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Updated 2017-08-19 01:34
The Dangerous Rise Of Unproductive Entrepreneurship
For many years now, we've talked about Andy Kessler's concept of political entrepreneurs vs. market entrepreneurs. In Kessler's telling, market entrepreneurs are the kind of entrepreneurs that people usually think about -- the ones creating startups and high growth companies and the like. While not everyone appreciates it, those entrepreneurs tend to provide a lot more to the world than they take away. They may get filthy rich in the process, but they tend to make the world a better place by creating lots of value. The "political entrepreneurs," on the other hand, are those who basically look to abuse the system to create monopoly rents and to limit competition. Those entrepreneurs may also get filthy rich, but they tend to do it by limiting value and locking it up so that only they can get it. Obviously, one of those is a lot better for society than the other.Of course, this idea certainly didn't originate with Kessler, either. Just recently, we had James Allworth on our podcast where we talked about this issue in response to an excellent article he'd recently written about how prioritizing profit over democracy was actually damaging American entrepreneurship. In that article, he referred back to the work of William Baumol, who wrote a paper back in 1990, entitled: Entrepreneurship: Productive, Unproductive, and Destructive. As you can see, that one divides entrepreneurship into three categories. Productive loosely maps to "market entrepreneurs" in Kessler's world, while "Unproductive" loosely translates to "political entrepreneurs" as well. Baumol also includes destructive entrepreneurs, who are actively making the world worse -- and getting rich off of people's misery (think drug dealers, and such).But part of the point of Allworth's article is that it feels like too many people are just focusing on "profit" as the end goal, and thus either unwilling or unconcerned with determining if the entrepreneurship that drives the profit is "productive" or "unproductive." And, now the Economist has weighed in on this issue as well, noting that we're seeing more and more unproductive entrepreneurship in America, and that's a problem. The article focuses on the work of two economists, Robert Litan and Ian Hathaway, who are building on Baumol's concepts and are concerned about where things are heading. One interesting thing: they find that the issue can't be neatly put into the category of "too much regulation" or "too little regulation," but rather find that both of those situations can create the same rise in unproductive entrepreneurship:
Contractor Exposes Personal Information Of 1.8 Million Chicago Voters On AWS
At some point, it seems clear that if Chris Vickery comes a-callin', you've screwed up when it comes to keeping the private information of customers/voters secure. Vickery works for Upguard, a cyber-security consulting firm that regularly seeks out insecure sites and works with their owners to secure them. Vickery's fingerprints have been on discoveries such as Verizon's exposure of the personal information of 6 million of its customers and a firm contracted by the GOP exposing the personal data of roughly every American voter everywhere.And now Vickery and Upguard have found that a contractor managing the city of Chicago's voter rolls appears to have exposed more personal information on an AWS server.
Because Of Course There Are Copyright Implications With Confederacy Monuments
There's no issue of public interest that copyright law cannot make worse. So let me ruin your day by pointing out there's a copyright angle to the monument controversy: the Visual Artists Rights Act (VARA), a 1990 addition to the copyright statute that allows certain artists to control what happens to their art long after they've created it and no longer own it. Techdirt has written about it a few times, and it was thrust into the spotlight this year during the controversy over the Fearless Girl statue.Now, VARA may not be specifically applicable to the current controversy. For instance, it's possible that at least some of the Confederacy monuments in question are too old to be subject to VARA's reach, or, if not, that all the i's were dotted on the paperwork necessary to avoid it. (It’s also possible that neither is the case — VARA may still apply, and artists behind some of the monuments might try to block their removal.) But it would be naïve to believe that we'll never ever have monument controversies again. The one thing VARA gets right is an acknowledgement of the power of public art to be reflective and provocative. But how things are reflective and provocative to a society can change over time as the society evolves. As we see now, figuring out how to handle these changes can be difficult, but at least people in the community can make the choice, hard though it may sometimes be, about what art they want in their midst. VARA, however, takes away that discretion by giving it to someone else who can trump it (so to speak).Of course, as with any law, the details matter: what art was it, whose art was it, where was it, who paid for it, when was it created, who created it, and is whoever created it dead yet… all these questions matter in any situation dealing with the removal of a public art installation because they affect whether and how VARA actually applies. But to some extent the details don't matter. While in some respects VARA is currently relatively limited, we know from experience that limited monopolies in the copyright space rarely stay so limited. What matters is that we created a law that is expressly designed in its effect to undermine the ability of a community with art in its midst to decide whether it wants to continue to have that art in its midst, and thought that was a good idea. Given the power of art to be a vehicle of expression, even political expression or outright propaganda, allowing any law to etch that expression in stone (as it were) is something we should really rethink.
NFL Tells ICE That Parody Shirts Are Counterfeits
For years now, we've pointed out that ICE -- Immigration and Customs Enforcement -- has this weird habit of acting as the private police force of various big sporting leagues, almost always timed to big sporting events. Every year, right before the Super Bowl, for example, ICE seizes a bunch of websites. And ICE also goes way overboard in seizing physical merchandise, even if that's at least slightly closer to its mission. But it's been painfully obvious that ICE more or less sees itself as an arm of these sports leagues, rather than employees of the US government, and thus, the public. Last year, I filed some FOIA requests about ICE seizures leading up to the Super Bowl, but had them rejected on the basis that it was an ongoing investigation.However, law professor Rebecca Tushnet is much more persistent than I am, and has been pursuing documents related to ICE seizures in the courts, and has had the court force ICE to hand over details -- including the not-at-all surprising, but still horrifying discovery that the NFL gives ICE guidance on what to seize, and it includes obvious parodies which are clearly not infringing, as they're protected by fair use. This is from the manual that the NFL provided ICE:And, sure, perhaps it's true that NFL licensed merchandise won't favor one club over or another or make derogatory use of another's marks... but it's easy to argue that this is parody and thus not infringing. Just because it's not licensed, doesn't automatically make it infringing. But the NFL doesn't care. And I guess that's not surprising that the NFL doesn't care -- but it's astounding that ICE just agrees to follow the NFL's marching orders. Because unlike the NFL, ICE should actually follow what the law says, and not what a very wealthy sports league wants to happen.As Tushnet points out in response to this:
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Two Bollywood Film Producers Get Court To Block Tons Of Sites In India, Including Archive.org
How many innocents would you accept being caught up in an action designed to nab criminals? How many good people is it acceptable to throw into jail alongside the truly bad actors? Most people would agree that any action that penalizes the innocent in order to punish the guilty is a bad course, with only truly minimal amounts of collateral damage being acceptable. Now let's port that over to internet sites and ask how many innocent websites is it acceptable to block in order to block sites that are actually engaged in undesirable behavior?Well, for the legal system in India, that question has often been answered in a cavalier manner, with regular court orders to block innocent websites being doled out to battle both terrorism and at the request of copyright holders to stop infringement. It's in the latter cases where things get really silly, with previous orders issued to block sites like GitHub and the Internet Archive. Well, it seems the Internet Archive endured this sort of thing again recently, as a court order at the request of two Bollywood film studios caught archive.org into its ISP blocking web.
Louisiana's Criminal Defamation Law Abused Again, But This Time The Gov't Gets Away With It
Louisiana has a bad law that needs to be taken off the books. (Well, it probably has several but this discussion will only deal with one.) Previous court decisions have ruled the law unconstitutional but somehow it lives on to be a vehicle of harassment by law enforcement, often at the encouragement of government officials.This would be Louisiana's criminal defamation law. This was the law (ab)used by Sheriff Jerry Larpenter of Terrebonne Parish to shut down an online critic by raiding the blogger's home and seizing several electronic devices. The target of the supposed defamation was a board commissioner -- someone who wasn't actually covered by the law, which only provides for charges when the person allegedly defamed is not a public figure.A federal appeals court recently stripped Sheriff Larpenter of his immunity for abusing this law. It stated the outcome bluntly in the first sentence of its opinion.
'Smart' Lock Vendor Locks Hundreds Out Of Their Home With Bungled Firmware Update
So we've talked repeatedly about how the real "smart" choice in the era of "smart" internet of things devices is often -- dumber technology. Whether it's your smart refrigerator or TV leaking your gmail details or viewing data over unencrypted connections, your smart car opening the door to potentially fatal attack, or your smart doorbell creating new attack vectors into your WiFi network, more often than not you're quite frankly better off with the older, less sophisticated versions of these technologies if you want the smart path toward a more secure life.The latest case in point: smart door lock vendor Lockstate managed to completely disable the smart door locks of an estimated 500 customers after a botched firmware update left customers unable to access their own properties:
As HBO Screams About GoT Episodes Leaking From A Hack, HBO Leaks Next GoT Episode Early
I love HBO's Game Of Thrones. I hate everything we have to write about it, however, because the stories are typically dumb in the usual ways that stories are dumb here at Techdirt. From HBO happily playing the evil villain in protecting the show's IP in the most overly-protectionist manner possible, to HBO screaming about the show being heavily pirated while everyone else comments about how good a thing that actually is, all the way up to the occasional overt hacking that occurs, where episodes from the show leak early, everybody freaks out, and then HBO and GoT go on to rake in tons of eyeballs and money anyway. One of these hacks just occurred, as you may know, resulting in a ransom not being paid to the hackers, who were then eventually arrested. While episode four of the current season did indeed get leaked, it wasn't the hackers who leaked it, but someone at an HBO distribution partner. So HBO screams about hacks while someone with in its own house is leaking episodes.And now it just appears to have happened again. Episode six has now leaked out and fingers are being pointed at the Spanish division of HBO itself for the leak.
EFF Pioneer Awards: Chelsea Manning, Annie Game... And Me
So here's a bit of nice news. Yesterday EFF announced this year's Pioneer Award winners, and they included Chelsea Manning, Annie Game... and me. I'm humbled to win the award -- but especially to be included with Chelsea and Annie, both of whom have gone to amazing lengths, and often sacrificed tremendous amounts, to do what they believe in to help make the world a better place. I just write about stuff. If you read Techdirt, you probably know about Chelsea Manning already -- we've certainly written about her, what she's done for this country, and the travesty of the charges and punishment she faced. Frankly, it's a joke to put me in a list with Chelsea Manning. We don't belong in the same conversation, let alone getting the same award. As for Annie Game -- you might not know the name, but she's a force to be reckoned with as well. She runs IFEX, which is on the front lines around the globe -- especially in repressive authoritarian-led countries -- fighting to protect a press that has few legal protections and standing up for free expression and access to information in very real and tangible ways (and sometimes in dangerous environments). I aspire to do work that will someday put me on a level with the things both Chelsea and Annie have done -- but in the meantime, I'm happy to share this award with them.If you have not been, the Pioneer Awards event is always a blast, so if you're in the area on September 14th, please consider coming out to the ceremony. Tickets help support EFF, and I think we all know just how much amazing work EFF has done over the years.
North Carolina Election Agencies First Learned They'd Been Hacked From Leaked Documents Published By The Intercept
At the time, the documents leaked by NSA contractor Reality Winner -- showing Russian interference in the recent election -- didn't seem to be of much importance. They showed something that had long been suspected, but also showed the NSA performing the sort of surveillance no one really disapproves of. The documents were in the public's interest, but weren't necessarily of the "whistleblower" variety.That aspect of the documents hasn't changed, but public interest in the unauthorized disclosure certainly has. In a post for Emptywheel, Marcy Wheeler takes on an NPR story about actions taken by electoral agencies as a result of the leak.
Palantir's Law Enforcement Data Stranglehold Isn't Good For Police Or The Policed
Palantir has made government surveillance big business. It's a multi-billion dollar company built mainly on government contracts. Its tech prowess and computing power have made it the go-to company for data harvesting and many of its most loyal customers are local law enforcement agencies.Mark Harris of Wired has put together a fascinating expose of the company's work with US law enforcement based on documents obtained via FOIA requests. What's uncovered does little to alter Palantir's reputation as an enemy of personal privacy. What's added to this rep isn't any more flattering: the documents show Palantir handles data carelessly, ties customers into overpriced support/upgrades, and otherwise acts as though it has to answer to no one.In one case, files marked as sensitive by a Long Beach drug squad detective were still accessible by other officers who shouldn't have had access. Multiple emails to Palantir failed to resolve the issue. Making it worse was the fact the problem couldn't be contained in-house. When agencies sign up for Palantir services, they're given heavily-discounted rates if they allow their data to be shared with other law enforcement agencies. Detectives hoping to protect sensitive sources and undercover cops from outside access were finding out their employers had signed that option away in exchange for cheaper initial pricing.That's just the beginning of Palantir problems uncovered by these public document requests:
Former FCC Commissioner Tries To Claim Net Neutrality Has Aided The Rise Of White Supremacy
When last we checked in with former FCC Commissioner Harold Furchtgott-Roth, he was rather grotesquely using the Manchester bombing to try and launch a completely bizarre attack on net neutrality over at the Forbes op-ed pages. Furchtgott-Roth, who served as an FCC Commissioner from 1997 through 2001, now works at the Hudson Institute, which not-coincidentally takes money from large incumbent broadband providers. The Hill, Forbes and other similar outlets then publish not-so-objective "analysis" from such individuals without really disclosing the money or motives driving the rhetoric.In his missive for hire last May just days after the Manchester attack, Furchtgott-Roth tried to argue that protecting net neutrality somehow aids and abets terrorism and murder:
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Crowdfunded Billboards Shame Politicians For Selling You Out On Net Neutrality
Earlier this year you might recall that lawmakers voted along party lines to kill consumer broadband privacy protections. The rules, which large ISPs whined incessantly about, were relatively basic; simply ensuring that ISPs couldn't collect or sell your personal data without being transparent about it and providing working opt out tools. The rules were only proposed after ISPs repeatedly showed they weren't able to self regulate on this front in the face of limited competition, from AT&T's plan to charge more for privacy, to Verizon getting busted for covertly modifying wireless packets to track users without consent.After a massive lobbying push, the usual loyal ISP allies like Tennessee Rep. Marsha Blackburn rushed to help free these incumbent duopolists from the terror of accountability. In response, many of these lawmakers faced a naming and shaming campaign by consumer advocacy group Fight for the Future, which crowdsourced the funding of billboards erected in their home districts clearly highlighting how they took ISP campaign contributions in exchange for selling consumer privacy down river:Of course many of those same lawmakers have, as instructed, now shifted their gaze toward supporting the FCC's plan to ignore the public and dismantle net neutrality protections. As a plan B, most of them are being prodded by ISPs to help craft a new net neutrality law. One that pretends to solve the problem, but will be written by industry lawyers to intentionally include so many loopholes as to be arguably useless. This cacophony of self-serving dysfunction again highlights how AT&T, Verizon, Comcast and Charter campaign contributions trump the public interest on a routinely grotesque scale.Hoping to piggyback on its privacy campaign, Fight for the Future has now similarly-crowdfunded new billboards shaming lawmakers that have breathlessly supported killing popular net neutrality protections. Which politicians are shamed is being determined by a congressional scorecard, which tracks just how cozy politicians are with incumbent telecom duopolies. Needless to say, Marsha Blackburn again took top honors and is being featured again in the group's latest effort:The group is hoping that this naming and shaming campaign will help shake these lawmakers' constituents out of their apparent slumber:
Aspiring Actor Forges Court Order To Delist Content, Gets Busted By Judge, Forges Court Order To Delist Article About Contempt Charges
Eugene Volokh (along with Public Citizen's Paul Levy) has made a cottage industry of sniffing out bogus/fraudulently-obtained court orders demanding the delisting of unflattering content. Much of this seemed to be the work of desperate reputation management "gurus," who had over-promised and under-delivered in the past. Abusing the DMCA process only goes so far. Sometimes you need to lie to judges to get things done.Sometimes you just need to pretend you're the judge. Convicted sex offender Abraham Motamedi forged a court order awarding himself legal fees and the delisting of content indicating he was a convicted sex offender. When called on it, Motamedi claimed he had nothing to do with it while also claiming the order was legit. These two viewpoints cannot be resolved logically. If it was legit, Motamedi would have had to appear in court to obtain them. If it wasn't legit, then assertions otherwise won't suddenly make a nonexistent case appear on a Michigan court's docket.Forgeries continue, as Eugene Volokh reports. A man who attempted to use a forged court order to vanish content from the internet appears to have doubled down.
FOIA Lawsuit Filed Over DOJ Data Complainant Is Pretty Sure Doesn't Even Exist
Benjamin Wittes of the Lawfare blog has filed a FOIA lawsuit against the DOJ, hoping to force the government to put its documents where the president's mouth is. [h/t Pwn All The Things]Back in February, President Trump made the following assertion before a joint Congressional session:
As A Streaming Future Looms, ESPN Is Damned If It Does, Damned If It Doesn't
So for years we've examined how executives at ESPN completely whiffed at seeing the cord cutting revolution coming, and personified the industry's denial that a massive market (r)evolution was taking place. As viewers were beginning to drift away from traditional cable and erode revenues, ESPN executives were busy doubling down on bloated sports contracts and expensive Sportscenter set redesigns. Only once ESPN lost 10 million viewers in just a few years did executives finally acknowledge that cord cutting was a problem, though they subsequently have tried to downplay the threat at every opportunity.The question now is how to fix that problem. ESPN's first step was to try and save costs by firing oodles of on-air talent, but not the executives that failed to navigate this sea change. That has since been followed by ESPN-owner Disney recently proclaiming it would be offering two direct to consumer streaming platforms -- one stocked with Disney and Pixar fare, and the other being a direct to consumer ESPN product. During a recent earnings call, Disney CEO Bob Iger verbalized the company's slow epiphany in the face of cord cutting:
Once Again, Rather Than Deleting Terrorist Propaganda, YouTube Deletes Evidence Of War Crimes
It really was just last week that we were discussing the problems of telling platforms like YouTube to remove videos concerning "violent extremism" because it's often tough to tell the difference between videos that many people think are okay and ones that those same people think are not. But in that post, we also linked back to a story from 2013 in which -- after getting pressure from then Senator Joe Lieberman -- YouTube started removing "terrorist" videos, and in the process deleted a channel of people documenting atrocities in Syria.It appears that history is now repeating itself, because YouTube is getting some grief because (you guessed it), it's effort to keep extremist content off its platform has resulted in deleting a channel that was documenting evidence of war crimes in Syria.
The MPAA Narrative About Piracy Flips To Danger From Pirate Sites Now That It Has Lost The Moral Argument
For years, years, the MPAA's public fight against piracy has chiefly consisted of a moral argument against it. Proclamations of the end of movies, the downtrodden future of filmmakers, and claims about piracy being equatable to outright theft were the tools of a Hollywood lobbier that itself exhibited the most underhanded sort of tactics in its attempts to get the internet to stop being the internet. It seems facile to state that this moral argument failed to find any purchase with the public, as filesharing went mainstream anyway. The reasons for this should be rather obvious: the arguments the MPAA made and the dooms it foresaw for itself and its industry were provably false. File sharing and piracy are a thing, yet movies still make gobs of money, allowing the MPAA to pay its executives the sort of handsome sums reserved for successful agencies. Still, Hollywood kept to its talking points. Piracy is wrong. Morally wrong.But it seems that even the MPAA is ready to concede that it has fully lost this argument with the public. The latest from those that worked for the MPAA appears to be that it now wants to switch narratives from a moral argument to one of public danger.
Wall Street Merger Mania Is Driving Us Toward One Single, Horrible ISP - Probably Named Comcast
Many consumers are still reeling from a Charter, Bright House Networks and Time Warner Cable merger that left users with slower speeds, worse service, and higher prices. Other broadband consumers are still struggling with a bungled Frontier acquisition of Verizon assets that left users with prolonged outages and even worse customer service than the shitshow they already enjoyed. As we've seen for decades, this kind of mindless consolidation traditionally only benefits the companies involved, particularly in a market where real competition is in short supply.This growth for growth's sake is one of the major reasons Comcast -- and its horrible customer service (which didn't scale with the company's expansion because that would have cost money) -- exists. And Wall Street's relentless thirst for growth at all costs is a major reason these companies can't simply focus on being the best "dumb pipes" possible, instead focusing their attentions on expanding into markets they have little expertise in (see Verizon's ingenious plan to hoover up failed 90s brands and pander to Millennials). When they can't succeed because they're out of their depth, they try to tilt the playing field (killing net neutrality).There's oodles of history lessons here, and there's every indication we intend to learn nothing from them. With the ink barely dry on Charter's troubled deal, and the Trump administration signaling that no merger is too big or too absurd, Wall Street analysts have been positively giddy this year pondering megamergers in telecom that had previously been unthinkable on anti-competitive or antitrust grounds. That has included heavy pushes for a Sprint acquisition of T-Mobile or a Verizon bid to buy Comcast -- the massive, obvious anti-competitive impact of both deals be damned.This week, the merger mania du jour apparently involves a plan that would involve Comcast and French-owned Altice working in concert to buy Charter Communications, whose $180 billion asking price has proven too steep for any one company to contemplate alone (Verizon made a $100 billion offer and was rejected). Citigroup has floated the idea that after acquisition, Comcast could integrate the Time Warner Cable customers they were blocked by regulators from acquiring for anti-competitive reasons, leaving us with one giant cable company to rule us all:
Impostor Sending Out DMCA Notices In Chaturbate's Name Now Targeting Techdirt URLs
A couple of weeks ago, I wrote about a long series of questionable DMCA notices I thought had been issued by online onanism portal Chaturbate. The takedown requests appeared to have been generated by a faulty algorithm with no human vetting involved. Many of those I examined appeared to target names of Chaturbate broadcasters, but without any of the precision one normally associates with the word "target." Sites named for delisting included geographical research, an Amazon page for a book about the Hadron Collider, track meet records collections, and even Chaturbate itself.After some discussion with Chaturbate, it was determined someone is filing notices in Chaturbate's name, but without Chaturbate's official blessing. The scattershot, extremely prolific approach was now harming Chaturbate's reputation, tying it to bogus DMCA notices targeting all sort of non-infringing content. (I have since updated the original post to reflect the my conversations with Chaturbate and offer my apologies for naming the wrong party in the original post.)Whoever's performing these bogus takedowns hasn't stopped. Chaturbate's legal rep has been asking Google for more details on the impostor requests. Google is looking into it, but so far has only provided an incredibly long list of likely auto-generated Gmail addresses as the source of these bogus notices, which now number into the thousands.While we continue to work towards discovering who's behind these bogus notices, there have been some interesting developments. First, the impostor is now including Techdirt URLs, including the original post and my user page, in their takedown requests.Second, whoever's doing this appears to have read my post. The issuing party has changed from Chaturbate LLC to Multi Media LLC. This is the name Chaturbate uses when it issues takedown requests. I never used the name in the updates to the post but did link to an example of a genuine Chaturbate takedown notice, as supplied to me by Chaturbate's representatives.This would seem to indicate whoever's behind the bogus takedowns is aware multiple parties are trying to expose them. The DMCA notices containing Techdirt URLs contain almost nothing but adult-themed URLs, suggesting the TD pages may have been added in an attempt to bury the story. It still could be a faulty algorithm is flagging anything containing words like "Chaturbate," but the relative lack of unrelated sites suggests a slightly more targeted approach is being taken, even though there's still an emphasis on quantity over quality.The other theory is the post hasn't been read, but the impostor has received challenges from Google when submitting notices under the Chaturbate LLC name. A little research may have uncovered the fact Chaturbate's legitimate takedown service only issues takedowns under the Multi Media LLC name.If the impostor is reading these posts, they might want to remember the perjury side of it doesn't cover the URLs targeted for takedown, but rather the assertion they represent the rightsholders listed in the notices. According to Chaturbate, this impostor doesn't. All rights are retained by each individual Chaturbate broadcaster and Multi Media LLC makes no claims otherwise when issuing takedown notices on behalf of its clients. The impostor, however, makes these claims for several performers in each takedown request and does so under the names of companies they don't work for or represent. We're still trying to find out who's behind this and will keep you posted as this investigation proceeds.
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Stories Claiming DNC Hack Was 'Inside Job' Rely Heavily On A Stupid Conversion Error No 'Forensic Expert' Would Make
While we wait for the Mueller investigation to clearly illustrate if and how Russia meddled in the last election, there's no shortage of opinions regarding how deep this particular rabbit hole goes. While it's pretty obvious that Putin used social media and media propaganda to pour some napalm on our existing bonfires of dysfunction, just how much of an impact these efforts had on the election won't be clear until a full postmortem is done. Similarly, while Russian hackers certainly had fun probing our voting systems and may have hacked both political parties, clearly proving state involvement is something else entirely.Quite fairly, many folks have pushed for caution in terms of waiting for hard evidence to emerge, highlighting the danger in trusting leaks from an intelligence sector with a dismal track record of integrity and honesty. There's also the obvious concern of ramping up tension escalation between two nuclear powers. But last week, many of those same individuals were quick to highlight several new stories that claimed to "completely debunk" Russia's involvement in hacking the DNC ahead of last year's election. The problem? These reports were about as flimsy -- if not flimsier -- than the Russian hacking theories they supposedly supplanted.In fact, these reports took things one step further by claiming that the hack of the DNC was something committed solely by someone within the DNC itself. This particularly overlong, meandering piece by The Nation, for example, claimed to cite numerous anonymous intelligence sources who have supposedly grown increasingly skeptical over the "Russian hacking narrative." Quite correctly, the report starts out by noting that while there's oodles and oodles of smoke regarding Putin's involvement in the election hacks, the fire (hard evidence) has been hard to come by so far:
FCC Begins Weakening The Definition Of Quality Broadband Deployment To Aid Lazy, Uncompetitive ISPs
You may be shocked to learn this, but like most U.S. regulatory agencies, the FCC's top Commissioner spots are occassionally staffed by individuals that spend a bit too much time focused on protecting the interests of giant, incumbent, legacy companies (usually before they move on to think tanks, consultant gigs, or law firm policy work financed and steered by those same companies). In the telecom market these folks usually share some fairly consistent, telltale characteristics. One, they're usually comically incapable of admitting that there's a lack of competition in the broadband market.Two, they go to great, sophisticated lengths -- usually via the help of economists hired for this precise purpose -- to obfuscate, modify, and twist data until it shows that broadband competition is everywhere and the market is functioning perfectly. After all, if the data shows that there's no longer a problem -- you can justify your complete and total apathy toward doing anything about it.We've seen this cycle play out time and time again, and it's a major reason most of us have shitty broadband. Under former FCC boss Michael Powell (now shockingly the head lobbyist for the entire cable industry), the FCC repeatedly proclaimed that the broadband industry was so competitive, we didn't need rules, regulations, or consumer protections governing their behavior. And when anyone provided evidence that existing providers like Comcast were little more than walking shitshows, Powell would consistently insist that these complaints were utterly hallucinated.This sort of behavior continued for a while under Obama-era FCC boss Julius Genachowski. But his successor, Tom Wheeler shocked a few people by actually acknowledging the industry wasn't competitive. Wheeler went so far as to raise the base definition of broadband to a more modern 25 Mbps, a decision the industry whined incessantly over. Why? By raising the bar, Wheeler was able to highlight how two-thirds of the country only have the choice of one broadband provider at current generation speeds.But with Ajit Pai now in charge at the FCC, we've once again returned to the regulatory policy of burying your head firmly in the sand to the express benefit of Comcast, AT&T and Verizon. In addition to Pai's frontal assault on net neutrality, erosion of broadband programs for the poor, protection of prison phone monopolies, derailing of consumer broadband privacy standards and his protection of the cable industry's set top box monopoly , Pai has begun taking steps to lower the bar when it comes to determining whether or not the country is being adequately connected.Under the Telecommunications Act, the FCC is required by law to track broadband deployment and competition and -- if things aren't up to snuff -- the agency is mandated to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market." But if you fiddle with how precisely broadband penetration and competition is measured, you can avoid having to do, you know, work to improve things. Enter Ajit Pai, whose agency this week quietly began fiddling with these determinations to the benefit of industry:
Proposed Law Would Turn US Borders Into Unblinking Eyes With A Thirst For Human DNA
Some senators are looking to turn US borders into the equivalent of London: cameras everywhere and a host of new incursions into travelers' and visitors' privacy. Cyrus Farivar of Ars Technica "outed" the not-yet-introduced bill -- titled "Building America's Trust Act" [wtf] -- since the supporting lawmakers have yet to formally announce their plans to make the US a worse country to live in, much less visit.The one-pager [PDF] for the bill [PDF] (which is 186 pages long) makes it clear what the objective is: more surveillance, more boots on the ground, and green lights for law enforcement agencies located anywhere within 100 miles of the nation's borders. The bill calls for more judges, prosecutors, law enforcement officers, and inspectors, as well as walls, levees, fences -- whatever might further separate the US from its bordering neighbors (but only the southern one, apparently).First off, there will be an increase in aerial surveillance. The bill calls for an increase in manned flight hours, as well as mandating drone flights at least 24 hours a day for five days a week. This would be in addition to increased use of surveillance equipment that can be mounted on vehicles or carried by humans. The DHS will also be allowed to draft the National Guard to perform border patrol duties and construct fences and walls and set up/monitor surveillance equipment.The list goes on and on. (And on.) Customs and Border Patrol (and any agencies assisting it) will be exempted from 30 state and federal laws governing (among other things) use of public land should it be determined these ecology-protecting statutes "interfere" with the CBP's border patrolling efforts. The bill would also exempt border security efforts from the normal federal bidding process, allowing agencies to use non-competitive means to hire employees and source contractors. The bill would also raise staffing levels, providing for signing bonuses of up to $10,000 per new hire and an expanded waiver of the CBP's polygraph test requirement.The law would allow border security agencies to obtain Defense Department surveillance gear, with an eye on round-the-clock surveillance in some form and increased gathering of biometric information. More specifically, the bill asks for this:
Saudi Government Looking To Jail More Citizens For 'Harming Public Order' With Their Religious Tweets
The internet may be an amazing communication tool, but it's also a handy way for governments to keep an eye on their citizens. Saudi Arabia uses the internet for multiple things -- mainly monitoring dissent and controlling communication.An expansive cybercrime law, coupled with longstanding statutes outlawing criticism of the official religion, have made it easy for the Saudi government to jail critics and cut off communications platforms. Bloggers have been imprisoned and encrypted services asked for technical details presumably in hopes of inserting the government into private conversations.The prosecution of speech the government doesn't like continues, as Reuters reports:
One Twitter Account's Mission To Make White Supremacists Very, Very Famous
After the ugly stain that was this past weekend, when a group of "protestors" took to the streets of Charlottesville to "protest" the removal of a statue commemorating some loser who lost a war because he was a loser, there has been an unfortunate strain of calls to crack down on speech rights of these imbeciles. It's exactly the wrong sort of reaction for a number of reasons, not the least of which is that starting down the road to relieving the rights to speech you don't like today can come back and bite you in your ass tomorrow. Our own Tim Cushing's take on how important it is to defend the speech rights of those we dislike the most is among the best I've read, but it focuses on the need to rally support for speech rights in the face of outrage. Left unsaid is at least one potential solution to the speech polution that occurrs when a bunch of race-obsessed jackwagons decide to throw a party: more speech and expression.To see one example of this in action, we can take a look at a delightful Twitter account, @YesYoureRacist, and its mission to make the sort of people that publicly expose themselves as racist very, very famous.
Techdirt Podcast Episode 134: The Problems With SESTA And Why Section 230 Matters
Recently, we've been writing about SESTA, Congress' latest attack on Section 230 of the CDA, and helping to organize a campaign against it. But there's still a lot of misunderstanding and misinformation out there regarding the bill, so this week we're joined by Daphne Keller from Stanford's Center For Internet And Society and Emma Llansó from the Center for Democracy and Technology to dig deeper into the problems with the bill and why protecting Section 230 is vital.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.
Court Says CFAA Isn't Meant To Prevent Access To Public Data, Orders LinkedIn To Drop Anti-Scraper Efforts
Some good pushback against the CFAA (Computer Fraud and Abuse Act) has been handed down by a federal court. LinkedIn, which has frequently sued scrapers under both the CFAA and DMCA, just lost an important preliminary round to a company whose entire business model relies on LinkedIn's publicly-available data.hiQ Labs scrapes LinkedIn data from users whose accounts are public, repackages it and sells it to third party recruiters and HR departments, allowing companies to track employee skills and get a read on which employees might be planning to jump ship.LinkedIn didn't care much for another business piggybacking on its data (and likely cutting back ever so slightly on the number of third parties it sells this data to), so it sued hiQ, alleging the scraping of publicly-available data violated the CFAA. This has completely backfired. hiQ has obtained an injunction preventing LinkedIn from blocking its scraping efforts. [h/t Brad Heath]In short, the court finds the hardships are all on hiQ's side: if LinkedIn blocks the scraping, the company will likely close. The decision [PDF], importantly, notes this isn't what the CFAA was put in place to guard against. It also adds that if it sided with LinkedIn's arguments, the internet itself would suffer.
The Snopes Fight Is Even Way More Complicated Than We Originally Explained
If you read our post a few weeks ago about the very messy legal fight between Snopes and Proper Media, you may recall that we spent many, many words explaining how the story was way, way, way more complicated than most in the media were portraying it. And significantly more complicated than how Snopes was portraying it. And we thought we did a pretty good job explaining all of that. Indeed, one of our commenters noted: "Wow. This couldn't possibly get any messier."He was wrong. It turns out it's even messier. And it involves accusations of tax scams and shell companies, none of which came out in the last discussion on all of this. So, buckle in.In our original story, we fact checked Snopes' claim that it was being "held hostage" by "a vendor." As we pointed out this was, at best, misleading, but the full story was hellishly complex and involved a nasty divorce, poor choices in equity structure, some poorly drafted contractual agreements and much, much more. It was not nearly as simple as saying that one party was holding the other hostage. I'm not going to repeat all of the details here (that original post was pretty damn long), but the real issue came down to the fact that the top execs at Proper Media had ended up purchasing 50% of Snopes' parent company, Bardav, due to a (very acrimonious) divorce between the two (previously) married founders. But because the company was an S Corp., Proper Media itself could not hold the shares, only individuals could. So the shares were split up between the top execs. Proper now claims that (1) those individuals were all really holding the shares on behalf of the company and (2) it accused Bardav's other shareholder, David Mikkelson, of some fairly egregious business practices and handling of corporate funds. No matter what, though, this was not a case of merely "a vendor" holding the site "hostage."The legal claim, though, felt weak -- if Proper really wanted to own the shares as a company, it should have figured out a way to do something, such as converting the company to a traditional C corp. And, indeed, so far, the case does not appear to be going Proper's way.
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Defending Hateful Speech Is Unpleasant But Essential, Even When Violence Is The End Result
A weekend full of ugliness has resulted in the predictable: calls for the government to step in and do something about "hate speech." For some reason, a bunch of people decided the removal of a statue commemorating the loser of the First American Civil War was something they simply couldn't abide with, even though the "history" they were seeking to "preserve" generally celebrates the last holdouts against the abolishment of slavery.It's not as though they were seeking to preserve history a government might feel like erasing. No one involved in the protest of the Robert E. Lee statue removal sought to build the US equivalent of the Holocaust Museum and needed the stone homage to serve an appropriate place of dishonor among the rest of the relics. This devolved into violence -- first hand-to-hand altercations, but later involving a vehicle driven directly into a crowd of counter-protesters, resulting in multiple injuries and one death.While the president issued a tepid "hate and violence are bad" statement, people all over the internet were taking this as an indication free speech in this country has gone too far. (His second statement, delivered two days later, was much better.) Predictably, those attacking entities like the ACLU (which defended the white nationalist assemblage's right to hold a protest of the statue's removal) were mainly interested in shutting down speech they didn't like, while somehow preserving the sort of the speech they did like.Glenn Greenwald has a long post at The Intercept detailing the misguided attacks on the ACLU as a result of its defense of the white nationalist protesters. As he points out, the left -- despite its reputation for tolerance of all races, creeds, colors, and sexes -- is a frequent supporter of government regulation of speech. Many on the left still cling to the mistaken belief the government has already outlawed "hate speech," when it has done nothing of the sort.Those on the right would like to see the ACLU kicked out of Constitutional discussions as well. Greenwald notes the ACLU has been similarly attacked for such things as arguing for due process rights for accused terrorists.The problem is: rights are rights. Those availing themselves of Constitutional rights usually aren't sympathetic protagonists. But it's the worst of the worst that need defending. No one starts throwing around stupid legislation when tepid, middle-of-the-road statements are made. No one fires off bogus lawsuits when unoffensive statements are delivered.Many on both sides -- right and left -- find this concept hard to grasp. Some people believe there's a legal bright line between speech and hate speech, when in most cases, it's just a subjective measurement of how much these people empathize with the disputed statements. Hypocrisy abounds. Unfortunately, hypocrisy isn't limited to the rank-and-file. Legislators are able to at least threaten serious damage to the First Amendment by writing and sponsoring bills targeting the "worst of the worst." But most are written so broadly and badly, they can't survive a constitutional challenge.Even our president partakes in the speech hypocrisy. He has threatened to open up libel laws and refers to any source of info he doesn't like as "fake news." But he still enjoys the First Amendment protections he's reluctant to extend to his opponents, even as he extols police brutality or encourages supporters to attack protesters.That the worst speech needs the most defending isn't news to anyone here at Techdirt. This point has been made repeatedly. But every time something like what happened in Charlottesville happens, the point needs to be driven home again.Some believe the curbing of speech would somehow prevent violence. But words and actions are two different things. We have plenty of laws in place to deal with assault and vehicular homicide. What we don't need is more laws regulating speech in response to criminal activity. Certainly some of the people making the nastiest statements are also perpetrators of violence. But laws that criminalize speech extend culpability from doing to simply thinking.There's a huge gap between defending someone's right to speak and defending what they're saying. As some people need to be constantly reminded, free speech is not speech without consequences. Ignorant, nasty, brutish statements deserve the criticism they receive. What they shouldn't be met with is calls for the government to step in and tell everyone what sort of speech is permitted. Those protesting the statue's removal had every right to be heard, no matter how ridiculous their arguments and beliefs.It also should be clear (but often isn't) that defending someone's First Amendment rights isn't the same thing as defending their actions. It's not even something as minimal as complicity. The ACLU stepping up to defend the white nationalist's right to assemble doesn't not make them an enabler of the violence that followed. That violence was the end result was possibly to be expected, but allowing the government to selectively revoke certain citizens' rights as a precaution isn't really the path we want to go down.Finally, there's one more point to consider when calling for the curtailment of free speech for the "worst of the worst:" it is utterly ineffective, even if it "works." Here's Greenwald:
Broadband ISP Cox Will Now Charge You $50 More To Avoid Usage Caps, Overage Fees
We've noted repeatedly how large ISPs for years have happily abused the lack of competition in the broadband market by imposing arbitrary, unnecessary and confusing usage caps and overage fees. While ISPs had tried for a while to suggest these caps were "only fair," or necessary due to congestion, repeated debunking of those excuses forced the ISPs a few years back to finally stop pretending there's any good reason for these limits.These days, ISPs don't even give coherent reasons for the limits, because they know caps are about one thing: abusing a lack of competition to raise rates and protect TV revenues from streaming video competition. More importantly, they know that thanks to this limited competition, there's nothing you can do about it either way.Cox Communications is one of several cable providers that have taken full advantage of the reduction in competition by telcos to drive up rates via usage caps and overage fees. Back in June, Cox announced it would be imposing usage caps of one terabyte, then charging users $10 for each additional 50 GB of data consumed. And this week, the company unveiled the other arm of the company's ingenious plan -- charging its users $50 more per month if users want to avoid usage caps entirely:
DOJ Goes Way Overboard: Demands All Info On Visitors Of Anti-Trump Site
Not all search warrants are bad. Indeed, most of them are perfectly legitimate, and meet the qualifications under the 4th Amendment that there is probable cause of a crime being committed, and the warrant is narrowly tailored to seek out evidence to support that. But... not always. As Ken "Popehat" White explains in a recent blog post, the Justice Department has somehow obtained the mother-of-all bad search warrants while trying to track down people who were involved in protests of Donald Trump's inauguration back in January. The government has brought felony charges against a bunch of protestors from the inauguration, and now it appears the DOJ is going on a big fishing expedition.As Ken notes, it's quite likely that some protestors committed crimes, for which they can be charged, but prosecutors in the case have decided to go ridiculously overbroad in trying to get any info they can find on protestors. They got a search warrant for the well known hosting company DreamHost, which hosts the site disruptj20.org (as an aside, the fact that a site like that doesn't default to HTTPS for all connections is really, really unfortunate, especially given the rest of this article). The warrant basically demands everything that DreamHost could possibly have on anyone who did anything on disruptj20, including just visiting. As White notes in his post, it's not that unreasonable that the DOJ sought to find out who ran the site, but now they're requesting basically everything, which likely includes the IP addresses of all visitors:
Danish University And Industry Work Together On Open Science Platform Whose Results Will All Be Patent-Free
Here on Techdirt, we write a lot about patents. Mostly, it's about their huge downsides -- the stupid patents that should never have been awarded, or the parasitic patent trolls that feed off companies doing innovative work. The obvious solution is to get rid of patents, but the idea is always met with howls of derision, as if the entire system of today's research and development would collapse, and a new dark age would be upon us. It's hard to refute that claim with evidence to the contrary because most people -- other than a few brave souls like Elon Musk -- are reluctant to find out what happens if they don't cling to patents. Against that background, it's great to see Aarhus University in Denmark announce a new open science initiative that will eschew patents on researchers' work completely:
Lawyer: Yahoo Lost Sec. 230 Immunity Because It Didn't Hand Over Personal Info; Court: GTFO
Sometimes litigants start out with a good case... or at least a credible one. Then they ruin it by getting creative. The day-to-day work of adjudicating may be a bit dry, but novel legal arguments rarely provide anything more than entertainment for bystanders.Lawyer and author Thomas Hall originally sued three individuals for alleged online harassment. According to his first complaint, Hall had drawn the ire of supposed white supremacists who bombarded him with hundreds of "threatening and disparaging emails." Hall sought a restraining order against the three defendants, but apparently needed a bit more personal info before he could get that order approved. [via Eric Goldman]That's when he got creative. Having received no help from Yahoo in identifying the people behind the alleged harassment campaign, Hall decided to sue Yahoo as well. That's when the case went from credible to WTF. From the decision [PDF]:
The Ultimate Virus: How Malware Encoded In Synthesized DNA Can Compromise A Computer System
DNA is a digital code, written not as 0s and 1s (binary) but in the chemical letters A, C, G and T -- a quaternary system. Nature's digital code runs inside the machinery of the cell, which outputs the proteins that are the building blocks of living organisms. The parallels between DNA and computer code are one reason why we speak of computer viruses, since both are sequences of instructions that subvert the hardware meant to run other, more benign programs. Wired reports on new work which brings out those parallels in a rather dramatic fashion:
Former NSA Official Argues The Real Problem With Undisclosed Exploits Is Careless End Users
As leaked NSA software exploits have been redeployed to cause computer-based misery all over the world, the discussion about vulnerability disclosures has become louder. The argument for secrecy is based on the assumption that fighting an existential threat (terrorism, but likely also a variety of normal criminal behavior) outweighs concerns the general public might have about the security of their software/data/personal information. Plenty of recent real-world examples (hospital systems ransomed! etc.) do the arguing for those seeking expanded disclosure of vulnerabilities and exploits.Former Deputy Director of the NSA Rick Ledgett appears on the pages of Lawfare to argue against disclosure, just as one would have gathered by reading his brief author bio. Ledgett's arguments, however, feel more like dodges. First off, Ledgett says the NSA shouldn't have to disclose every vulnerability/exploit it has in its arsenal, an argument very few on the other side of the issue are actually making. Then he says arguments against exploit hoarding "oversimplify" the issue.
How The DMCA's Digital Locks Provision Allowed A Company To Delete A URL From Adblock Lists
Starting late last week, there's been a bit of a fuss in various circles about a DMCA notice being used to remove a domain from one of the most prominent adblocking server lists, known as Easylist. AdGuard had a big blog post about it, as did TorrentFreak and Gizmodo. But, the whole situation is somewhat confusing, and requires understanding a variety of different things, from how adblocking works, to how certain paywalls work and, most importantly, how two separate parts of the DMCA -- the notice and takedown portions of DMCA 512 intersect with the anti-circumvention/"digital locks" provisions of DMCA 1201.So, let's dig in. The easiest bit is how adblocking works. You probably already know the basics, but it relies on listing out designated servers, and then blocking resources from those servers from loading. Pretty straightforward. Now, there's a whole industry that has grown up around being anti-adblocking (we get pitches from these people all the time, and tell them to go away, because we actually let you turn off ads directly if you want). Most of the anti-adblock solutions are annoying in one way or another, of course. One popular solution that many popular sites have started using is that they try to detect if you are using an adblocker -- and if they think you are, you're blocked from reading the content unless you disable the adblocker. We've pointed out why we think this is a dumb strategy for a variety of reasons, not the least of which being that after Forbes made people turn off its adblockers, it served up malware via its ads. Oops.Anyway, one of the companies that offers the technology for this kind of "turn off your adblocker to access this content" setup is a company called Admiral. One of the domains that Admiral apparently uses for its technology is called "functionalclam.com." You can go to the site where you'll see the following nonsense text that almost sorta kinda makes sense, but really doesn't:
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Florida City Ignores All Legal Precedent As It Attempts To Silence & Identify Mild Critic
Florida. It's always Florida. Last time it was the city of Tamarac, Florida making bogus trademark claims to try to silence a blogger. And this time, it's the city of Coral Gables (basically a part of Miami). Apparently the powers that be in Coral Gables are not fans of free speech if it involves people disagreeing with their decisions. And thus, they're willing to send completely bogus threat letters to Facebook to silence anonymous critics, followed up by filing a lawsuit against Facebook to identify them.I first came across this story thanks to Alfred Spellman, who pointed me to an article by Jessica Lipscomb about the city suing Facebook, and there have been similar stories in the Miami Herald as well. Reading those stories still left me scratching my head a bit, and part of the issue (again!) is Florida. So I've tracked down the full complaint and also emailed the city attorney filing the lawsuit with questions, as I discuss below.But first, let's back up and explain what's happening. Recently, the city decided to hire private unarmed security guards, which has created some controversy, especially with the local police who aren't happy about these interlopers. So it shouldn't have been that surprising that someone started posting on Instagram and Facebook criticizing the city. From the Miami Herald:
New FCC Broadband 'Advisory Panel' Stocked With Telecom Consultants, Allies & Cronies
On the one hand, FCC boss Ajit Pai proclaims to be a man dedicated to hard data, transparency, and closing the digital divide. But we've repeatedly highlighted how his public rhetoric is miles from his actual policies, which by and large focus on making life easier than ever for the nation's entrenched, uncompetitive broadband mono/duopolies. From gutting broadband privacy and net neutrality protections, to protecting the cable industry's monopoly over the cable box, Pai's actions consistently reveal anti-competitive intent, while his words gracefully try to imply another, artificial artifice.This stage play has apparently extended to Pai's creation of a new Broadband Deployment Advisory Committee (BDAC), which at an event earlier this year the FCC insisted would provide the agency with well-rounded input on how to improve broadband deployment:
DEA Looking To Buy More Malware From Shady Exploit Dealers
The DEA -- like other federal agencies involved in surveillance -- buys and deploys malware and exploits. However, it seems to do better than most at picking out the sketchiest malware purveyors to work with.When Italian exploit retailer Hacking Team found itself hacked, obtained emails showed the company liked to route around export bans through middlemen to bring the latest in surveillance malware to UN-blacklisted countries with horrendous human rights records. It also, apparently, sold its wares to the DEA -- an agency in a country with only periodic episodes of horrendous human rights violations.Maybe there's a shortage of exploit sellers, but it would be nice to see a US agency be a bit more selective about who it buys from, rather than jumping into the customer pool with Saudi Arabia, Sudan, and Egypt. But the DEA has done it again. Emails obtained via FOIA by Motherboard show the DEA attempting to get in bed with another questionable malware purveyor.
Funniest/Most Insightful Comments Of The Week At Techdirt
This week, following the huge overreaction of Canadian telecoms to the site TVAddons, some commenters expanded on the ways in which this is not truly about piracy. Ryunosuke was one such commenter, and his explanation won first place for insightful:
This Week In Techdirt History: August 6th - 12th
Five Years AgoThis week in 2012, we saw a couple interesting leaks. The fair use text from the TPP was made public, and we discovered (with little surprise) that the US proposals were about weakening fair use, not strengthening it. Meanwhile, a leak of MPAA documents revealed their plans to use sock puppets to smear Richard O'Dwyer, the TVShack operator that the agency was trying to extradite from the UK. And speaking of questionable extraditions, we wondered why New Zealand prosecutors were trying so hard to prevent the release of videos of the raid on Kim Dotcom's home — but were again unsurprised when some portions were released and even NZ police admitted it was "over the top".Ten Years AgoThis week in 2007, school boards were finally slowly starting to get over their fear about kids and the internet, folks were pushing hard for a ban on all the "internet hunting" that wasn't actually happening, and the New York Times was getting ready to pull the plug on its failed premium paywall experiment, TimesSelect. Meanwhile, in a display that is mostly just sad when you look back on it, Blockbuster bought Movielink from Hollywood for a pittance, hoping it could transform it into a real player in the digital media space.Fifteen Years AgoBlockbuster was at it this week in 2002 as well, finally eyeing competition from Netflix (still just a mailing subscription service at the time) and considering launching something similar, while the TV industry was fighting to try to make DVRs useless alongside the introduction of digital TV. We also enjoyed a three part series from Wired about the insane radio dominance of Clear Channel. And we took an interesting look at EULAs, which weren't quite as bad then, as evidenced by the surprise and concern over a new Windows EULA that allows Microsoft to update your system when it chooses.
Court Tells Government Sticking FOIA Waivers In Plea Agreements Is Probably A Bad Idea
Criminal defendants entering in plea agreements can waive all sorts of rights, including appeals of sentences and evidence challenges. The government trades rights for years, in the interest of securing convictions. But can someone be asked to sign away their FOIA rights? The government clearly thinks so. This is from a recent D.C. Appeals Court decision [PDF]:
Paris Olympic Committee To Consider eSports For 2024
While eSports, or competitive video gaming, has now been a thing for some time, it's rather swift rise in stature is still sprinting past milestones. Once a hobby sport relegated primarily to a few countries in Asia, eSports has since seen its inclusion in college athletics, in coverage on ESPN, and into the business models for real-life major sports leagues. If you were tracking what would be the next natural progression on the eSports legitimacy map, you wouldn't be surprised that the latest milestone reached is the consideration for making eSports a medal event in the Paris Olympic games scheduled for 2024.
Appeals Court Mostly Fixes Bad CDA 230 Ruling Over Publicity Rights
The attacks on Section 230 of the CDA are coming in all directions these days, unfortunately. Last year, we wrote about a series of troubling rulings in California that opened up the possibility of chipping away at 230's important protections of internet services. If you're new here, Section 230 says you can't blame an internet service for what a user does with that service. This should be common sense, but because people like to sue the big companies rather than the actual people doing stuff, it's necessary to stop bogus lawsuits. A little over a year ago, we wrote about one of these troubling rulings in California, where a judge ruled that publicity rights aren't covered by CDA 230.The case is pretty complex, but the very simplified version is that a "country rap" musician named Jason Cross, who uses the stage name Mikel Knight, has made a name for himself with a weird "street team" operation that travels around the country aggressively trying to get people to buy his CDs. Some of the people who were part of the street team (or possibly who knew them) weren't happy with the way Cross treated them and set up a Facebook group: "Families Against Mike Knight and the MDRST" (MDRST = Maverick Dirt Road Street Team -- which is what Cross calls the street team). Cross sued in Tennessee to try to find out who was behind the group and demand the page get taken down. He then also sued Facebook in California because why not?Facebook hit back with an anti-SLAPP motion, pointing appropriately to CDA 230. The court accepted those arguments on some of the claims, but rejected it on the publicity rights claims from Cross, saying that publicity rights are "intellectual property" and intellectual property is exempt from CDA 230. That's... wrong, basically. And the 9th Circuit has clearly said that CDA 230's exemption of intellectual property only applies to federal intellectual property law. Publicity rights are state law.Thankfully, as Eric Goldman lets us know, the California state appeals court has rejected the lower court's ruling, though for other reasons than that the lower court misunderstood CDA 230. Instead, the court ruled (also correctly) that publicity rights weren't even at issue in this case. It notes that California's publicity rights law requires the party (in this case, Facebook) to have "used" the plaintiff's identity. But that didn't happen here. In fact, the only thing argued is that Facebook put ads on these pages. That's not a publicity rights issue.
Mozilla Study: Zero Rating Isn't The Miracle Broadband Duopolies And Facebook Pretend It Is
For years now we've explored how large ISPs have (ab)used the lack of competition in the broadband market by imposing completely arbitrary and unnecessary usage caps and overage fees. But in addition to these glorified price hikes, ISPs have also long taken to exempting their own content from usage caps, while penalizing competitors -- allowing them to use this lack of broadband competition to tilt the content playing field in their favor. Incumbent ISPs have long tried to twist and distort this narrative, claiming that zero rating is the bits and bytes equivalent of a 1-800 data or free shipping.Of course that's simply not the case, and zero rating simply shifts costs around to the benefit of entrenched mono/duopolists. Since caps and overage fees are arbitrary implementations not tied to any sound, real-world economics, the consumer isn't technically really saving anything (especially in the States, where we already pay more for data than most developed nations). And because content companies are often penalized while ISPs exempt themselves, this reduction in overall competition has very real negative cost impact on the end user.This gross distortion of the market doesn't just benefit ISPs. Overseas, companies like Facebook have partnered with mobile carriers to cook up their own, poorly-received zero rating efforts, providing an AOL-esque portal to the internet stocked with Facebook-chosen content. Facebook tried to convince folks in India that it wasn't just trying to corner the international ad market, it was simply worried about the plight of the impoverished farmers.When Facebook's plan was being debated last year, Mozilla quite-correctly pointed out that if Facebook was so worried about the poor getting access to the internet, it could... you know... actually help fund connections to the actual internet. Mozilla's now back with a new study that further deflates some of the common, bunk narratives surrounding zero rating, particularly the Facebook and ISP claim that zero rating is a wonderful "on ramp to the internet" that showers immeasurable benefits upon the backs of the poor.More specifically, Mozilla and its international research partners found that zero rating isn't really an on ramp to anywhere useful:
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