Tag Archive for: incredibly

This hacker used over a million virtual servers to create an incredibly powerful network – but then wasted it on mining crypto

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Ukrainian police have arrested a hacker who allegedly used compromised servers belonging to an American company to secretly mine cryptocurrencies. 

The Ukrainian cyberpolice revealed the individual was able to create a million virtual servers on which he proceeded to install cryptojackers – cryptocurrency miners that try to operate in the background and without the knowledge or consent of the endpoint’s owners.

Source…

JaM Cellars Sues Franzia For Trademark Over ‘Jammy’, An Incredibly Common And Descriptive Term In Wines

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The alcohol trademark wars continue! Now, usually when we talk about trademark disputes in the booze business, those disputes tend to center around creative names and trade dress of specific craft brands. This is most common in the craft beer arena, but it also happens in wine and liquor. While the sudden turn towards corporatism in the craft alcohol industries is more than mildly annoying, it is at least understandable when there is a trademark fight over the more unique aspects of branding.

Much more annoying is when trademark disputes arise from one party trying to fight over the more generic terms in the alcohol industry. An example of this comes to us from JaM Cellars, the makers of the JaM brand of wine. Full disclosure: I’ve consumed roughly a metric ton of JaM wine in my time and really, really love it. What I love less, though, is that JaM decided to sue The Wine Group, makers of Franzia boxed wine, over its newly branded “Bold and Jammy” brand of boxed red wine.

On April 1, 2020, JaM Cellars filed a trademark infringement lawsuit against The Wine Group, makers of the popular Franzia brand boxed wine. Plaintiff JaM Cellars is the owner of trademarks relating to the word JAM used in wine products (U.S. Trademark Registration Nos. 3,787,229 and 3,855,785). According to the complaint, since being introduced in 2009, wine using the JAM marks has received several awards, and JaM Cellars has expended millions of dollars in advertising the wine using the JAM marks.

JaM Cellars filed the complaint in the U.S. Federal Court in the Northern District of California. In addition to allegations of trademark infringement, the complaint also includes unfair competition claims under federal and state law.

The full complaint is embedded below, but a couple of items worth highlighting. First, this is not the first such case between these two entities. JaM also has a “Butter” branded wine and sued The Wine Group over its “Butterkissed” wines, as well as a more recent and pending suit over The Wine Group’s “Rich and Buttery” branded Franzia wines. What should immediately strike most everyone, and especially those of you who, like me, consider yourself amateur sommeliers, is that all of these terms are incredibly common in the wine industry. Why the Trademark Office approved these marks is a totally valid question, but it doesn’t seem as though JaM Cellars should be able to wield the USPTO’s ignorance as a way to keep descriptive terms out of the brands of its competition.

And yet that is exactly what it’s trying to do. Explicitly, even, right in the pages of the complaint.

Plaintiff’s JAM Marks for wine are not descriptive when used in association with wine and therefore are inherently distinctive. The inherent distinctiveness of Plaintiff’s JAM Mark is presumed and incontestable given its ownership of the incontestable federal trademark registrations.

That’s some 91 pt. sophistry right there. The argument is essentially that it cannot be argued that the terms in question on either side of this trademark lawsuit could be considered descriptive because the Trademark Office approved the trademark JaM is using to file the lawsuit. As though the USPTO has never approved a descriptive trademark in error, or made any error of any kind, apparently. One hopes the courts or defendants smack that particular passage around in open session.

Beyond that, this all comes down to customer confusion. JaM Cellars spends far less time in its complaint on anything to do with customer confusion and instead focuses on how The Wine Group branded its Bold and Jammy boxed wine differently than its other brands. The image below is directly from the complaint.

Is the branding different? Well, sure! One might call the branding for Bold and Jammy more…bold and jammy? But you might also notice that the same Franzia branding across the top is in place. And then, compare that to the branding on the JaM wine, which looks very, very different (again, straight from the lawsuit):

I feel quite confident that the average consumer walking up and seeing these two products side by side (which they aren’t in stores) would not be confused into thinking they were related. I’m all the more confident that the average wine drinker isn’t going to have that confusion given the stature of each brand among wine drinkers.

In the end, all of this is a stupid fight over incredibly common terms in the wine industry. While The Wine Group has a history of settling with JaM Cellars out of court, this is a fight I hope they see to the end.

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FBI Serves Incredibly Broad Warrant To 8chan, Demanding Info On All Users Who Responded To A Shooter’s Post

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Internet hellhole 8chan has been hit with a federal search warrant. The site, created to serve those who felt 4chan’s nearly-nonexistent moderation was too restrictive, has been front and center recently due to its hosting of manifestos by mass shooters who apparently frequented the site.

In this case, an investigation into a shooting at a California mosque has led the FBI to the pages of 8chan. Postings at the site — along with some at Facebook — have linked the shooter to the Christchurch shooting in New Zealand. According to the affidavit [PDF], the FBI believes the California mosque shooter was “inspired and/or educated” by the New Zealand’s shooters manifesto and actions.

The Poway shooter is already in custody, so the value of the information sought here is questionable. While the info may have some value in establishing the shooter’s state of mind, as well as his connection to other crimes, the warrant does bear some resemblance to a fishing expedition.

From the affidavit, it appears the feds have no shortage of evidence to use against the shooter:

Using various search methods, Whitney Buckingham an SDSD system data miner, found a manifesto on Pastebin.com written by a person identifying himself as John Earnest. In the manifesto, which he named “An Open Letter”, Earnest made many anti-Semitic and anti-muslim statements. One such statement which is a direct quote is, “As an individual, I can only kill so many Jews.” He states he is not a terrorist but that he hates anyone who he sees as a threat to his country. Earnest took credit for a fire that had been set at mosque in Escondido a few weeks earlier. His exact statement was “I scorched a mosque in Escondido with gasoline a week after Brenton Tarrant’s sacrifice and they never found shit on me. Additionally, he wrote “I spray-painted on the parking lot. I wrote ‘For Brenton Tarrant -t./pol/.”

Tarrant is the New Zealand shooter Earnest apparently tried to emulate. Obviously, the threat of copycat killers is always a concern following mass shootings, but what the government is demanding here has the potential to sweep up dozens of users who did nothing but reply to threads involving the arrested shooter.

Agents seek IP address and metadata information about Earnest’s original posting and the postings of all of the individuals who responded to the subject posting and/or commented about it. Additionally, agents seek information about any other posting coming from the IP address used by Earnest to post the subject posting.

This seems like a lot of people to be investigating for just being in the wrongest place on the internet at the wrong time. The justification for this is speculation that others who viewed the post will either become shooters themselves or somehow conspired with the shooter to carry out this horrible crime in which Earnest was the only shooter.

As discussed above, Earnest made a posting in which he thought to draw attention to his forthcoming attack on the Chabad of Poway, share his views through his open letter, and offer people the opportunity to observe the attack itself. Several people responded, both individuals who were taken aback about the posting as well as people who were sympathizers. As a result, some of the individuals may be potential witnesses, co-conspirators and/ or individuals who are inspired by the subject posting. Based on agents’ training and experience, following attacks such as those conducted by Earnest, other individuals are inspired by the attacks and may act of their own accord.

By its own admission, the FBI is seeking information about posters “taken aback” by Earnest’s post — users unlikely to be “inspired” by the shooting or his co-conspirators. Apparently, the FBI doesn’t trust 8chan to make that assessment, so it’s asking for everything so it can sort through it and draw its own conclusions, engage in its own “non-custodial” interviews, subpoena a number of other service providers for more info, etc.

In fact, the FBI would prefer Ch.net — the host for 8chan — just hand over everything demanded by the warrant without getting involved at all.

In order to accomplish the objective of the search warrant with a minimum of interference with the business activities of Ch.net, to protect the rights of the subject of the investigation and to effectively pursue this investigation, authority is sought to allow Ch.net to make a digital copy of the entire contents of the accounts subject to seizure.

However you may feel about 8chan and its denizens (and I hope those feelings are mostly negative), this is not a justifiable demand for information. The FBI wants everything on everyone in that thread, even as it states some of the users it’s targeting were appalled by what they were seeing. This makes everyone in the thread a suspect and treats anonymous users of this site as inherently suspicious, no matter what their posts actually say.

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Vermont’s Revenue Porn Law Ruled Constitutional… With An Incredibly Confused Ruling

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Revenge porn — or, more accurately, “non-consensual pornography” — is unquestionably bad. We’ve spent plenty of time mocking the jackasses who have been involved in these awful sites, and have been happy to see them flail around as the stench of their association with these sites sticks.

However, we have not supported the attempts by a small group of legal academics to criminalize running such a site for a variety of reasons. First, such an action would make plenty of protected speech illegal causing massive collateral damage to speech and internet platforms. Second, as we’ve repeatedly documented, these revenge porn sites don’t seem to last very long, and those involved with them have a fairly permanent stain on their reputations. Third, in many cases, the type of people running these sites often seem to have already violated other laws, for which law enforcement is able to go after them.

In recent years, the Supreme Court has made it pretty clear that it has little interest in expanding the categories of speech that are exempted from the First Amendment. I’ve often pointed to lawyer Mark Bennett’s 2014 blog post entitled First Amendment 101 in which he details out the very short list of speech that is not protected by the First Amendment. That post is actually about attempts to outlaw revenge porn and claims that it’s not protected by the First Amendment, but the list is a useful one to point to any time anyone suggests that this or that speech shouldn’t be subject to the First Amendment.

Some people insist that revenge porn would clearly be exempt from the First Amendment because it’s so bad. But they ignore that, in recent years, the Supreme Court has made it clear that such awful content as video depictions of cruelty to animals and picketing military funerals with truly hateful signs is protected under the First Amendment. The Supreme Court has it’s very short and narrow list of exceptions, and hasn’t shown any indication that it’s ready to expand that list.

Indeed, the very same Mark Bennett, earlier this year, helped get a Texas revenge porn law declared unconstitutional, as the court there recognized that the law ran afoul of the First Amendment, in that it was criminalizing a new category of speech not currently exempted, and was unable to survive strict scrutiny, as per the Supreme Court, for any legislation that includes content-based restrictions.

But Mark Bennett is now reasonably perturbed that the Supreme Court of Vermont has decided that that state’s revenge porn law is constitutional. And part of the reason he’s so perturbed is that the ruling is truly bizarre. It accurately notes that revenge porn does not fall into one of the delineated exceptions to the First Amendment… but (surprisingly) that it still can withstand strict scrutiny:

For the reasons set forth below, we conclude that “revenge porn” does not fall within an established categorical exception to full First Amendment protection, and we decline to predict that the U.S. Supreme Court would recognize a new category. However, we conclude that the Vermont statute survives strict scrutiny as the U.S. Supreme Court has applied that standard.

That’s… very strange. Usually, once a court recognizes that something is not in an exempted bucket, it finds the law to be unconstitutional. Here, Vermont is carving new territory. Thankfully, as part of saying that revenge porn is not in an already exempted bucket is a good thing, as it wipes out the incorrect claim by some law professors that you could just say that revenge porn is obscene (which would be very problematic). The court correctly highlights how there are massive differences between what is obscene and what is revenge porn, and notes (correctly again) that the Supreme Court is loathe to expand the definition of obscene:

We recognize that some of the characteristics of obscenity that warrant its regulation also characterize nonconsensual pornography, but we take our cues from the Supreme Court’s reluctance to expand the scope of obscenity on the basis of a purpose-based analysis.

Next, the court (correctly!) says it’s in no position to create a new category of exempted speech:

Although many of the State’s arguments support the proposition that the speech at issue in this case does not enjoy full First Amendment protection, we decline to identify a new categorical exclusion from the full protections of the First Amendment when the Supreme Court has not yet addressed the question.

Indeed, the Vermont Supreme Court highlights how frequently the US Supreme Court has been tossing out laws that try to create new categories of unprotected speech:

[W]e decline to predict that the Supreme Court will add nonconsensual pornography to the list of speech categorically excluded. We base our declination on two primary considerations: the Court’s recent emphatic rejection of attempts to name previously unrecognized categories, and the oft-repeated reluctance of the Supreme Court to adopt broad rules dealing with state regulations protecting individual privacy as they relate to free speech.

More than once in recent years, the Supreme Court has rebuffed efforts to name new categories of unprotected speech. In Stevens, the Court emphatically refused to add “depictions of animal cruelty” to the list, rejecting the notion that the court has “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” 559 U.S. at 472. The Court explained, “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that ‘depictions of animal cruelty’ is among them.” Id. A year later, citing Stevens, the Court declined to except violent video games sold to minors from the full protections of the First Amendment. Brown, 564 U.S. at 790-93 (“[N]ew categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.”). And a year after that, the Court declined to add false statements to the list. Alvarez, 567 U.S. at 722 (affirming appeals court ruling striking conviction for false statements about military decorations).

More significantly, as set forth more extensively above… in case after case involving a potential clash between the government’s interest in protecting individual privacy and the First Amendment’s free speech protections, the Supreme Court has consistently avoided broad pronouncements, and has defined the issue at hand narrowly, generally reconciling the tension in favor of free speech in the context of speech about matters of public interest while expressly reserving judgment on the proper balance in cases where the speech involves purely private matters. The considerations that would support the Court’s articulation of a categorical exclusion in this case may carry great weight in the strict scrutiny analysis…. But we leave it to the Supreme Court in the first instance to designate nonconsensual pornography as a new category of speech that falls outside the First Amendment’s full protections.

So then why doesn’t the court declare this law unconstitutional? Well, that has lawyers like Mark Bennett and Eric Goldman perplexed. To pass “strict scrutiny,” the court has to find that the law was passed to further a “compelling government interest” and that the legislation must be “narrowly tailored” to address just the issue for which the government has such a compelling reason.

Here, the court finds that there is a compelling government interest, saying that revenge porn images are not a matter of public concern, and serious harms created by revenge porn make it so that the government has a compelling interest in outlawing such content. Fair enough. But what about the “narrowly tailored” part. That seems like where such a law should fall down, but nope:

Section 2606 defines unlawful nonconsensual pornography narrowly, including limiting it to a confined class of content, a rigorous intent element that encompasses the nonconsent requirement, an objective requirement that the disclosure would cause a reasonable person harm, an express exclusion of images warranting greater constitutional protection, and a limitation to only those images that support the State’s compelling interest because their disclosure would violate a reasonable expectation of privacy. Our conclusion on this point is bolstered by a narrowing interpretation of one provision that we offer to ensure that the statute is duly narrowly tailored. The fact that the statute provides for criminal as well as civil liability does not render it inadequately tailored.

But, of course, the real problem is that all of these laws criminalize tons of content that should otherwise be protected. And here, the court more or less ignores that, by saying that the potentially overbroad nature of the law wasn’t raised by the defendant:

The Supreme Court has recognized that in a facial challenge to a regulation of speech based on overbreadth, a law may be invalidated if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id. at 473 (quotation omitted). Defendant here does not frame his challenge to the statute as an overbreadth challenge but instead argues that insofar as the speech restricted by the statute is content-based, the statute is presumptively invalid and fails strict scrutiny review.

But, as Mark Bennett highlights, this is the court completely missing that “overbreadth” is the thing you check to see if a statute is “narrowly tailored.” But that’s not what happened. Here, the court said no one raised the “overbreadth” issue, and thus it doesn’t need to bother. So, instead, it says that the law is narrowly tailored based on how the law is written with a “rigorous intent element.” But, that’s not how the test works. As Bennett explains:

To pass strict scrutiny, a restriction must be narrowly tailored. It is logically impossible for a statute to be both overbroad and narrowly tailored. Strict scrutiny and overbreadth are not separate analyses. If a content-based restriction is substantially overbroad—if it restricts a real and substantial amount of constitutionally protected speech—it is ipso facto not narrowly tailored, and it fails strict scrutiny.

This is a confused mess of a ruling. As Eric Goldman notes, it’s possible this could be appealed to the US Supreme Court, though it’s unlikely that such a petition would be granted. It does seem likely that eventually this issue would need to be looked over by the Supreme Court to clarify the confusion. But, in the meantime, the law in Vermont stands.

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