively wipes that out by saying nothing in that section about encryption “shall be construed to prohibit a court from considering evidence of actions or circumstances described in that subparagraph.” In other words, you just have to add a bit more, and then can say “and also, look, they use encryption!”

And another author of the bill, Senator Blumenthal, has flat out said that EARN IT is deliberately written to target encryption. He falsely claims that companies would “use encryption… as a ‘get out of jail free’ card.” So, Graham is lying when he says encryption isn’t a target of the bill. One of his co-authors on the bill admits otherwise.

Graham went on:

What we’re trying to do is hold these companies accountable by making sure they engage in best business practices. The EARN IT acts simply says for you to have liability protections, you have to prove that you’ve tried to protect children. You have to earn it. You’re just not given to you. You have to have the best business practices in place that voluntary commissions that lay out what would be the best way to harden these sites against sexually exploitation. If you do those things you get liability, it’s just not given to you forever. So this is not about encryption.

As to your idea. I’d love to talk to you about it. Let’s vote on both, but the bottom line here is there’s always a reason not to do anything that holds these people liable. That’s the bottom line. They’ll never agree to any bill that allows you to get them in court ever. If you’re waiting on these companies to give this body permission for the average person to sue you. It ain’t never going to happen.

So… all of that is wrong. First of all, the very original version of the EARN IT Act did have provisions to make company’s “earn” 230 protections by following best practices, but that’s been out of the bill for ages. The current version has no such thing.

The bill does set up a commission to create best practices, but (unlike the earlier versions of the bill) those best practice recommendations have no legal force or requirements. And there’s nothing in the bill that says if you follow them you get 230 protections, and if you don’t, you don’t.

Does Senator Graham even know which version of the bill he’s talking about?

Instead, the bill outright modifies Section 230 (before the Commission even researches best practices) and says that people can sue tech companies for the distribution of CSAM. This includes using the offering of encryption as evidence to support the claims that CSAM distribution was done because of “reckless” behavior by a platform.

Either Senator Graham doesn’t know what bill he’s talking about (even though it’s his own bill) or he doesn’t remember that he changed the bill to do something different than it used to try to do.

It’s ridiculous that Senator Wyden remains the only senator who sees this issue clearly and is willing to stand up and say so. He’s the only one who seems willing to block the bad bills while at the same time offering a bill that actually targets the criminals.