May 2023 - cypherpunks - lists.cpunks.org

JPMorgan Chase and Jeffrey Epstein Were Both Involved in a Strange Offshore Company Called Liquid Funding
by Gunnar Larson 24 May '23

24 May '23

https://wallstreetonparade.com/2023/05/jpmorgan-chase-and-jeffrey-epstein-w… By Pam Martens and Russ Martens: May 24, 2023 ~ Jamie Dimon Being Sworn In at House Financial Services Committee Hearing, May 27, 2021 Jamie Dimon Being Sworn In at House Financial Services Committee Hearing, May 27, 2021 This Friday and Saturday, JPMorgan Chase’s Chairman and CEO, Jamie Dimon, is scheduled to sit for some very uncomfortable questioning in a deposition concerning what role he played in allowing his bank to serve as a vast cash conduit for Jeffrey Epstein, which enabled Epstein to perpetuate his sex trafficking of underage girls. The Attorney General’s office of the U.S. Virgin Islands (USVI) has filed a federal lawsuit against JPMorgan Chase that makes devastating charges against the largest bank in the United States. It alleges that JPMorgan Chase sat on a mountain of evidence that Jeffrey Epstein was running a child sex trafficking ring as it continued to keep him as a client; accept his lucrative referrals of wealthy clients; and provided him with large sums of cash and wire transfers to pay off victims – one of whom was a “14-year old sex slave.” The case is USVI v JPMorgan Chase Bank N.A. (22-cv-10904) in U.S. District Court for the Southern District of New York. Epstein was found dead in his jail cell at the Metropolitan Correctional Center in Manhattan on August 10, 2019. His death was ruled a suicide by the New York City Medical Examiner. The lawsuit contains deeply disturbing new information about a former top JPMorgan Chase bank executive’s close personal relationship with Epstein. The lawsuit reveals that Jes Staley, the head of JPMorgan’s Private Bank at the time, “exchanged approximately 1,200 emails with Epstein from his JP Morgan email account.” Several of the emails contained photos of young women in seductive poses and others further “suggest that Staley may have been involved in Epstein’s sex-trafficking operation.” For example, the lawsuit states the following: “In July 2010, Staley emailed Epstein saying ‘That was fun. Say hi to Snow White[,]’ to which Epstein responded ‘[W]hat character would you like next?’ and Staley said ‘Beauty and the Beast.’ ” There were other giant red flags which the bank chose to ignore as it maintained Epstein’s accounts. The complaint reveals the following: “Between 2003 and 2013, Epstein and/or his associates used Epstein’s accounts to make numerous payments to individual women and related companies. Among the recipients of these payments were numerous women with Eastern European surnames who were publicly and internally identified as Epstein recruiters and/or victims. For example, Epstein paid more than $600,0000 to Jane Doe 1, a woman who—according to news reports contained in JP Morgan’s due diligence reports—Epstein purchased [as a sex slave] at the age of 14. Like other women who received payments from Epstein, Jane Doe 1 listed Epstein’s apartments on 66th Street in New York City as her address, which should have been a red flag to JP Morgan. “Epstein and/or his associates also made significant cash withdrawals and 95 foreign remittances with no known payee. For example, Hyperion Air, Inc.—the Epstein-controlled company that owned Epstein’s private jet—issued over $547,000 in checks payable to cash purportedly for ‘fuel expenses when traveling to foreign countries.’ Additionally, between January 2012 and June 2013, Hyperion converted more than $120,000 into foreign currency. Many of these cash withdrawals either exceeded the $10,000 reporting threshold or were seemingly structured to avoid triggering the reporting requirement. This is particularly significant since it is well known that Epstein paid his victims in cash.” According to the lawsuit, none of these brazen red flag transactions were reported by the bank to the Financial Crimes Enforcement Network (FinCEN) as required by law, but were characterized internally as “reasonable, normal, and expected for the type of business or industry in which the client engages.” Staley also visited Epstein while he was serving his jail time in Florida after pleading guilty in 2008 to soliciting and procuring a minor for sex. Epstein received an outrageously cozy work-release program in that matter. Staley also made numerous visits to Epstein’s private island in the Virgin Islands. JPMorgan Chase serviced Epstein’s accounts from 1998 to 2013 – a full five years after his conviction in Florida for procuring sex with a minor and his having to register as a sex offender. Jamie Dimon’s upcoming deposition in the Epstein matter has been making headlines for more than a month. But there is another tie between JPMorgan Chase and Epstein that has received scant media attention. Jeffrey Epstein presided over a $6.7 billion offshore company as its Chairman from November 9, 2001 to at least March 19, 2007, a period during which he was later accused by the U.S. Department of Justice of committing sex trafficking crimes against minors. The company is Liquid Funding Ltd. and it had two offshore connections: it was incorporated in Bermuda on October 19, 2000 by the Appleby law firm, known for setting up offshore companies in tax havens like the Isle of Man, Guernsey, Cayman Islands, and Jersey. Liquid Funding’s investment manager was Bear Stearns Bank Plc in Dublin, Ireland – a non-U.S. regulated institution, which was later merged into JPMorgan Bank Dublin. The information came to light as a result of a database created by The International Consortium of Investigative Journalists containing files leaked in 2017 from the Appleby law firm. The trove became known as the Paradise Papers. A Securities and Exchange Commission filing by Bear Stearns, prior to its collapse in 2008, indicated that Bear Stearns owned 40 percent of Liquid Funding Ltd.’s equity but the owners of the other 60 percent remain a mystery. The ratings firm, Fitch, reported in 2006 that the company had $6.7 billion in outstanding liabilities. What those liabilities consisted of and who paid them off when Bear Stearns collapsed remains largely unknown. A Moody’s report issued in 2004 revealed that JPMorgan Chase, Bank of America and Natexis Banque Populaire extended Liquid Funding a $250 million liquidity facility. Deloitte was listed as its auditor. JPMorgan Chase is also listed as its “Security Trustee.” The large corporate law firm, Sidley Austin, was its legal counsel. We previously reached out to JPMorgan, Sidley Austin and Deloitte seeking information on how Epstein came to chair the company and requesting additional details. We did not receive a response from any of the three. Both Fitch and Moody’s credit rating agencies gave the medium-term notes to be issued by Liquid Funding a AAA-rating as well as gave it a AAA-rating as a counterparty. And, notably, both ratings agencies gave its commercial paper a Tier 1 rating, meaning that it could end up in money market funds purchased by average Americans seeking a low-risk, liquid investment. While the ratings agencies acknowledged that they understood the entity could issue up to $20 billion in various instruments, Fitch reported in 2006 that “Liquid Funding is capitalized with $37 million in drawn equity commitments and $63 million in undrawn equity commitments….” As a result of those top ratings on Liquid Funding’s paper, it ended up in two of JPMorgan’s money market funds, which held a total of $100 million, as well as in numerous other money market funds, including Wachovia’s Evergreen money market funds, which announced in mid-September of 2008, during the peak of the financial crisis, that it was bailing out three of its money market funds in order to keep them from breaking the buck. Wells Fargo purchased Wachovia a few weeks later. The amount of toxic debris that had parked itself in supposedly safe money market funds in 2008 led to unprecedented action by the U.S. Treasury, which had to step in with a guarantee plan after a run commenced when it was learned that the bankrupt Lehman Brothers had sold its instruments to money market funds. Bear Stearns collapsed in March of 2008 and was purchased by JPMorgan Chase. The report from the Financial Crisis Inquiry Commission (FCIC) detailed that the Federal Reserve Bank of New York had created a Special Purpose Vehicle called Maiden Lane LLC that used proceeds from a $28.82 billion senior loan from the New York Fed and a $1.15 billion loan from JPMorgan Chase to purchase approximately $30 billion of Bear Stearns’ toxic assets on which JPMorgan Chase wanted the Fed to bear the brunt of any losses. The FCIC report also revealed this about Bear Stearns’ accounting practices: “At the end of each quarter, Bear would lower its leverage ratio by selling assets, only to buy them back at the beginning of the next quarter. Bear and other firms booked these transactions as sales—even though the assets didn’t stay off the balance sheet for long—in order to reduce the amount of the company’s assets and lower its leverage ratio. Bear’s former treasurer [Robert] Upton called the move ‘window dressing’ and said it ensured that creditors and rating agencies were happy. Bear’s public filings reflected this, to some degree: for example, its 2007 annual report said the balance sheet was approximately 12% lower than the average month-end balance over the previous twelve months.” When the GAO report on the Fed’s bank bailouts during the financial crisis was released in 2011, it revealed that the Fed had secretly sluiced over $16 trillion in cumulative loans to both domestic and foreign banks, all linked together in a daisy chain of derivatives and off-balance-sheet toxic assets. It also showed that the Fed’s emergency bailout loans had begun in December of 2007, long before the public became aware of the banking crisis. The Fed’s emergency loans lasted until at least July 2010 according to the GAO. In addition to the publicly known support to Bear Stearns from the New York Fed, the GAO audit revealed that the Federal Reserve had provided another $853 billion in secret loans to Bear Stearns; $851 billion from its Primary Dealer Credit Facility (PDCF) and $2 billion from its Term Securities Lending Facility (TSLF). A download of the PDCF spreadsheet from the Fed shows that Bear Stearns continued to receive bailouts from the Fed until June 23, 2008. Was Liquid Funding Ltd., the entity chaired by Jeffrey Epstein, part of the Bear Stearns’ bailout by the Federal Reserve? An announcement by Moody’s rating agency on April 18, 2008 raises that suspicion. It states that “all outstanding rated liabilities” of Liquid Funding Ltd. have been “paid in full.” Moody’s explained this as follows: “…the withdrawal of the three ratings was in response to Liquid Funding’s request for withdrawal, in connection with the voluntary wind-down of Liquid Funding and following the payment and satisfaction in full of all outstanding rated liabilities of Liquid Funding. According to the Outstanding Detail Report issued by JPMorgan as of April 7, 2008 in its capacity as trustee, none of the rated debt issued under the global medium-term note program or the commercial paper note program was outstanding as of that date. Additionally, the Program Outstanding Report issued as of April 8, 2008 by the Bank of New York Mellon in its capacity as trustee showed that all transactions for which Liquid Funding was serving as counterparty have matured or been terminated.” The leaked documents from Appleby show that Liquid Funding was resurrected by JPMorgan Chase in 2011 – three years after it had purchased Bear Stearns. According to the leaked documents, Liam MacNamara became Chairman of the Board of Liquid Funding on September 27, 2011 with an address of JPMorgan Bank Dublin Plc, 1 George’s Dock, Dublin, Ireland. According to the 2011 annual report of JPMorgan Bank Dublin, Liam MacNamara was its CEO at the time. MacNamara had apparently survived the ax when JPMorgan purchased Bear Stearns in 2008, when he had been joint chief executive of Bear Stearns Bank Plc, part of Bear’s operations in Ireland, and the entity that was named investment manager for Liquid Funding. In March of 2019, the Irish Times reported that the JPMorgan Bank in Dublin “employs about 530 people” and had moved to new headquarters at 200 Capital Dock, with “the capacity to accommodate 1,100 workers.” The newspaper noted that Jamie Dimon was scheduled to officiate at the grand opening of the new headquarters. The bank is now called J.P. Morgan Bank (Ireland) Plc. JPMorgan Bank (Ireland) has roots dating back to 1919 and merged Bear Stearns Bank Plc in Ireland into JPMorgan Bank (Ireland). JPMorgan Chase bragged on its website in 2019 that the bank “is the only EU passported bank in the non-bank chain of J.P. Morgan and provides the firm with direct access to the European Central Bank repo window.” In June 2019, the Central Bank of Ireland fined a unit of JPMorgan Bank (Ireland) $1.8 million for myriad violations, including “failure to have adequate control systems.” Of course, when a bank has already received an unprecedented five criminal felony counts (to which it admitted guilt) from the U.S. Department of Justice, a $1.8 million fine is little more than a mild slap on the wrist.

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NYC faces restraining order from town refusing to accept buses of migrants: 'Utter lack of leadership' | Fox News
by Gunnar Larson 24 May '23

24 May '23

What does the United Nations do in New York anyway? ---- https://www.foxnews.com/media/nyc-faces-restraining-order-town-refusing-acc…

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The Fed Has a New Scandal on Its Hands: Colluding with Central Banks to Rig Libor; Evidence Is Being Tweeted Out
by Gunnar Larson 23 May '23

23 May '23

https://wallstreetonparade.com/2023/05/the-fed-has-a-new-scandal-on-its-han… By Pam Martens and Russ Martens: May 23, 2023 ~ Andy Verity's Book, RiggedThe Fed has been under non-stop scandals for the past two years. It pumped out trillions of dollars in repo loans to Wall Street’s casino banks beginning on September 17, 2019 and then made up a hokey excuse to cover up its massive bailout of banks it is incompetent to supervise. After former Dallas Fed President, Robert Kaplan, was caught trading like a hedge fund kingpin while sitting on confidential Fed information, the Fed’s Board of Governors had the audacity to refer the matter to its own Inspector General, who reports to the Fed’s Board of Governors and can be fired by it. Not surprisingly, 19 months later there’s still no word on this investigation. Then there was the President of the St. Louis Fed, James Bullard, who was caught giving a private meeting with Citigroup clients. The New York Fed has been allowed to quietly set up a second trading floor for itself near the S&P 500 futures markets in Chicago. Senator Elizabeth Warren has correctly sized up the current state of affairs at the Fed as “a culture of corruption.” The latest scandal comes courtesy of BBC correspondent Andy Verity’s new book Rigged: The Incredible True Story of the Whistleblowers Jailed after Exposing the Rotten Heart of the Financial System. The book won’t be released until June 1 but it is already being serialized in the Times U.K. newspaper and causing a major stir. After just one day of media buzz, news of the central bank plot has gone viral and there have already been calls for investigations by Parliament. The central allegation of Verity’s book is that the Fed, the Bank of England (BOE), the European Central Bank (ECB), and other national central banks in Europe, orchestrated a conspiracy during the financial crisis in 2008 to rig the interest rate benchmark known as LIBOR. As part of that conspiracy, Verity claims that central banks secretly bullied the mega banks on both sides of the pond to lower their LIBOR submissions to artificially deflate interest rates. LIBOR is the interest rate that determines what banks pay to borrow on a short-term basis from one another. Because of rigging scandals, it is being phased out and will be replaced by the Secured Overnight Financing Rate (SOFR). What is not in dispute, as Americans now know thanks to an audit by the Government Accountability Office (GAO) that was released in 2011, is that the Fed was secretly pumping a cumulative $16 trillion in below-market rate loans from December 2007 to at least July of 2010 to prop up the same global banks that were making these LIBOR submissions. If one of these mega banks made LIBOR submissions showing it was paying a much higher interest rate to borrow than other comparable banks, it would be a signal to the market that the bank was in trouble, sending its stock price plunging and making it necessary for the Fed to sluice trillions more in loans to the bank or watch it collapse. Because these mega banks were, and still are, heavily interconnected with trillions of notional dollars in derivatives, when one mega bank starts to teeter it sets off a chain reaction of contagion throughout the mega banks. During and after the 2008 financial crisis, the largest borrower from the Fed under its emergency loan programs was the teetering Citigroup. It received more than $2.5 trillion in secret, cumulative loans from the Fed according to the GAO audit. The Fed battled in Federal courts for more than two years attempting to keep the names of the banks and the dollar amount of their loans secret from the U.S. media and the public. Verity is helping move his book into the realm of bestsellers by Tweeting out titillating tidbits of evidence daily to support his claims. Before the sun came up in New York this morning, Verity had Tweeted out a link to a November 19, 2010 interview of Barclays’ trader, Peter Johnson, by two FBI agents, three investigators from the U.S. Department of Justice, three officials from the Securities and Exchange Commission and other U.S. and U.K. regulators. At line 257 on page 221 of the transcript, FBI agent Michael Kelly says this: “If we go to the first exchange here, Mr. Dearlove, [Johnson’s supervisor at Barclays] at the bottom of his first statement says ‘the bottom line is…you’re going to absolutely hate this and I’ve spoken to Spence about it as well, but we’ve had some very serious pressure from the UK government and the Bank of England about pushing our LIBORs lower.’ You’ve mentioned the Bank of England already, there is reference here to the UK government.” Johnson goes on to explain that it is his understanding that the Bank of England and the UK government were pressuring top management at Barclays to push down its LIBOR submissions. The promo for Rigged says it “picks up where The Big Short leaves off.” The Big Short was the Michael Lewis bestseller that got a Hollywood treatment. It made a handful of short sellers on Wall Street famous while revealing a different “rotten heart of the financial system” – the rigged subprime market that drove housing in the U.S. into the worst collapse since the Great Depression. A far more accurate description of Verity’s new book would be that it picks up where Nomi Prins’ 2018 book, Collusion: How Central Bankers Rigged the World leaves off. Prins comes right out and charges in the book that “G7 central bank collusion was the new black.” Prins describes the early colluding actions as follows: “According to an October 8 [2008] Fed statement released at seven in the morning, several central banks (Bank of England, Fed, European Central Bank, Sveriges Riksbank, Swiss National Bank, Bank of Canada, and Bank of Japan) announced they had ‘cooperated in unprecedented joint actions such as the provision of liquidity to reduce strains in financial markets.’ They would collude to cut rates together. It was planned and executed that way. The Fed opened the moves and cut rates by 50 basis points to 1.5 percent. “Trichet [then President of the European Central Bank] realized that he would have to succumb to collusive forces. The ECB cut rates the same day, by half a percentage point to 3.75 percent. The minimum rate on main refinancing operations of the euro system fell to 3.75 percent, on the marginal lending facility to 4.75 percent, and on its deposit facility to 2.75 percent… “Tricet’s ECB opted for another 50-basis-point benchmark rate cut to 3.25 percent on November 6. The same day, the BOE slashed its rate in one fell swoop by 1.5 percentage points, or 150 basis points, to reach 3 percent, the lowest level since 1954.” Nomi Prins Takes on Colluding Central Banks in New Book We asked Prins for her thoughts on the new information from Verity. She responded: “Given the current information coming to light, central banks colluding with each other, or with major private banks to ensure all avenues of rates were tempered, is part of this overall playbook of power reach and crisis and liquidity reactions.” Ben Bernanke was the Chairman of the Fed during this unprecedented collusion. (See our 2014 report: Fed Chair Bernanke Held 84 Secret Meetings in the Lead Up to the Wall Street Collapse.) Bernanke doesn’t fare well in Prins’ book. The author writes that “Bernanke was such a master of collusion that he made it appear as if the colluders didn’t include him but were somehow acting completely independently of the Fed’s policies and implicit or explicit directives.” In another passage, Prins writes that Bernanke “was the consummate magician. He provided the illusion of competence in his orchestration of global monetary policy collusion – so long as no one looked behind the curtain.” Verity also profiled his book at the BBC yesterday. In his article, Verity reveals a smoking gun involving the poster boys for crony capitalism: JPMorgan Chase and the New York Fed. (See our report: These Are the Banks that Own the New York Fed and Its Money Button.) Verity shares this about that 2010 FBI interview with Johnson, the trader from Barclays: “Mr Johnson also pointed investigators to a below-market offer in the dollar LIBOR market in New York made by JPMorgan Chase in late October 2008. “Interviewing him in November 2010, the US regulator confirmed it had seen data that Chase New York had offered to lend at 4.68% — while putting in a LIBOR estimate of the cost of borrowing dollars that was much lower — at 3.25%. “Mr Johnson said he believed the offer to lend at a rate still far below the market, mid-crisis, when other lenders were refusing to lend any cash, was done at the urging of the Federal Reserve Bank of New York.” In yesterday’s article at the BBC, Verity seems very sympathetic to those 37 traders that were prosecuted for rigging LIBOR. He appears to believe that the traders were innocent because the central banks were also rigging LIBOR. We’ve yet to see his evidence in that regard, but we are acutely aware that in some cases there was substantial evidence showing that the traders were rigging rates to benefit their own or the firm’s trading positions, thus helping their own bonuses and profits for their bank. In other words, two agendas were simultaneously taking place: the central banks had an agenda to preempt mega banks collapsing by artificially pushing down LIBOR rates and, at least some traders, were motivated by greed. In the case of UBS and Citigroup trader, Tom Hayes, who was prosecuted and served five years in prison, there was a boatload of evidence that he was moving rates to benefit his and his firm’s trading positions – not because he was pressured to push rates down to appease a central bank. In fact, in some cases, he was pushing rates up, not down. As we previously reported: The Tom Hayes case is a textbook example of how to bring a market rigging case. The Justice Department prosecutors had reams of chat room messages where Hayes requested other traders to move Libor in a specific direction in order to make profits for himself and UBS, the global bank where he worked. The unit of UBS that was involved, UBS Japan, pled guilty to felony wire fraud and admitted its role in manipulating Libor. UBS paid more than $1.5 billion to settle the charges with prosecutors and regulators in the U.S., the U.K. and Switzerland. UBS is represented by legions of lawyers from the most prestigious law firms around the world. Does anyone really think it paid $1.5 billion when its traders did nothing wrong? On December 19, 2012, when the Justice Department first unsealed its criminal complaint against Hayes and Roger Darin, another UBS trader, it explained the case as follows: “Beginning in September 2006, UBS Japan and Hayes orchestrated a sustained, wide-ranging and systematic scheme to move Yen LIBOR in a direction favorable to Hayes’ trading positions, defrauding UBS’ counterparties and harming others with financial products referencing Yen LIBOR who were unaware of the manipulation. Between November 2006 and August 2009, Hayes or one of his colleagues endeavored to manipulate Yen LIBOR on at least 335 of the 738 trading days in that period, and during some periods on almost a daily basis. Because of the large size of Hayes’ trading positions, even slight moves of a fraction of a percent in Yen LIBOR could generate large profits. For example, Hayes once estimated that a 0.01 percent movement in the final Yen LIBOR fixing on a specific date could result in a $2 million profit for UBS. “According to the charging documents, UBS Japan and Hayes employed three strategies to execute the scheme: from November 2006 through September 2009, Hayes conspired with Darin and others within UBS to cause the bank to make false and misleading Yen LIBOR submissions to the BBA [British Bankers Association]; also, Hayes caused cash brokerage firms, which purported to provide market information regarding LIBOR to panel banks, to disseminate false and misleading information about short-term interest rates for Yen, which those banks could and did rely upon in formulating their own LIBOR submissions to the BBA; and Hayes communicated with interest rate derivatives traders employed at three other Yen LIBOR panel banks in an effort to cause them to make false and misleading Yen LIBOR submissions to the BBA. “As alleged in the charging documents, Hayes, Darin and other co-conspirators often executed their scheme through electronic chats. On Nov. 20, 2006, for example, Hayes asked a UBS Yen LIBOR submitter who was substituting for Darin, ‘hi . . . [Darin] and I generally coordinate ie sometimes trade if ity [sic] suits, otherwise skew the libors a bit.’ Hayes went on to request, ‘really need high 6m [6-month] fixes till Thursday.’ The submitter responded, ‘yep we on the case there . . . will def[initely] be on the high side.’ The day before this request, UBS’s 6-month Yen LIBOR submission had been tied with the lowest submissions included in the calculation of the LIBOR fix. Immediately after this request for high submissions, however, UBS’s 6-monthYen LIBOR submissions rose to the highest submission of any bank in the contributor panel and remained tied for the highest, precisely as Hayes had requested. “Another example of such an alleged accommodation occurred on March 29, 2007, when Hayes asked Darin, ‘can we go low 3[month] and 6[month] pls? . . . 3[month] esp.’ Darin responded ‘ok’, and the two had the following exchange: Hayes: what are we going to set? Darin: too early to say yet . . . prob[ably] .69 would be our unbiased contribution Hayes: ok wd really help if we cld keep 3m low pls Darin: as i said before – i [don’t] mind helping on your fixings, but i’m not setting libor 7bp away from the truth. . . i’ll get ubs banned if i do that, no interest in that. Hayes: ok obviousl;y [sic] no int[erest] in that happening either . . . not asking for it to be 7bp from reality anyway any help appreciated[.] Hayes received the help he requested. “In addition, the criminal complaint charges Hayes with colluding with a trader employed at another LIBOR panel bank in May 2009, in violation of the Sherman Antitrust Act. Hayes allegedly engaged in the collusive scheme to fix the price of derivative instruments whose price was based on Yen LIBOR. In electronic chats, Hayes asked the trader to move 6-month Yen LIBOR up due to a ‘gigantic’ position Hayes had taken. For the trade in question, UBS trading records confirmed that each 0.01 percent movement in LIBOR would generate profits of approximately $459,000 for Hayes’ book. The trader at the other bank responded that he would comply, and his bank’s submission moved by 0.06 percent compared to its submission the previous day, for which Hayes thanked him.”

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Children in the Horn of Africa are living through an unprecedented large-scale crisis of hunger, displacement, water scarcity, and insecurity, the UN Children’s Fund (UNICEF) said on Monday.
by Gunnar Larson 23 May '23

23 May '23

More than seven million children under the age of five remain malnourished and in need of urgent nutrition aid, and over 1.9 million boys and girls* are at risk of dying from severe malnutrition. As the region comes out of one of the worst droughts in 40 years, vulnerable communities have lost cattle, crops, and entire livelihoods over the past three years of failed rains. “The crisis in the Horn has been devastating for children,” said Mohamed Fall, UNICEF Regional Director for Eastern and Southern Africa. “Over the past three years, communities have been forced to take extreme measures to survive, with millions of children and families leaving their homes out of pure desperation in search of food and water. This crisis has deprived children of the essentials of childhood – having enough to eat, a home, safe water, and going to school.” Deadly consequences While the rains postponed the worst, they have also led to floods, as the extremely thirsty ground is unable to absorb large quantities of water, leading to further displacement, increased risk of disease, livestock loss and crop damage. In Somalia, the rains have caused floods that have damaged homes, farmland, and roads, as well as washed away livestock and led to closures of schools and health facilities. Initial estimates indicate that the flash and riverine floods across the country have affected at least 460,470 people, of whom nearly 219,000 have been displaced from their homes mainly in flood-prone areas, and 22 killed. Floods have also caused widespread destruction and displacement in several regions of Ethiopia. The flooding has deepened the vulnerability of populations already highly affected by the drought as the areas hit hardest by flooding and drought overlap. The floods have also worsened health risks, including cholera, with the current outbreak among the longest ever recorded in Ethiopia. “The rains have brought some relief and hope, but also new threats, and recovery doesn’t happen overnight,” said Mr. Fall. “It takes time for crops and herds to grow again, for families to recover from years of hardship. That’s why continued support is still critical.” Domino effect Across the region, 23 million people are facing high levels of acute food insecurity in Ethiopia, Kenya, and Somalia. The number of severely malnourished children seeking treatment in the first quarter of this year remains much higher than last year and will likely remain high for quite a while. On top of nutrition needs, extreme weather, insecurity, and scarcity have also had devastating consequences for women and children, worsening the risk of gender-based violence (GBV), sexual exploitation and abuse. A path to recovery Major outbreaks including cholera, measles, malaria, and other diseases are ongoing across the region, worsened by extreme weather conditions and fragile health systems. Food prices remain high in local markets, burdening children, and families. The climate crisis is compounding the severity of the situation, worsening mass displacement, malnutrition, and disease. Mr. Fall underlined the need for greater funding. Thanks to donor support, UNICEF was able to provide services for the prevention of malnutrition to over 30 million children and mothers in 2022. “This year, further flexible funding will not just help children recover from a crisis of this magnitude, but also go towards developing more resilient, sustainable systems for children in the region, that can withstand future climate impacts and other shocks,” he said. “With the extreme weather cycles that we see today in the Horn of Africa, the next crisis may hit before children and families have had a chance to recover,” he added. https://news.un.org/en/story/2023/05/1136927?mkt_tok=Njg1LUtCTC03NjUAAAGL50…

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Cryptocurrency: US Pres Candidates Ramaswamy and Kennedy, Head To Head In Support Of Crypto, Vote Crypto 2024
by grarpamp 23 May '23

23 May '23

Ramaswamy (R) and Kennedy (D) have both announced strong support of cryptocurrency, including accepting crypto donations for their campaigns. Commentaries found on the usual channels. Rest of US Democrats mostly against crypto, with plenty of toxic anti-Cryptos among them. Rest of US Republicans more or less for crypto, with a handful of quite well informed and supporting advocates among them. VOTE CRYPTO IN 2024.

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Cryptocurrency: "Third World" Crypto Hotspots Becoming Hotter Supporters, No Regulators, El Salvador
by grarpamp 23 May '23

23 May '23

Strike relocates global HQ to El Salvador. Coinbase opens shop in the islands. StKitts and elsewhere adopting BCH. And more... USA best let crypto develop and run free to its advantage, else it will lose to those who do, and will ultimately be left behind in the stone age of legacy finance, while others run P2P Freedom rings around them at the speed of light.

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Re: [tor-relays] PSA: Tor 0.4.5 reaches end of life (EOL) on 2023-02-15
by grarpamp 23 May '23

23 May '23

On 1/23/23, Georg Koppen <gk(a)torproject.org> wrote: > the 0.4.5 series is going EOL There are multiple good reasons NOT to do this arbitrary thing. Is the Tor Project Incorporated (TPI) ever going to unbrick all its comms channels so that users and everyone else can freely see and talk about such tor things and more, or will TPI continue to mass censor tor threads, including this one, off all its fora. "Tor Stinks -- NSA, vulns known since before 2012" Fuck your cowardly censorship. And stop putting tor users at risk.

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RE-RANKING THE FINTECH LOGOS
by Gunnar Larson 22 May '23

22 May '23

Check out this link for a cool ranking of 'fintech' logos! https://workweek.com/2023/05/22/re-ranking-the-fintech-logos/ 22 MAY 2023 | FINTECH RE-RANKING THE FINTECH LOGOS BY ALEX JOHNSON Last summer, I published a ranking of the 25 best fintech logos. I was on vacation that week, and I was just looking for something light and fun to run while I was out. Little did I know that the rankings would generate more controversy, by far, than anything I’ve ever published. Founders and marketers with logos that were ranked low (or not at all) got MAD. Founders and marketers with logos that were ranked highly acted like they’d won an Academy Award. It was honestly bizarre. And I learned two things – rankings evoke strong feelings (regardless of how silly or obviously subjective they are), and logos are founders’ babies (and implying that anyone’s baby isn’t perfectly beautiful is a dangerous thing to do). I’m out on vacation again (well, not vacation precisely, but you get what I mean), so we’re doing this once more, but with a twist. I have asked my Workweek colleague Ari Murray to re-rank the fintech logos. If you don’t know who Ari is, you’re missing out. She is the VP of Growth at Sharma Brands and the author of the fabulous newsletter Go-To-Millions. She has extensive experience as a GTM operator, launching and growing some of the biggest brands in the world. She has great taste. And, perhaps most importantly, she has a healthy indifference towards fintech. She’s the perfect person for this job. A couple of quick reminders before I hand it over to Ari: This list is silly and entirely subjective. It is not meant to be taken seriously. Don’t get mad! We truly believe, here at Fintech Takes, that every baby is beautiful. This ranking is not a commentary on the companies themselves. Terrible companies can have magnificent logos and vice versa. This is mostly a re-ranking of the 30 logos I originally ranked (the 25 best + 5 honorable mentions). There are a few newcomers and a few logos that got bumped. Don’t read anything into this. For each logo, I asked Ari to guess what the company does, based solely on the logo. She knew a few of them, but mostly she guessed, and her guesses are hilarious. OK, deep breath, here we go! Honorable Mentions #32: Chime What do you think? I f’ing hate this logo. My least favorite thing on this planet is when a company uses the trademark icon within every lock up of their logo. Chime, with peace and love, we’re not ripping you off, and you do not need to protect this logo with such vigilance. What do they do? Based on the logo, chime sends investment reminders. IDK. I can’t tell at all – probably distracted by the weird m and the trademark. #31: Lili What do you think? The blue is hurting my eyes. Holy HEX CODE. It also looks like a free Adobe Font or the logo of a suburban boutique. What do they do? Based on the logo, Lili is for the investing novice. Investing made uncomplicated. #30: MoneyLion What do you think? TwoWord logos with no spaces and a capitalized first letter are never going to rank highly with me. Also, minus points for the trademark symbol. I do like the little lion. And I like the colors. Still not happy with this. What do they do? Based on the logo, I think this is international market tracking? #29: Plaid What do you think? Ouch, my eyes. I look at the symbol lockup more than I read the name of the company. That’s dumb. PLAID is too small. The symbol is too big. There are too many lines. And I have no idea what this company does – the name and the symbol really aren’t helping. What do they do? Based on the logo, PLAID is a Fintech company, lol? #28: Spinwheel What do you think? 1 too many colors. There is entirely too much going on, don’t you think? What do they do? Based on the logo, I think this is somehow on the blockchain – the NFT side lol. #27: Remitly What do you think? Could this be any less fun? The handshake feels more like a grip than a shake. I absolutely hate this. Like the blue though. What do they do? Based on the logo, this is refinancing but somehow modernized? #26: Alloy What do you think? Powerful font. Powerful use of ALL CAPS. The extra lines in the icon are slightly overwhelming (but I’m easily overwhelmed, so take that with a grain of salt). What do they do? Based on the logo, this is HR related. Cool HR. The Top 25 #25: Moov What do you think? This logo reminds me of Oatly. I am sure that is NOT what they were going for. I also read it as moo-v. Like I just moo’d as I said that. What do they do? Based on the logo, this is a VC that invests in ranching. #24: Zeta What do you think? Not to be mean, but this looks pre-rebrand. The colors are nice, as is the name, but the symbol triggers WordArt memories for me. What do they do? Based on the logo, I’m going to guess retirement planning is somehow involved. #23: Sardine What do you think? This couldn’t be more literal. Sardines are also polarizing. So, bold choice. The fish symbol leans into the whole schtick a little too hard, no? What do they do? Based on the logo, this is related to the food industry in some way which I don’t know how that ties into Fintech, but why is this so fish-oriented otherwise? #22: Current What do you think? Feels fancy, but somehow I know it isn’t. It’s trying hard. I hope it is called current – I’m reading it as current, but parts of the letters have been hacked away, so hard to say. What do they do? Based on the logo, this is somehow tracking the stock market in real time? #21: Public.com What do you think? .com is always hard for me. I use public.com – but I use their mobile app. So, I absolutely hate the name and therefore hate the logo because I don’t use the .com version, and so it feels stupid. The font is clean, but the symbol makes no sense to me – 2 circles. I also use this, and it makes no sense. What do they do? public.com is easy (fool-proof) investing for the newbie (me). #20: Aspiration What do you think? This is trying too hard. Every letter except for the s is working overtime. I like the i’s, though. What do they do? Based on the logo, this is somehow at the intersection of fintech and the medical industry. #19: Copilot What do you think? Clean. Predictable. Pleasant. We’re not winning any design competitions, but we’re not losing any fans, either. What do they do? Based on the logo, I’d guess we were a fund of some sort. #18: SoFi What do you think? I do not like such a muted grey with such a bright blue – I’d prefer a black instead of the grey. The font is again a little skinny, I’d like to give it a snack. What do they do? SoFi is combined finances, so you can just use one app. #17: Sundae What do you think? Marching to its own drum! LOVE LOVE LOVE THE FONT. Really different than all 32 other options. A happy logo. That said, no idea what this is – no indication that this is related to fintech, and doesn’t feel “serious” enough. What do they do? Based on the logo, this is tied into design in some way – I have no idea. UGH. THIS IS HARD!!! #16: Hummingbird What do you think? I can’t think of one thing bad to say. Or one thing nice. I feel entirely neutral. Maybe the bird could look a little more friendly? I think if it were chunkier, I’d feel better about it. What do they do? Based on the logo, I’d guess this was a high-yield savings account. #15: Wise What do you think? (Editor’s note – Wise changed their logo fairly recently, so Ari got to compare the previous version to the new one. She moved it up 8 spots!) I still have absolutely no idea what they do. I really love the chance they made to the S. The color helps big time, but the S absolutely SINGS. The previous S was snake inspired, which can’t be good for $. What do they do? Based on the logo, this is long-term retirement planning related. #14: Column Tax What do you think? I want to delete out like 10 pixels between these words + the symbol. Column Tax would be so much more lovely than Column Tax. What do they do? Based on the logo, this is tax related. I know I’m supposed to guess these in more detail, but I genuinely have zero idea, which I’m sure you can tell. Sigh. #13: AngelList What do you think? The best name, but could use a space in-between the words, but can’t go back and rename the company, now can we? The peace sign feels random – if we’re going for a cheesy symbol, use angel wings? What do they do? AngelList is angel investing – a place for deal sheets, wired money, quarterly updates, tax forms, and tracking your portfolio. I know I clearly don’t know a ton about fintech, but I do know a lot about tech tech and am a proud angel! #12: Albert What do you think? THIS HAS TO BE AI RELATED. The little bow tie to make Albert seem like a real (non-robot) type of thing. What do they do? Based on the logo, this is AI-powered investing. #11: Pinwheel What do you think? I like this more than I should. It’s pretty simple – but that blue HEX is somehow friendly. The name is also fab. I genuinely have ZERO IDEA WHAT THIS DOES THOUGH. The logo and the name aren’t teaching me, but that’s okay because look at that BLUE! 😍 What do they do? Based on the logo, I think this is a high-yield savings account. #10: Human Interest What do you think? Love the navy instead of black. the little play on the i is fun (for fintech, lol). What do they do? Based on the logo, I think this is 401K / HR vibes. #9: Nova Credit What do you think? The colors work nicely together. Grey and navy aren’t coupled enough. The ALL CAPS are also nice. The font is too skinny for me, but hey, I’m picky. What do they do? Based on the logo, I’d guess this was cloud-based home loans (whatever that means). #8: Square What do you think? The name is perfect. The logo makes sense. Are we rocking the boat? No. Is it crisp and clean, and do I use it daily? Yes. I’m an ecomm girl – you can’t sneak Square past me! Minus points for no use of color. What do they do? I know what this is; it’s invoicing meets POS meets a small business’s best friend. #7: Ramp What do you think? BEST FONT OF THE DAY. The symbol is a touch too literal, but better than the other way around. I love the font – have I mentioned that? What do they do? This is a business credit card. #6: Acorns What do you think? what a font!!! what a cute little acorn! i like the color, but can’t stare at it for too long. notice the lowercase i’m using? trying to respect their taste! What do they do? based on the logo, i think this is a venture fund. #5: Robinhood What do you think? I LOVE THE SYMBOL. The feature reminds me of the Robin Hood we all grew up with – who steals from the rich. This doesn’t feel rich, which maybe is the point? The shade of green is hard to look at – but that feels unpretentious somehow, so I get it. What do they do? Robinhood is easy-to-use investing – the cooler public.com. #4: Jeeves What do you think? I AM IN LOVE WITH THE FONT. Feels very different than everything else and stands out in a powerful way. Really happy with this. ZERO IDEA WHAT IT IS. BUT I LIKE. What do they do? Based on the logo, this is international investing, where you hold multiple currencies. #3: Block What do you think? This is fun! Big sucker for an animation over here. I absolutely love the colors. I don’t have any complaints. Shocking, I know, lol. What do they do? Based on the logo, this is fancy investment insurance that protects your investments. LOOKS RICH. #2: Klarna What do you think? I LOVE IT. But not for the reasons you might think (this isn’t my shade of pink, thank you very much). I love it because, on a PDP (product detail page) on websites, this sticks out in a GREAT WAY. It’s a badge that is super easy to spot, and split-payment options are so important for conversion. The period at the end is a little try-hard, but again, I’m a big fan. What do they do? Klarna is split-payment and has cornered a lot of the ecomm fashion market. #1: Petal What do you think? CUTE!!! 5 colors, and I’m not overwhelmed. All are so pleasant. I am also thrilled that the P in Petal is capitalized – we’re not trying too hard, and it shows! What do they do? Based on the logo, this is a crypto wallet.

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Bored Ape Yacht Club Unregistered Trade Marks Effective Against Copycat NFTs In Californian Summary Judgment - Trademark - UK
by Gunnar Larson 22 May '23

22 May '23

https://www.mondaq.com/uk/trademark/1316138/bored-ape-yacht-club-unregister… In a significant decision for NFT content owners worldwide, the producers of the Bored Aped Yacht Club NFT collection, Yuga, have successfully used unregistered trade mark rights and claims of false designation of origin under the US Lanham Act (as well as domain name squatting claims) to obtain a summary judgment against individual defendants who had created an NFT collection pointing to, that is, reusing, Yuga's Bored Ape Yacht Club (BAYC) images (Yuga Labs, Inc. -v- Ripps, et al. 21 April 2023, CV 22-4355-JFW(JEMx), US District Court, Central District of California). This case follows the recent decision of the New York court (in the Meta-Birkin case) and the Rome court (in the Juventus case) to allow the use of registered trade mark rights to prevent others using brand names in relation to NFTs. Read more about these decisions and NFTs in general in our series The IP in NFTs. Background Yuga is the creator of BAYC, one of the world's most well-known and successful Non-Fungible Token (NFT) collections. Yuga states that BAYC NFTs often resell for upwards of hundreds of thousands of dollars, and that prominent celebrities are holders of BAYC NFTs. Yuga maintains that much of the BAYC NFT collection's value arises from their rarity because only 10,000 BAYC NFTs exist and each is entirely unique. Yuga noted that it owns no registered trade marks covering the BAYC collection, but claimed that it owns several unregistered trade marks, including "BORED APE YACHT CLUB," "BAYC," "BORED APE," the BAYC Logo, the BAYC BORED APE YACHT CLUB Logo, and the Ape Skull Logo (BAYC trade marks). Yuga said that it has used these marks since around April 2021 in connection with advertising, marketing, and promotion of its products and services nationwide and internationally through multiple platforms, including the BAYC website, NFT markets such as OpenSea, and social media platforms, such as Facebook, Instagram, and Twitter. The first defendant Ripps is a visual artist and creative designer whose works comment on what is described as the boundaries between art, the internet and commerce. From around November 2021, Ripps began criticising Yuga and the BAYC collection through his Twitter and Instagram profiles, podcasts, and cooperation with investigative journalists. Fundamental to this case, in around May 2022, Ripps, along with another, created their own NFT collection, known as the Ryder Ripps Bored Ape Yacht (RR/BAYC). The defendants' NFT collection was being promoted under the branding "Ryder Ripps Bored Ape Yacht Club" and pointed to the same online digital images as Yuga's BAYC NFT collection but used verifiably unique entries on the Ethereum blockchain. The defendants contended that this RR/BAYC collection served several purposes, including bringing attention to their criticisms of Yuga, creating social pressure demanding that Yuga take responsibility for its actions, and educating the public about the technical nature and utility of NFTs. False designation of origin and trade mark use and infringement Yuga succeeded in claims of "false designation of origin" under the Lanham Act which "prohibits the use of false designations of origin, false descriptions, and false representations in the advertising and sale of goods and services" as well as in its claims of infringement of its unregistered trade mark rights. In order to succeed under false designation of origin under the Lanham Act, "a claimant must demonstrate that: (1) it has a protectable ownership interest in the mark; and (2) the defendant's use of the mark is likely to cause consumer confusion." The defendants argued that Yuga did not own any trade mark rights in the BAYC trade marks because NFTs are intangible and as a result are ineligible for trade mark protection (not being "goods" as such). However, the California court agreed with the New York court's conclusions in the Hermes v Rothschild (Meta-Birkin) case earlier this year (see our report here) quoting the court in that case and confirming that "goods [need not] be tangible for the Lanham Act to attach". The defendants also argued that even if the NFTs were "tangible goods", Yuga could not fulfil the requirement for the marks to be used in commerce to have trade mark status. The court concluded that Yuga had used the marks "in commerce", at least because it sold 10,000 BAYC NFTs. Indeed the defendants' stated aim of producing their NFT collection, to draw attention to their perceived criticisms of Yuga, would not have been necessary had Yuga not already established significant brand recognition and goodwill from the use of the BAYC marks in commerce. The court also found that the purported licence given by Yuga to holders of its BAYC NFTs was a copyright licence only, and did not purport to confer any rights in the unregistered trade marks. Accordingly, the defendants' argument that Yuga had transferred or abandoned their trade mark rights could not succeed. Finally, the Court found that the defendants' use was likely to cause confusion. The court agreed that the Yuga marks were conceptually and commercially strong and therefore it was more likely for there to be confusion when they were used by the defendants, and in any case the marks being used by the defendants were almost identical as were the goods in relation to which the marks were being used. There was also actual evidence of confusion presented but the court felt it was not necessary to consider it, as the other factors weighed so heavily towards a finding of confusion. The damages to be awarded will be decided at trial. Defences In defence, the defendants' argued that their RR/BAYC collection is an expressive work protected under the First Amendment (the Rogers test) and/or that the affirmative defence of nominative fair use applied, because the collection was intended to be a commentary on BAYC and Yuga. The court swiftly dismissed these arguments, finding that the defendants' sale of RR/BAYC is "no more artistic than the sale of a counterfeit handbag" and so the Rogers test did not apply – in addition, fair use was not applicable because the defendants used the BAYC marks to sell and promote their own product, RR/BAYC, and not to critique the BAYC marks themselves. Cyber-squatting Yuga also raised a cause of action under cyber-squatting. The defendants had registered and used the domain names https://rrbayc.com/ and https://apemarket.com/. To succeed in the cyber-squatting claim, Yuga needed to establish that the domain names were identical or confusingly similar to their trade marks and had been registered with a bad faith intent to profit from their use of Yuga's marks. The court concluded that incorporating Yuga's marks into the domain name established this – rrbayc.com incorporating the BAYC mark and, perhaps more generously, apemarket.com incorporating Yuga's BORED APE mark and "other APE-based marks and merely adds the descriptive word market". The defendants were also found to have registered domain names in bad faith with an intent to profit. Accordingly, Yuga's claim under this ground succeeded. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Software Unfiltered: The Shifting Burdens In Computer Software Copyrightability
by Gunnar Larson 22 May '23

22 May '23

Software Unfiltered: The Shifting Burdens In Computer Software Copyrightability https://www.mondaq.com/unitedstates/patent/1316176/software-unfiltered-the-… The Federal Circuit weighed in on the test, and burdens, for showing copyrightability of "nonliteral elements" of computer software in its SAS Inst. v. World Programming Ltd decision.1 The Court affirmed a lower court ruling that SAS failed to establish copyrightability of its computer software's claimed elements after World Programing Limited ("WPL") successfully established that a substantial portion of the allegedly infringed elements are not protectable by copyright, shifting the burden back to SAS. The decision, authored by Judge Reyna with a dissent from Judge Newman, further held that, after this burden shift, SAS failed to provide evidence that individual elements of its software programming could survive an abstraction-filtration-comparison analysis as adopted in the Second, Fifth, and Tenth Circuits. I. The District Court: SAS Failed to Address the Abstraction-Filtration-Comparison Test After WPL Successfully Shifted the Burden The lower court decision arose from the Eastern District of Texas, where SAS accused WPL of infringing the copyright in the "nonliteral elements" of its software, as well as other claims that were not relevant on appeal. "Nonliteral elements" are those elements that are not written in code, including for example the "program architecture, structure, sequence and organization, operational modules, and user interface." After both parties moved for summary judgment on the nonliteral copyright infringement claims, the district court held a "copyrightability hearing" to allow the parties to argue the issue of copyrightability with supplemental briefing. The district court applied the abstraction-filtration-comparison analysis of copyrightability. Under this framework, a court first breaks down a work to its various sub-elements to individually determine the copyrightability of those elements ("abstraction"). It then removes any sub-elements that it determines are not eligible for copyright protection ("filtration"). The remaining, protected, elements are compared against the allegedly infringing software ("comparison") to make an infringement determination. Here, the district court ruled that SAS failed to provide, during the filtration step, evidence of the copyrightability of any individual element of its software. Noting that there was no clear guidance in the Fifth Circuit as to the burden of proof for the "filtration" step, the district court adopted the Eleventh Circuit's burden shifting framework. Under this framework, once the copyright holder satisfies its initial burden of copyrightability (such as through presentation of valid copyright registrations), the burden first shifts to the alleged infringer to identify and substantiate the "species of unprotectability" as to why the work is not subject to copyright protection. Then, if met, the burden shifts back to the copyright holder to establish what precise portions of the work are copyrightable. Here, the district court ruled that SAS met its initial threshold burden, and that WPL, the alleged infringer, met its prima facie burden of showing multiple sub-elements should not be eligible for copyright protection. It then concluded that SAS had not met its shifted burden to establish what specific portions were eligible. Specifically, rather than engage with the filtration analysis, SAS relied on its copyright registration (the evidence for its initial threshold burden), and arguments that the SAS system was "creative." The court ruled that this reliance on "creativity" of the arrangement of the system failed to meaningfully engage with the test or show the individual copyrightability of any elements of the SAS system. II. The Majority Opinion: The Federal Circuit Accepts the Shifting Framework and that SAS Failed to Engage with It On appeal, SAS challenged the burden shifting abstraction-filtration-analysis framework. The Federal Circuit, however, upheld it as keeping with established precedent. The Federal Circuit noted that evidence of a valid registration does not mean that every element of the work (such as the non-literal elements at issue here) is protectable. Rather, the registration creates a "rebuttable" presumption of copyrightability. The Federal Circuit found the framework adopted by the district court correctly required the copyright holder to respond to proof of uncopyrightability advanced by the defendant by identifying what specific elements of its own work are entitled to copyright. That SAS either "failed or refused to do so" proved dispositive. III. The Dissent: Judge Newman Contends the Majority Decision Rejects the Copyrightability of Nonliteral Elements. Judge Newman, in dissent, offered an alternative interpretation of the case. By her reasoning, precedent already protects the claims made by SAS for copyrightability. Specifically, this case originated in the Fifth Circuit, and in Eng'g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1341 (5th Cir. 1994) the Fifth Circuit had opined on the copyrightability of "nonliteral" elements of computer software programs generally. Judge Newman contended this previous ruling should have categorically answered the "copyrightability" question for SAS's claim without further analysis. Judge Newman argued that, rather than simply finding SAS failed to meet its burden, the majority reached an extension on the Supreme Court's decision in Google LLC v. Oracle America, Inc., 141 S. Ct. 1183 (2021), which ruled that Google's use of Oracle's Java API naming conventions constituted fair use of Oracle's copyrighted materials. There, the Supreme Court did not reach the copyrightability question, leaving open the baseline question of whether the Java API naming conventions were copyrightable in the first place. Judge Newman contends that the SAS decision incorrectly says they are not. According to Judge Newman, "[t]he existence of possible infringement defenses based on the extent of copying does not negate copyrightability of the work." Her analysis suggests the burden-shifting paradigm used by the majority where a copyright holder must prove the copyrightability of individual elements rather than relying on the selection or arrangement of elements, analogous to the precedential Supreme Court ruling in Feist, is inappropriate. This dissent would require that copyrightability and infringement be separate analyses, and the framework used by the majority calls that approach into question. Under Judge Newman's dissent, SAS would seemingly have proven copyrightability when it showed a valid copyright for its software under a selection and arrangement of literal and non-literal elements. The majority addressed Judge Newman's dissent in its opinion, specifically finding "a key step prior to engaging in an infringement analysis is to determine which elements of the asserted material are copyrightable," also citing Eng'g Dynamics, Inc. v. Structural Software, Inc. which held "[t]o establish copyright infringement, a plaintiff must prove ownership of a valid copyright and copying of constituent elements of the work that are copyrightable.". Under the majority's formulation of copyrightability analysis, a copyrightability analysis for claims of non-literal software infringement is not a one-step process, and instead involves an extra step to prove not only whether a copyright is held, but whether the underlying work is entitled to copyright protection. IV. Future Implications: The Shifting Burdens of Shifting Burdens An open question is the applicability of this decision on future software copyright infringement actions involving claims of non-literal copying. It is possible the decision will represent primarily a procedural ruling that centers on the district court's use of a "Copyrightability Hearing" during pre-trial procedure and the evidence proffered by a plaintiff's expert for copyrightability. But the majority's decision in this case will likely reinforce a burden-shifting scheme in copyright infringement actions, where a copyright holder should be prepared to substantiate the copyrightability of specific elements of its copyright. The case is SAS Inst. v. World Programming Ltd., — F.4th — (Fed. Cir. 2023). Footnote 1. Typically, copyright actions are appealed to the regional circuit court of appeals, here the Fifth Circuit. This decision was appealed to the Federal Circuit instead because the plaintiff included patent infringement claims in its complaint. Even though the plaintiff appealed on only copyright issues, this granted jurisdiction to the Federal Circuit under 28 U.S.C. § 1295(a)(1).

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