Sheriff's Office Raids Home, Seizes All The Furniture, Ultimately Returns Everything But The Couch

from the finder's-fee:-one-(1)-sofa dept

The joke about asset forfeiture is that it's actually not a joke. Advisors to law enforcement have actually said it's a great way for cops to go shopping for things they want. It's not just cash being taken, although it's primarily that. It's vehicles, too. And when that just doesn't seem to be enough, it's houses. And everything in them.

So, the "going shopping" joke is one very dark punchline. Here's another one: "take everything that isn't nailed down." Except that this actually happens. And it includes things that are nailed down. Reason's C.J. Ciaramella has more details.

In 2012, Rehfeldt says the Hind County Sheriff's Office raided his client's apartment on suspicion her boyfriend was a drug dealer. Anything purchased with drug proceeds is fair game to be seized by police under civil asset forfeiture laws, and they determined the boyfriend had furnished the apartment, so off went her TV, her table and chairs, her couch, her lamps, and even the pictures on the wall.

"Her case is the first in my 38 years of practicing law where they took the furniture," Rehfeldt says.

What's the proper response? Shock that this sort of thing actually happens? Or relief that law enforcement doesn't clean out a person's home every time they have a hunch something may have been purchased with the proceeds of criminal activity?

In this case, most of what was taken by the sheriff's office was eventually returned. Rehfeldt's clients is one of the lucky ones, able to navigate a legal pathway that's a greased downhill slope for law enforcement, but an expensive, uphill battle for those whose property has been seized.

His client got everything back. Well, not everything.

"It is, therefore, ordered and adjudged that one Visio television, one dining room table and chairs, pictures and lamps are to be returned to the plaintiff upon execution of this Order by this Court," the Feb. 10, 2015 order in the Hinds County Court reads. "Additionally, one white couch is hereby forfeited to the Hinds County Sheriff's Office."

For reasons unexplained, the sheriff's office was allowed to keep the couch. Perhaps deputies had grown attached to it after it was placed in the breakroom. Or maybe it was "disposed" prior to the forfeiture being finalized and there was simply no way to retrieve it. Or maybe it was just the state's skim -- the percentage taken off the top of every forfeiture, whether or not the seizure was legally-justified.

The skim is part of the problem. Mississippi's legislature is looking at overhauling the state's forfeiture laws and a Senate committee letter obtained by Reason confirms that law enforcement's tendency to charge fees or withhold some percentage of the property seized gives the program the appearance of impropriety.

Upon a cursory analysis of these orders, PEER staff notes that Agreed Orders tend to have the most potential for indicating possible abuse. This is because most Agreed Orders are entered into upon a settlement agreement in which the arresting authority receives some or all of the forfeited property as a condition subsequent to some sort of agreement made between the arresting party and the defendant.

As the arresting party often seizes a large amount of property or cash and many of these Agreed Orders stipulate that some or most of the said property or cash will be returned while some will be forfeited, a reasonable person might assume that the arresting party is using its authority to gain assets from an arrest by settling with the defendant.

If this is how it's routinely handled, it encourages law enforcement to take everything it can get its hands on, if for no other reason than it increase its chances of being able to retain some of it if the forfeiture is challenged. This settlement system perverts incentives, changing it from serving the general public through the targeted crippling of criminal organizations (however loosely-defined) to serving law enforcement agencies by allowing them to directly profit from the taking of citizens' property.

Filed Under: asset forfeiture, civil asset forfeiture, furniture, hinds county, hinds county sheriff's department, law enforcement, returns

DailyDirt: Useful Fungus

from the urls-we-dig-up dept

Fungus is a fascinating form of life. Mold grows almost anywhere, and it can survive some pretty extreme conditions. However, more often than not, it's considered a nuisance that needs to be killed and removed. Some mushroom-lovers have come up with some ways to make fungus useful for us -- taking advantage of how well mold can grow. Here are just a few examples of fungus that isn't for eating, but still serves us.

• Maybe we can use fungi to clean up dispersed radioactive waste -- Cladosporium sphaerospermum is a species of fungus that thrives in radioactive environments (near Chernobyl, for example). These kinds of fungus could help people collect and concentrate radioactive materials to prevent the spread of toxic radiation. [url]
• Mushroom insulation has similar insulating abilities as foam board insulation, but it can be composted (and made without the direct use of petrochemicals). Mushroom insulation can also have the same fire resistance as conventional materials, but presumably it isn't as toxic. [url]
• One of the often-repeated examples of futuristic engineering is the ability to "grow a house" -- and that possibility could become a reality with fungus growing into pre-determined shapes. The MyceliumChair is a step towards growing furniture with fungus and a 3D printed scaffold. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: 3d printing, biology, fungus, furniture, insulation, mold, mushrooms, myceliumchair, radioactivity

Dutch Appeals Court Says eBay Subsidiary Not Liable For Infringement By Users

from the but-what-about-the-pirate-bay? dept

While the Dutch courts forced local ISPs to block The Pirate Bay, kicking off a hilariously pointless and never-ending game of whac-a-mole, it's still never been fully explained why TPB -- as an intermediary -- should be liable for the infringement done by its users. In fact, a new ruling in a Dutch appeals court seems to suggest that neutral intermediaries deserve full protection from liability for infringement by their users. The ruling seems to focus more on trademark, but also appears to reference copyright as well. It involves an eBay subsidiary, Markplaats, and Stokke, makers of a high chair, who felt there was infringement on Markplaats. The case seems similar, in many ways, to a number of trademark cases filed around the globe against eBay.

Here, the court said that a neutral intermediary is not responsible for infringement done by users, and cited last summer's European Court of Justice ruling in the eBay/L'Oreal case. We found that ruling to leave open way too many loopholes that would make intermediaries liable, but thankfully, the appeals court in the Netherlands recognized the key issues, and insisted that Marplaats retains its status as a neutral platform even though it provides many more functions beyond just hosting. The court found that since the functions it performs don't favor either buyers or sellers, it still is considered a "neutral" intermediary.

The court also looked at whether or not certain remedies that Stokke was pushing for made sense, and noted that injunctions that required pro-active monitoring to prevent infringement did not make sense, in part because they seemed disproportionate and expensive. It similarly rejects a "notice and stay-down" provision (like a notice and take-down, but which also requires proactive blocking of any future attempts to post something infringing), noting that such a system would be costly and provide little real benefit.

Overall, this latest ruling seems to make sense, and properly focuses the liability question away from the intermediary tool provider. However, I do wonder how the court rulings against The Pirate Bay (and against neutral proxy services) make sense under a similar light.

Filed Under: european court of justice, furniture, isp, liability, netherlands
Companies: ebay, markplaats, stokke, the pirate bay

Court Blocks Furniture Seller From Sending More DMCA Takedowns To eBay Over Competitor's Furniture

from the dmca-that-wicker dept

It's no secret that the DMCA can be used as a form of censorship and anti-competitive practices. Thankfully, at least some judges are catching on. Evan Brown has the story of how Zen Path, a company that sells furniture online, had been sending DMCA takedowns to eBay, after noticing competitor Design Furnishings selling very similar wicker furniture on eBay. It turns out that both sellers had the same Chinese supplier. It did appear that Design Furnishings may have used Zen Path's photos for its sales, but later removed them. Where things got bizarre is that the company then claimed that Design Furnishings violated Zen Path's "copyrights or patents" in selling the furniture. When Design Furnishings asked for proof of either such violation, rather than provide such proof, Zen Path first filed for a copyright registration on the design (something it apparently had not done previously) and started sending lots of DMCA takedowns to eBay (63 such notices). eBay, to protect itself from DMCA liability, took down the auctions and lowered the ratings on Design Furnishings' account, given the high number of infringement notices.

Design Furnishings sued to get a restraining order against Zen Path's DMCA takedowns, and the court issued a temporary restraining order, noting that even Zen Path, by its own arguments, appeared to realize that it had no copyright interest in its wicker furniture:

Here, defendant's applications for copyright protection claimed the works were sculptures or 3-D artwork or ornamental designs, indicating that defendant knew the limits of copyright protection. The pictures of the furniture, though, suggest that defendant impermissibly sought protection of the "industrial design" of the furniture. Moreover, the internal contradiction in the applications raises a strong inference that defendant subjectively knew it did not have a copyright infringement claim when it notified eBay. Accordingly, the court finds that plaintiff has a likelihood of success on the merits.

Furniture, as a useful item, is not copyrightable. You might be able to copyright a specific non-useful design element, but the overall furniture is simply not copyrightable. The court here is basically saying the fact that Zen Path clearly wanted to pretend that the chair was a sculpture was an indication that it knew the chairs themselves were not copyrightable, and thus filing the DMCA notices was an abuse of the DMCA.

It's pretty rare to see a court actually recognize an abuse of the DMCA, and even if this is a slightly odd case, it's certainly nice to see. You can read the full ruling after the jump.

Filed Under: copyright, dmca, furniture
Companies: design furnishings, zen path

Williams Sonoma Nastygrams Blogger Who Helps People Build Their Own Furniture

from the furniture-pirates? dept

Brad Hubbard writes "I regularly read a blog called "Knock Off Wood" -- a site where a woman teaches readers how to build various designer-looking pieces of furniture at home for a lot less. It's the best kind of "maker" site - someone who is passionate about crafting, freely sharing their passion with a community of readers and everyone learns a little something. So when Williams Sonoma, Inc (owner of Pottery Barn and West Elm among others) sent them a legal nastygram, the owner of the site was entertained more than anything."

The company is alleging both trademark and copyright violations -- though it's difficult to see either one holding up. Unfortunately the woman who runs the site decided it was easier to just cave in, but that's unfortunate. Doing so encourages more bullying. The trademark claims are ridiculous. They say that by mentioning specific product names, she's implying that "the website is somehow affiliated" with WSI. But, of course, any moron in a hurry knows that's not true. The whole site clearly states it's about making knock-off furniture. No one is going to go to this site and think it's actually affiliated with WSI, or any of the other brand name furniture companies.

The copyright claim is equally questionable. At issue is that she's using the copyrighted images of WSI's furniture as part of the blog posts about how to make that type of furniture. But that seems like it should be a clear cut case of fair use. If you run through the four factors of fair use, it's hard to see how this is infringement:

1. the purpose and character of your use
   
   The question here is if the use is somehow transformative or being used to build something new. But one of the questions usually asked in judging this factor is: "Was value added to the original by creating new information, new aesthetics, new insights and understandings?" It seems like an entire blog post around how to build that kind of furniture certainly qualifies. This one is in favor of fair use.
   
   
2. the nature of the copyrighted work
   
   Well, they're photographs, but they were used in catalogs and such, not for sale. So that would seem to, again, lend to a fair use ruling. The original purpose of the photos was that they were to be seen widely.
   
   
3. the amount and substantiality of the portion taken
   
   Indeed, it sounds like the "entire" photo was used, so you might be able to weigh this factor against fair use, but not necessarily. As we've seen in multiple lawsuits, even if you're using the entirety of the work, it can be considered fair use if the purpose is so completely different from the original -- which, in this case, is definitely true.
   
   
4. the effect of the use upon the potential market.
   
   Now, some might argue that the use here might harm the market for WSI furniture since it's teaching people how to build their own, but that shouldn't apply here. The test is for the potential market of the copyrighted work. That is, this factor should not take into account the impact on the market for the furniture itself, but just on the market for the photographs. And it's difficult to see any harm done here at all.

So going through all of that, it's difficult to see how this isn't a clear cut fair use case. Unfortunately, as mentioned, the woman didn't want to fight the legal battle and agreed to just take down the images and mentions of WSI. However, she is amused that a housewife in Alaska has brought out the legal attack dogs of a giant retailer.

Filed Under: blogs, copyright, furniture, knockoffs, makers, trademark
Companies: williams sonoma

Can A Moron In A Hurry Tell The Difference Between A Hershey Bar And A Couch?

from the yummy-cushions... dept

There are some legal decisions that just make no sense. Gunnar writes in to let us know of a story in Michigan, where a judge has ordered a furniture store to stop using a design that shows a couch being unwrapped from a candy bar. Hershey's sued the furniture company, claiming it violated their trademark on unwrapping chocolate bars: But here's the thing: even the judge admits that trademark law shouldn't apply here because it's a totally different business and there's little chance of customer confusion: "While both parties cater to the general public, there is no indication that their customers are predominantly the same. Even if their customer bases overlap to some extent ... the risk of consumers confusing a furniture outlet with a candy store, or vice versa, appears remote." Those are all things a judge says right before denying the trademark claim, but in this case, it went the other way. If a moron in a hurry isn't likely to be confused, then there's no trademark infringement. The furniture store wasn't even using the image yet -- but just had it in a contest for truck designs. At least the company hadn't spent too much money painting up all the trucks.

Filed Under: chocolate, couch, furniture, logo, moron in a hurry, trademark
Companies: hershey