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Updated 2017-12-11 04:03
Funniest/Most Insightful Comments Of The Week At Techdirt
This week, our first place winner on the insightful side came in response to the absurd trademark battle between the San Diego and Salt Lake comic conventions, where the former played some licensing games with Rose City to try to bolster its argument. Aerie simply wasn't having it, for good reason:
This Week In Techdirt History: December 3rd - 9th
Five Years AgoThis week in 2012, the ITU was holding its World Conference on International Telecommunications to try to, more or less, "fix the internet" (not that it was broken). Their ideas about speeding up infrastructure built-out were more likely to slow it down, and it was unclear who many of the new proposed rules actually covered. They rushed to approve a deep packet inspection standard in secret, then turned out to be really bad at secrecy. Amidst all this it was no surprise that Congress managed to pass a unanimous resolution telling the ITU to keep its hands off the internet.Ten Years AgoThis week in 2007, Apple (while navigating the iPhone patent minefield) was proposing a plan to make extortion an explicit part of DRM, while Nielsen was for some reason trying to become a copyright cop. Perfect 10 was losing in its attempts to blame anyone with money for infringement, rather than the infringer while the MPAA, in an instance of extremely amusing irony, was forced to take its anti-piracy kit for universities offline for violating the GPL license on code therein. This was also the week that we saw the introduction of the PRO IP Act, which would be signed into law the following year.Fifteen Years AgoThis week in 2002, file sharing was in the legal crosshairs as Morpheus and Grokster went to court. Deals site FatWallet challenged a crazy DMCA claim from Wal-Mart over posting sale prices, leading to a public outcry and, later in the week, Wal-Mart backed down. We got a good example of licensing insanity when Finnish taxi drivers were forced to pay for the music they play in their taxis, and in the least surprising news ever, analysis of broadband prices following the recent Comcast/AT&T Broadband merger showed that they were going up.
Top EU Data Protection Body Asks US To Fix Problems Of 'Privacy Shield' Or Expect A Referral To Region's Highest Court
The Privacy Shield framework is key to allowing personal data to flow legally across the Atlantic from the EU to the US. As we've noted several times this year, there are a number of reasons to think that the EU's highest court, the Court of Justice of the European Union (CJEU), could reject Privacy Shield just as it threw out its predecessor, the Safe Harbor agreement. An obscure but influential advisory group of EU data protection officials has just issued its first annual review of Privacy Shield (pdf). Despite its polite, bureaucratic language, it's clear that the privacy experts are not happy with the lack of progress in dealing with problems pointed out by them previously. As the "Article 29 Data Protection Working Party" -- the WP29 for short -- explains:
SLCC Rankles Judge With Social Media Posts As A Jury Prepares To Rule
We've been following the trademark dispute between the Salt Lake Comic Con and the San Diego Comic-Con for some time now, including all of its strange ups and downs. Despite this whole dispute starting something like three years ago, the trial itself has kept a brisk pace, with SLCC already resting its defense and jury deliberations beginning this week as well. While we'll have to wait for the jury's decision, the trial has gone pretty much as we expected. SDCC rolled out its trademark registration that it appears to have forgotten it ever had until recently from an enforcement perspective, along with some commissioned surveys suggesting that the public views the word "comic-con" as a brand and not a generic term. SLCC has pointed out that there are a ton of other comic cons out there, few of which have any licensing agreement with SDCC, and SLCC had expert witnesses poke some glaring holes in the SDCC's survey.
Did A Non-Existent Eatery In A Shed Become TripAdvisor's Top-Rated Restaurant In London?
A key feature of e-commerce sites is the reviews from people who have used them previously. Such recommendations or warnings are even more important online than in the physical world, because it is much easier to set up a virtual shop than a real one, which makes scams a far greater risk online. However, the enhanced importance of site reviews also increases the incentive to create false ones. A cautionary tale about just how misleading reviews can be is provided by an entertaining post on Vice. In it, the journalist Oobah Butler describes how he turned a non-existent eatery into TripAdvisor's top-rated London restaurant. Or at least that's what he claimed. We should admit, up front, that since this story is about faking stuff on the internet, we should at least be open to the idea that the story of this faked restaurant review might also be... fake.Butler had the idea after earning money writing fake positive TripAdvisor reviews for restaurants he'd never been to. He started to wonder how many of the other positive reviews on TripAdvisor were similarly bogus. He idly considered whether it was possible for an entire restaurant to be fake -- that is, non-existent despite all the positive reviews. And then:
Internet Censorship Bills Won't Help Catch Sex Traffickers
In the most illuminating part of last week's House subcommittee hearing on the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), Tennessee Bureau of Investigation special agent Russ Winkler explained how he uses online platforms—particularly Backpage—to fight online sex trafficking. Winkler painted a fascinating picture of agents on his team posing as johns, gaining trust with traffickers, and apprehending them. His testimony demonstrated how, with proper training and resources, law enforcement officers can navigate the online platforms where sex work takes place to find and stop traffickers, especially those trafficking children.It was a rare moment of clarity in the debate over FOSTA and its sibling bill, the Stop Enabling Sex Traffickers Act (SESTA, S. 1693). Since these bills were introduced, there's been little discussion of how law enforcement officers use the online platforms that the bills would threaten and how SESTA and FOSTA would make it more difficult for law enforcement to do its work. Winkler made it crystal clear how heavily his work relies on online platforms: "We've conducted operations and investigations involving numerous perpetrators and victims. The one constant we encounter in our investigations is use of online platforms like Backpage.com by buyers and sellers of underage sex."There are some differences between SESTA and FOSTA, but their impact on the Internet would be the same. A website or other online platform could be liable under both civil and criminal law, at both the state and federal levels, for the sex trafficking activities of its users. Since it can be very difficult to determine whether a given posting online is in aid of sex trafficking, the bills would almost certainly force websites to become significantly more restrictive in what sorts of content they allow. Many victims of trafficking would likely be pushed off the Internet entirely, as well as sex workers who weren't being trafficked.Winkler didn't show much interest in the idea of targeting online intermediaries—and neither did fellow witness Derri Smith of End Slavery Tennessee. Understandably, their focus isn't on holding Internet companies liable for user-generated content; it's on prosecuting the traffickers themselves and getting trafficking victims out of horrific situations.When Rep. Marsha Blackburn asked both Tennessee panelists what they need to successfully fight trafficking, neither panelist mentioned proposals like SESTA and FOSTA at all. They discussed more important measures aimed at finding and stopping traffickers and supporting survivors. Winkler referenced changes in state law "to make it more punishable for both buyers and sellers of sex acts with juveniles."Winkler isn't the only person who's tried to explain to Congress how law enforcement relies on online platforms to find and arrest sex traffickers. Numerous experts in trafficking have pointed out that the visibility of online platforms can both aid law enforcement in apprehending traffickers and provide safety to trafficking victims. Trafficking expert Alexandra Levy notes that the online platforms that FOSTA could undermine are the very platforms that law enforcement agencies rely on to fight trafficking:
Dear Tech Guys: HBO's Silicon Valley Is NOT An Instruction Manual
I've been living in Silicon Valley for just about twenty years at this point, and lived through the original dot com bubble (got the t-shirt, etc.). And there are a few small signs that remind me quite a bit of the "bad stuff" that started to show up in the 1999/2000 time frame, just before everything collapsed. One of the biggest issues: the carpetbaggers. Basically, as things get frothier and frothier, a "different" kind of entrepreneur starts to show up. In the original dot com bubble, these were frequently described as "MBA's" -- but as someone with an MBA degree, I find that to be a bit misleading too. There were plenty of good, smart, tech-savvy MBAs who added value to the innovation community. The real problem was the people who came to (a) get rich and (b) party (not always in that order). Getting rich and having a good time aren't necessarily bad things, but if they're what you're focused on, then bad things tend to result.Lots of people like to mock the whole mantra of "we're changing the world" in Silicon Valley, and sometimes it deserves to be mocked. But... in many cases, there is actual truth to it. And, in many cases, there are entrepreneurs and innovators who really are trying to change the world and make it a better place. The problem is that you have the other element -- the carpetbaggers -- who show up with no actual interest in innovation or in making the world a better place, but who readily adopt the terminology and slogans of those who do. And, these days, we're seeing more and more of those types of people in the Valley. It's been happening for years, but it's been getting worse and worse lately. It's why people talk about "Techbros" with dumb, but flashy, company ideas, while ignoring entrepreneurs working away at truly world-changing products and services.I've been thinking more and more about this lately, especially as a whole bunch of stories have come out in the tech world (as in so many other industries) about sexual harassment and sexual assault. And, as in so many industries, this has been an issue for a long time around here -- and often not taken seriously. Earlier this year -- before many of the bigger stories came out -- I wrote about why Silicon Valley needs to get its act together and grow the fuck up. But with many of the revelations coming out, showing how widespread the culture of harassment (and assault) has been, it's a much bigger problem.That's why this story from Bloomberg is so flabbergasting. Even after all of this, to hear that some tech companies are hiring good looking models to attend their holiday parties is just so... dumb.
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Shocker: Study Finds Cord Cutting Very Real, TV Execs Still Failing To Adapt
You'll perhaps recall that broadcast and cable executives spent years denying that TV cord cutting was even happening. Ultimately that head-in-the-ground thinking "evolved" to the point where sector executives admitted that sure, cord cutters are real, but they're little more than 40-year-old nobodies living in mom's basement -- and not something to actually take seriously. As the data began to indicate that cord cutting was a very real phenomenon that thinking has finally started to subside, though the industry by and large has responded by doubling down on the bad ideas that brought us to this point in the first place.There's still a sect of broadcast and cable executives and analysts that truly believe this shift from bloated, pricey channel bundles to cheaper, more flexible streaming alternatives is just a fad kooky kids are going through. And there's more than a few sector executives who believe this will all magically end as younger generations procreate and buy new homes. Of course that's not really supported by the facts, with most Millennials and younger generations being "cord nevers" -- who fail to see the point of subscribing to expensive bloated channel bundles in the era of YouTube and Twitch.A new report by the Diffusion Group highlights again how this isn't just some temporary hiccup in the tastes of fussy viewers. The group predicts that at the current pace of customer defections from cable, the number of US households that subscribe to traditional cable will drop from 81% this year to 60% in 2030:
India Embraces Full Net Neutrality As The U.S. Turns Its Back On The Concept
While the United States is busy giving the world a crash course on what telecom regulatory capture looks like, India is taking a decidedly different tack with net neutrality. Last year, the Telecom Regulatory Authority of India (TRAI) began laying the groundwork for some real, tough net neutrality rules aimed at protecting their internet markets and consumers from anti-competitive ISP behavior. Here in the States, our soon-to-be-discarded rules left some fairly gaping loopholes governing "zero rating," which allows ISPs to impose often arbitrary and unnecessary usage caps, then exempt their own content while hindering competitors.But when the TRAI released its net neutrality guidelines (pdf) late last month, they made it clear that the rules would not only protect against throttling, blocking, or other ham-fisted anti-competitive behavior, but would also be putting the kibosh on zero rating. In previous statements, TRAI had made it abundantly clear that ISPs consistently use artificial scarcity and usage caps to engage in anti-competitive shenanigans via this practice (a realization the FCC in the United States only made after it was too late):
Russia Says Disconnecting From The Rest Of The Net 'Out Of The Question', But Wants Alternative DNS Servers For BRICS Nations
At the start of the year, we wrote about a call for Russia to make its Internet infrastructure resistant to external attempts to shut it down, and able to work in isolation if need be. It looks like the authorities are moving ahead with the idea:
UK Court Says Company Is Innocent In Massive Data Breach Caused By Vindictive Employee, But Must Nonetheless Pay Compensation
It's well known that the EU has laws offering relatively strong protection for personal data -- some companies say too strong. Possible support for that viewpoint comes from a new data protection case in the UK, which follows EU law, where the judge has come to a rather surprising conclusion. Details of the case can be found in a short post on the Panopticon blog, or in the court's 59-page judgment (pdf), but the basic facts are as follows.In 2014, a file containing personal details of 99,998 employees of the UK supermarket chain Morrisons was posted on a file-sharing Web site. The file included names, addresses, gender, dates of birth, phone numbers (home or mobile), bank account numbers and salary information. Public links to the file were placed elsewhere, and copies of the data sent on a CD to three local newspapers, supposedly by someone who had found it on the Internet. In fact, all the copies originated from Andrew Skelton, a Senior IT Auditor in Morrisons, as later investigations discovered. According to the court, Skelton had a grudge against the company because of a disciplinary process that took place in 2013. As a result of the massive data breach in 2014, Skelton was sentenced to eight years in prison.The current case was brought by some 5,500 employees named in the leaks, who sought compensation from Morrisons. There were two parts to the claim. One was that Morrisons was directly to blame, and the other that it had "vicarious liability" -- that is, liability for the actions or omissions of others. The UK judge found that Morrisons was not directly liable, since it had done everything it could to avoid personal data being leaked. However, as the Panopticon blog explains:
Opening Statements In The Trademark Battle Of The Comic Cons, While Other Regional Cons Go Full Judas
Our regular readers will know that we've been covering the years-long trademark lawsuit between the famous San Diego Comic-Con and the Salt Lake ComicCon since the very beginning. The whole thing has been something of a saga, with the SDCC issuing various threats and filing a lawsuit, while the SLCC has managed to fumble its way through court, getting slapped around for attempting various counter-logical defenses and even getting a gag order on it temporarily, unconstitutionally barring it from talking about the case publicly.Well, the court heard opening statements in the case this past week, with the SDCC trotting out the same studies it had presented during the pre-trial motions.
Canadian ISPs And Hollywood Agree On Plan To Make Themselves Judge, Jury and Website Executioner
If you take a quick look through the long history of posts we've done on the subject of site-blocking as a method for combating piracy, you'll notice that we've been fairly critical of the courts in various countries, which are issuing the blocking orders commonly. Here in America, the story is essentially the same, with only minor differences in the laws or lack of laws between each country causing barely different legal justifications for the censorship of sites that one entertainment group or another says is infringing. Too often, the courts appear to take plaintiff claims of infringement as gospel, where in some countries there is even a governmental framework that seems perfectly designed to abuse this process and have compliant courts exert as much collateral damage as possible. Our point all along is that there needs to be a refining of this process to keep the censorship out of the results and ensure that no speech that ought to be protected is caught up in the mix.It should go without saying that the new plan being concocted by Canadian ISPs and various entertainment groups is not what we had in mind.
New York City Hotels Say Obnoxious $25 'Destination Fee' 'Improves The Customer Experience'
Taking a page from the telecom and banking sector playbooks, New York City hotels have decided to add a $25 "destination fee" just for the honor of being able to sleep somewhere near the audio visual cacophony that is Times Square. Major hotel chains like Hilton, Marriott and Starwood are all adding the new destination fees, which aren't part of the advertised rate -- and are only added to the final tally at checkout. Said fees mirror other "resort fees" used to jack up advertised rates in other destination locations like Hawaii, the Florida coast, or Las Vegas.In many instances, the fee is being called an "urban destination charge," and is being applied each day of a customer's stay:
Why I Changed My Mind On Net Neutrality
Long time readers of Techdirt may know (as I've noted several times), that in the mid-2000s when the net neutrality debate was first heating up, I was against the FCC putting in place rules to protect net neutrality. As I explained at the time, the concept of net neutrality was important, but I had so little faith in the FCC that I expected any rules it put together would cause more harm than good. I similarly argued that the fight over net neutrality was really a symptom of a larger problem (the lack of competition in the broadband market), rather than the problem in itself. I was also heavily influenced by a paper that Professor Ed Felten wrote in 2006 called Nuts and Bolts of Network Neutrality, which mostly (as the title suggests) goes through the various arguments for and against net neutrality rules. But it concludes with a position I agreed with for a while: that while net neutrality was important, actual rules that protected it would be tricky to get right -- and the "best" policy might just be the "threat" of rules should broadband providers engage in bad behavior. Thus, that threat, might prevent bad behavior, without having to put in place bad rules:
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State Board That Fined Man For Criticizing The Government Without A License Admits It Was Wrong
Earlier this year, government entities in Beaverton, Oregon got fed up with a resident's refusal to stop pestering them about problems with their traffic light timing. Mats Jarlstrom, a red light camera ticket recipient and consequential thorn in the side of local pols, tried repeatedly to get state traffic engineers to take a look at his research on yellow light timing. They refused. And they refused in a way only powerful bureaucracies can.The Oregon Board of Examiners for Engineering and Land Surveying told Jarlstrom to shut up by issuing him a $500 fine for practicing engineering without a license. It was, of course, bullshit. Jarlstrom couldn't alter traffic light timing and certainly wasn't sending in bids for government work while presenting himself as an engineer. He just wanted to talk about his research. But the state board wasn't interested in his work or his refusal to stop talking. Despite holding a bachelor's degree in electrical engineering, Jarlstrom was told he wasn't enough of an engineer to talk about subjects he'd thoroughly researched.The Institute for Justice picked up Jarlstrom's case, securing an injunction against the state board earlier this year. We're another step closer to a full resolution in this case, as the state board has finally conceded it trampled all over Jarlstom's rights in its efforts to get him to stop talking.
FCC Boss Lies Again, Insists Net Neutrality Harms The Sick And Disabled
For a decade now one major ISP talking point against net neutrality is that it hurts the sick and disabled. Verizon, for example, has tried to pretend that net neutrality rules hurt the hearing impaired because it prevents them from getting access to prioritized medical services like video relay or other technologies. Comcast has frequently trotted out this argument as well, as in an FCC filing (pdf) earlier this year claiming that net neutrality rules simply must die because they're preventing the sick and disabled from getting access to advanced telemedicine technologies:
Appeals Court Can't Decide Whether It Should Protect Critic's Anonymity, Boots Free Speech Case Back To Lower Court
A rather strange ruling has been handed down by the Sixth Circuit Appeals Court. It's a ruling that could have an adverse effect on anonymous speech, although it does mitigate the potential damage by booting it back to the lower court for a final determination. But that still might not stop an aggrieved multi-level management company from learning the identity of one of its critics.Signature Management Team is the plaintiff/pyramid scheme. John Doe posted a link to a copy of one of SMT's books on his "Amthrax" blog. SMT filed a DMCA takedown notice with the blog's hosting service, Automattic. After being served with the notice, Doe removed the link to the copyrighted instruction book.This quick concession didn't stop SMT from suing Doe. It alleged one count of copyright infringement. Doe asserted a fair use defense and alleged copyright misuse, i.e., the use of copyright to silence a critic. He also asserted his right to speak anonymously and argued against being unmasked.SMT moved to compel disclosure of Doe's identity. The district court agreed with Doe, feeling Doe had a chance to prevail with his fair use argument. It did compel Doe to reveal his identity to the court and issued a protective order preventing SMT from learning his identity.Unfortunately, Doe did not prevail in this legal battle. The court denied summary judgment to Doe, siding with SMT on its copyright infringement claim. The only thing the court ordered, however, was destruction of the infringing PDF by Doe. Doe complied. SMT, however, persisted in its arguments for unmasking. Again, the court refused to turn over Doe's information to the plaintiff, pointing out Doe had complied with the DMCA notice and court order immediately. SMT appealed.The Appeals Court weighs a lot of factors, but notes this is a question normally addressed before discovery, not after a judgment has already been rendered (mostly) in favor of the party seeking to unmask an anonymous defendant. From the ruling [PDF]:
Another Reason To Distinguish Alcohol Markets In Trademarks: Actual Infringement Defended By Use Across Alcohol Products
A brief review of all of the articles I've written in these here pages about sweet, delicious alcohol mostly have to do with trademark spats between drink-makers, including many in which I've made the point that it's high time for the USPTO to get a little more subtle when it comes to its alcohol marketplace designations. Beer isn't wine, and wine isn't liquor, and the public looking to buy one of those is quite unlikely to confuse one product for another. The focus of many of those posts was how this lack of distinction between the alcohol markets has resulted in too many aggressive trademark lawsuits and threat letters that hardly seemed necessary.But there is a flip side to all of this that serves as another perfectly good reason for the USPTO to make a change. Recently, one liquor distiller sued another in what seems like a fairly plausible trademark infringement case.
The Strange Fight Over Who Should Take John Conyers Spot Atop The Judiciary Committee
As you may have heard, Rep. John Conyers recently stepped down from his role as Ranking Member (basically top member of the minority party) on the powerful House Judiciary Committee, and this week has announced his retirement, in response to multiple accusations of sexual harassment. That has kicked off something of an interesting and important debate over who should replace him as ranking member on the Judiciary Committee.The next in line by seniority is Rep. Jerry Nadler. But right behind him is Rep. Zoe Lofgren. By way of disclosure, I'll note that I've gotten to know Lofgren over the years, and have donated to her election campaign. But even before I'd ever spoken to her, I've noted how she remains one of the few people in Congress who seems to consistently do the right thing on basically all of the issues that we care about at Techdirt. You can see our past coverage of stories involving Lofgren. Most specifically on copyright and surveillance, she hasn't just been on the right side, she's been leading the way. She is, almost single-handedly, the person who stopped SOPA from passing. She has consistently raised important issues and introduced important bills and amendments concerning copyright, NSA surveillance and the CFAA among other things.Obviously, I think she'd make a great ranking member for the Judiciary Committee (or the chair should the House flip sides in the future). So I was happy to see her recently announce her intention to run for the Ranking Member position against Nadler. Who knows if she'll actually get the position, but I found it odd that upon announcing it, she was immediately attacked by, of all places, The Intercept, which put forth a really strange article accusing Lofgren of being a Google shill. This was strange on multiple levels -- though, I get it. Lofgren gets called a "Google shill" for the same reasons that we do here at Techdirt. Because, even though we frequently disagree with Google on a variety of issues, on the whole we support many of the same policies that protect free speech and open innovation online.That's also true of Lofgren. While she's supported key policies on copyright, online speech, innovation and surveillance, she's similarly pushed back against Google quite frequently as well. She's publicly criticized the company for its lack of diversity. She's voted against a bill to expand H1-B visas that Google supported. She voted against Trade Promotion Authority (which Google stupidly supported -- as noted in one of my links above) that paved the way to moving forward on TPP. On top of that, the tech industry has mostly pushed back on CFAA reform, such as Lofgren's Aaron's Law, because companies want to have it as a tool to use against employees at times. Just recently, Lofgren has started digging into competition inssues in Silicon Valley, warning about the lack of competition and how it's a problem -- a position that, more than likely, Google finds worrisome.That's just part of why it's so odd that the Intercept, of all publications, would post this article suggesting that Lofgren doesn't belong as the ranking member on the Judiciary Committee just because she's "close" to Google. Even odder, is the fact that the authors of the piece -- two reporters whose work I've long respected, Ryan Grim and Lee Fang -- focus entirely on claiming that Lofgren is a product of Google, while ignoring anything about Nadler. Not only has Nadler been on the wrong side of many of these same key issues, if you consider Lofgren somehow tied to Google (again, incorrectly) then you would similarly have to conclude that Nadler is in the pocket of the legacy entertainment industry, and their ongoing quest to destroy the internet as we know it. If you start looking at Nadler's campaign finance situation, it sure looks like he's the MPAA and the RIAA's favorite Congressman.In the last campaign cycle, the RIAA gave significantly more to Nadler than any other Democrat. Same with Disney. Same with Sony. Same with Time Warner. Same with Universal Music. Same with the Association of American Publishers. Same with ASCAP. While Viacom gave a bit more to three other members, Nadler was the 4th highest support on the Democratic side. Comcast gave a little more to Conyers, but again, Nadler is near the top of the list. The Grammys have given more to Nadler than any other Democrat, and he repays them by holding events with them all the time.There's a pretty clear pattern here. If the legacy copyright players want something on the Democratic side, Nadler's their guy. And, maybe that doesn't matter to the Intercept. Maybe it doesn't matter that bad copyright policies that he promotes would have serious downsides to the way the internet works, to free speech and to privacy. Maybe, the Intercept has decided that any possible "connection" to Google is worse than everything else. But considering that the whole creation of The Intercept came about because of the Snowden revelations, and a key focus of The Intercept is to report on the evils of government surveillance, it's kind of surprising that it would publish an article promoting Nadler over Lofgren while ignoring that Nadler has not always been a close friend of surveillance reform. It's true that he's sponsored some reform efforts, including the USA Freedom Act, but just last month he was seen voting against an important amendment brought forth by Lofgren, to end backdoor searches in the ongoing effort to reform Section 702.So it seems odd that the Intercept is effectively arguing that Nadler would make a better ranking member on Judiciary, even as Lofgren has a stronger record on stopping government surveillance, just because some (falsely) believe that Lofgren is "tied" to Google. And, at the very least, if they're going to tar Lofgren because her views sometimes align with Google's, it seems that it could at least treat Nadler equally by looking into his close connections with the legacy entertainment business.
Snopes Debunks Fake YouTube Video; Video's Creator Responds With A Bogus DMCA Notice
Nothing But the Truth Films (NBT) has a credibility problem. Oh, the irony, I would normally say, except for the fact NBT deals mostly with this sort of "truth."
Google And Amazon Are Harming Consumers And Behaving Like Obnoxious Toddlers
You might recall that a few years ago, Amazon began banning competing streaming hardware like Apple TV and Google's Chromecast from the Amazon store because these products competed with Amazon's own streaming hardware. At the time, you might also recall that Amazon offered up the historically stupid claim that this was done simply to avoid "customer confusion":
Appeals Court: Forcing A Teen To Masturbate So Cops Can Take Pictures Is A Clear Violation Of Rights
I cannot imagine what it must be like as an appellate court judge to have to write these words (h/t Brad Heath):
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What Happened To Everyone Complaining About The Length Of The 2015 Net Neutrality Rules?
If you've followed the whole net neutrality debate for a while, you may remember one of the more ridiculous talking points when the 2015 rules were put in place: it was the line that the rules were "400 pages of regulation on the internet." People kept listing out the page numbers to suggest how crazy it was, and just how much bad stuff the FCC must be doing in "regulating the internet." Ajit Pai kicked it all off with his tweet with a picture of himself holding the initial version of the rules, complaining that it was "Obama's 332-page plan to regulate the internet."
The FCC Tried To Hide Net Neutrality Complaints Against ISPs
When FCC boss Ajit Pai first proposed killing popular net neutrality protections (pdf), he insisted he would proceed "in a far more transparent way than the FCC did" when it first crafted the rules in 2015. That promise has proven to be a historically-hollow one.Pai's agency is already facing numerous lawsuits for refusing to disclose conversations with ISP lobbyists about the plan to kill net neutrality, refusing to disclose net neutrality complaints filed with the agency, refusing to be transparent about a DDoS attack the FCC apparently concocted to downplay the "John Oliver effect," and for ignoring FOIA requests related to its failure to police website comment fraud during the public comment period.You'll recall that time and time again, Pai and friends have tried to claim that net neutrality isn't a real problem, and that the harms created by letting giants like AT&T and Comcast run roughshod over an uncompetitive broadband sector are largely hallucinated. As such, the National Hispanic Media Coalition (NHMC) filed a Freedom of Information Act (FOIA) request back in May to obtain the 45,000 consumer net neutrality complaints filed since the rules took effect in 2015, arguing that they might just prove useful to the conversation given the FCC's claim that net neutrality isn't a real problem.Initially the FCC spent much of this year stalling in the release of the complaints, insisting that making them public would be too "burdensome" for agency staff. After growing legal and public pressure, the FCC finally released upwards of 60,000 pages-worth of complaints by consumers who say their ISP behaved anti-competitively in violation net neutrality. But the agency is still refusing to include these complaints in the net neutrality proceeding docket, and refuses to include details on how ISPs responded to these complaints in the docket either:
Things The Intelligence Community Is Cool With: Backdoor Searches, Skirting Reporting Requirements, Parallel Construction
More answers have been provided to Senate Intelligence Committee questions (most of those penned by the always-inquisitive Ron Wyden) by the Office of the Director of National Intelligence. Some, like how often the NSA "incidentally" collects domestic communications, remain unanswered. But the ODNI's answers [PDF] -- given to the Committee in July -- have finally been made public. There are a few things worth noting in this rare display of transparency. (By which I mean a lack of redactions, rather than expansive openness by the ODNI).To begin with, the ODNI argues the new amicus position created by the USA Freedom Act is harmful to national security. Its theory? Any delays caused by the introduction of some semblance of an adversarial process only slows the NSA down.
Things The Intelligence Community Is Cool With: Backdoor Searches, Skirting Reporting Requirements, Parallel Contruction
More answers have been provided to Senate Intelligence Committee questions (most of those penned by the always-inquisitive Ron Wyden) by the Office of the Director of National Intelligence. Some, like how often the NSA "incidentally" collects domestic communications, remain unanswered. But the ODNI's answers [PDF] -- given to the Committee in July -- have finally been made public. There are a few things worth noting in this rare display of transparency. (By which I mean a lack of redactions, rather than expansive openness by the ODNI).To begin with, the ODNI argues the new amicus position created by the USA Freedom Act is harmful to national security. Its theory? Any delays caused by the introduction of some semblance of an adversarial process only slows the NSA down.
Where Credit's Due: Budweiser Goes The Cool And Funny Route On Microbrewery's 'Dilly Dilly' Craft IPA
I like to give credit where credit is due. When it comes to the myriad posts we've written about Budweiser or its parent company Anheuser-Busch, the credit has mostly been to do with being intellectual property bullies and all around megalith caricatures. That said, the company's actions surrounding a recent case of actual trademark infringement show the company not to be without humor or grace when it actually tries.Minneapolis brewery, Modist Brewery, recently unveiled a new double IPA it decided to call "Dilly Dilly." If that isn't ringing any bells, you must not have seen the series of kingly ads for Bud Light that I find funny, although I can't describe exactly why.
Senator Kamala Harris Serves Up A Not-Completely-Terrible Revenge Porn Bill
Senator Kamala Harris -- famous here mostly for her constant, Quixotic attempts to turn Backpage into a criminal defendant -- is now crafting laws at the federal level. Her support for the internet-crippling SESTA is already known. Her next target, apparently, is revenge porn purveyors.Harris' bill [PDF] will likely be remembered more for its too-clever acronym than its content. The ENOUGH Act of 2017 (brace yourself: Ending Nonconsensual Online User Graphic Harassment) is another attempt to criminalize revenge porn at the federal level. The problem is the subject matter is slippery and difficult to nail down precisely enough to avoid First Amendment concerns.The bill does make an attempt at narrowly crafting a definition and at least tries to limit the liability of platforms hosting user-generated content, but it still has some issues. For one, the definition of images covered by the act is a bit too vague to prevent the possible criminalization of harmless images.
Techdirt Podcast Episode 146: Can A Trivia App Resurrect Appointment Viewing?
Normally, we wouldn't dedicate a whole episode of the podcast to talking about a single app — but every now and then something small comes along that contains innovations worth exploring. So this week, we're taking a look at the hit trivia app HQ, which is one of the first new things in recent memory to gain real momentum with "appointment viewing".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.
Intelligence Director Says Gov't Can Demand Encryption Backdoors Without Having To Run It By The FISA Court
A set of questions from Senator Ron Wyden -- directed at the Office of the Director of National Intelligence -- have finally received answers. The answers [PDF] were actually given to the Senate oversight committee in July but have just now been made public.Zack Whittaker of ZDNet has taken a look at the answers the ODNI provided and found something that indicates the government can not only compel the creation of backdoors, but can do so without explicit approval from the FISA court.
Days Before Doing Verizon's Bidding, Ajit Pai Gives A Talk At Verizon
So, either no one at the FCC gives a shit any more or there's no one there with the slightest perspective on how this might look, but earlier today, Ajit Pai gave a talk at Verizon. Pai, as you know, used to be Verizon's deputy General Counsel -- though that was a while ago, and just because he used to work there doesn't necessarily mean he would be regulating in their interest. However, basically every move that Pai has taken since becoming chair of the FCC has been exactly what Verizon has asked for, no matter how ridiculous. Given that, you'd think at least someone in his office would have the sense to say "perhaps talking at Verizon just days before giving them a HUGE gift in destroying net neutrality is... not a good look."But, in these "drain the swamp" times, apparently it's totally fine to give a talk at the company whose bidding you are doing, against the interests of the public, just days before you do it. That it looks corrupt as hell doesn't matter, because this is Washington DC. Specifically, Pai spoke at the International Institute of Communications' Telecomunications & Media Forum event that is not only held at Verizon's DC offices, but heavily sponsored by Verizon:Not only that, but Pai's talk was sandwiched between two different Verizon execs, as if to just drive home the giant "fuck you!" Verizon and Pai are saying to the public and what they think of everyone.It's almost as if he's gloating about just how much he's become Verizon's pet regulator. Even if there's nothing officially "wrong" here, this is yet another example of what Larry Lessig has called "soft corruption", where these actions -- even if aboveboard -- present such a strong sense of corruption that it makes the public trust our government even less. Ajit Pai may not care that the public doesn't trust him, but giving a talk at Verizon right now just cements in many people's minds that he's looking out for them, and not us.
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AT&T, Whose Ex-CEO Promised To Wreck Net Neutrality, Insists It Won't Do Anything To Net Neutrality
AT&T is the latest big broadband player to try to suggest that everyone just calm down a little about this whole thing where the FCC destroys net neutrality. And, sure, some of the reports out there and some of the predictions being made about the impending death of net neutrality are fairly exaggerated. But, there are serious concerns, and AT&T's decision to set up some strawmen to knock over ignores the importance of the issue.Also, while AT&T ignores this, let's bring up a bit of history. Because it was former AT&T CEO Ed Whitacre who kicked off much of this debate back in 2005 when he declared that he was going to start charging successful internet sites to reach "his" customers over "his" pipes:
Ajit Pai Doesn't Want You Talking About Court Ruling That Undermines His Bogus Claim That The FTC Will Protect Consumers
We've noted a few times how the attack on net neutrality and consumer broadband privacy protections are just a small part of a massive lobbyist attempt to remove nearly all oversight of one of the least-competitive and least liked business sectors in America. Industry lobbyists (and the lawmakers and policy folk paid to love them) have made it abundantly clear that the goal is to gut FCC authority over broadband ISPs, then shovel any remaining, piddly authority to an FTC that's not only ill-equipped to handle it, but is currently engaged in a lawsuit with AT&T that could dismantle its authority over large ISPs entirely.That FTC lawsuit was filed against AT&T after the company lied about throttling its wireless customers as part of an effort to drive unlimited customers to more expensive plans. Lower courts sided with AT&T's creative argument that the very Title II common carrier FCC classification AT&T has been fighting tooth and nail against on the net neutrality front -- exempted it from the FTC's jurisdiction. Last year, the FTC argued that should this ruling stand, it could let any company with a common carrier component (inhereted or acquired) dodge FTC oversight:
German Government Official Wants Backdoors In Every Device Connected To The Internet
The US Department of Justice is reviving its anti-encryption arguments despite not being given any signals from the administration or Congress that undermining encryption is something either entity desires. The same thing is happening in Germany, with Interior Secretary Thomas de Maizière continuing an anti-encryption crusade very few German government officials seem interested in joining.The key difference in de Maizière's push is that he isn't limiting potential backdoors to cell phones. He appears to believe anything connected to the internet should be backdoored… possibly even the cars German citizens drive. (h/t Riana Pfefferkorn)
Top EU Privacy Campaigner Says He Wants Lots Of Money For 'None Of Your Business'
We've just written about the Austrian privacy activist Max Schrems, and his continuing battle with Facebook. But it seems Schrems now wants to take things up a notch. He's hoping to found a new privacy organization called the "European Center for Digital Rights", with the domain name of noyb.eu - "none of your business":
Angry, Threatening Lawyer Fails To Sue As Promised, Drops His SLAPP Suit
A couple weeks back we wrote about the somewhat odd decision making of an angry lawyer named Jason Lee Van Dyke, whom we'd also written about years ago for some spectacularly bad lawyering. This year he's also gotten really really pissed off at three (very different) people: Ken White, Asher Langton and Talib Kweli. The first two have appeared on Techdirt many times. Ken is a criminal defense and First Amendment lawyer. Asher has an astounding ability to sniff out frauds online. And Talib is a musical genius among other things. But, Van Dyke has spent months angrily lashing out about them on the internet (well, the lashing out at Kweli was more recent).When we last checked in on him, he was threatening to add those three individuals -- plus the Huffington Post -- to a fairly obvious SLAPP suit that he had already filed in Texas against an Ohio-based publication called the Mockingbird. Lots of people had pointed out that Texas has a fairly robust anti-SLAPP law, which could lead to Van Dyke having to pay up -- and Van Dyke's response (not atypical from his earlier responses) was to lash out and threaten more lawsuits and to promise violence if he was sanctioned.
Security Researcher Held In Jail For 8 Months Because He Wrote An Angry Blog Post, Released For Now
Over the past month or so we've written a few times about security research Justin Shafer. As you may recall, he first came to our attention, when the Justice Department decided to subpoena the identities of five Twitter users because Shafer had tweeted a smiley emoji at them. No, really. I'm not exaggerating. That's literally what happened. Shafer saw some Twitter users discussing a case totally unrelated to his own, tweeted an emoji, and the DOJ is demanding the identity of those he tweeted the emoji at.That then got us more interested in what the hell happened to Shafer -- where it appears that the DOJ had a weird vendetta against him. His house was raided three separate times -- mainly because he had helped expose security problems with some software. The company complained that Shafer had violated the CFAA, and thus his house got raided and all of his family's electronics were seized. Of course, he wasn't charged with anything because there was nothing to charge him with. Then there was a second raid. Same result. No charges. Shafer was apparently getting fed up with FBI agent Nathan Hopp (he initially misheard the name as "Hawk"). Eventually, after finding out about another case that Hopp was involved in, he did some online digging of public, online records to find out more about Hopp. Then he did something unwise, and which I would not recommend, but which it's hard to see how it could be illegal. And that is that he contacted Hopp's wife, after finding her Facebook page -- and asked her to have Nathan return the stuff that had been seized.And, yes, this is a dumb thing to do, no matter how angry or frustrated you might be. But... is it criminal? Well, the DOJ claimed it was, leading to a third raiding and Shafer being arrested for "cyber stalking." And then things got even crazier, because after being released on bail, Shafer was quickly dragged back to jail and had been locked up since April, because he blogged about the case. The conditions of his release said that he couldn't use social media to contact Hopp or his family. The DOJ claimed -- and a magistrate judge amazingly agreed -- that the blog post (1) was social media (2) was "indirect contact" and (3) broke the conditions of his release. And thus, he was in jail. Last month, his lawyers appealed that decision, claiming it was a First Amendment violation.And, on Friday he was released from jail as a judge agreed to release him, pending the trial (also, apparently there's a superseding indictment coming soon, so we'll see if the DOJ has anything more than "he sent some inappropriate Facebook messages."). The conditions of his release still seem fairly ridiculous as it includes this:
Home Security Company Says No One Linking To Its Website Is Allowed To Disparage It
With a federal law in place forbidding this sort of stuff, and an internet full of documentation detailing just how badly things go for companies that institute these policies, why on earth would ADT Security add this clause to its Terms of Use?
Ajit Pai Attacked Hollywood & Silicon Valley Because Even Republicans Are Against His Net Neutrality Plan
We were mystified last week when FCC chair Ajit Pai decided to attack both Hollywood and Silicon Valley because some (not all) people in both communities have spoken out against his plans to gut net neutrality. The attacks were weird on multiple levels. Regarding Hollywood, the comments were strangely personal -- picking out a list of entertainers, often taking their comments out of context, and attacking them in very personal ways. It was, to say the least, unbecoming of an FCC chair to directly pick on entertainers for voicing their opinions. The attacks on Silicon Valley were... even stranger. First, he claimed that the demand to keep net neutrality was really a ploy by the largest internet companies (i.e. Google & Facebook) to keep their dominant position. But that ignores the fact that without net neutrality, they're well positioned to further entrench their position. More importantly, it totally ignores the fact that neither Google nor Facebook have been strong advocates of net neutrality (and, in many cases, have pushed back against net neutrality).Bloomberg now has an article up explaining why Pai would make these attacks: apparently even among Republican activists, there's effectively no support for his plan to kill net neutrality. So, rather than (1) admit he's made a huge mistake or (2) give good reasons for his plan, he thought he'd pull a sort of Trumpian game of blaming other people that Republicans are supposed to hate, in the (not very accurate) stereotypical view of the US from the reality distortion field known as Washington DC.
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Judge Hands Back $92,000 Taken From Musician By Cops For Failing To Buckle His Seatbelt
Another awful story of civil asset forfeiture abuse comes to us via German Lopez at Vox. But at least this one has a happy ending. The beginning, however, is anything but happy. Musician Phil Parhamovich made the mistake of driving in Wyoming without his seatbelt buckled. A click-it ticket in Wyoming usually runs about $25. In Parhamovich's case, it cost him nearly $92,000.
New York AG Provides Tool To Help You Check If Your Name Was Used To Support Killing Net Neutrality
So we've noted several times now how the FCC's open comment period for its Orwell-inspired "Restoring Internet Freedom" net neutrality proceeding was simply awash in all manner of fraud. From bots that filled the comment proceeding with bogus support from fake or even dead people, to fake DDoS attacks intended to downplay the wash of angry users that flooded to the agency's website in protest. All of this stuff is more than likely to pop up in the inevitable lawsuits that are filed in the new year after the net neutrality repeal formally hits the federal register.In addition, New York Attorney General Eric Schneiderman recently stated he has been conducting an investigation for the last six months into these bogus comments. In a letter recently sent to FCC boss Ajit Pai, Schneiderman notes that he reached out to the FCC nine times over a period of five months to get the agency's help in getting a closer look at the APIs and server logs related to the fraud campaign. And that time and time again the FCC ignored its request:
NSA, DOJ Still Aren't Letting Defendants Know They're Using Section 702 Evidence Against Them
The NSA has never taken its evidentiary obligations seriously. The agency is supposed to inform the court and defendants if surveillance-derived evidence is being used against them. (And it's actually supposed to hand over the evidence as well.)This just doesn't happen. The NSA encourages parallel construction to obscure the true source of evidence used in court cases. The FBI's access to Section 702 collections makes this much easier. It allows the FBI to present NSA evidence as its own, heading off any scrutiny of the NSA's programs and collection methods.The NSA was always supposed to hand over this information. It's been mandatory for years. But it doesn't. After it was reported the NSA has misled none other than the Supreme Court of the United States about its fulfillment of evidentiary obligations, the agency briefly began complying with the law. It issued five notices in the span of a year (2013-2014) before going dark again.It appears the NSA's brief flirtation with statutory compliance was just that: brief, cheap, and completely hollow. A show of compliance was made but the NSA had no intention of acting in good faith going forward. The Intercept is publishing more Snowden docs, these ones confirming the NSA's continued obligation-shirking.A Uzbekistani man living in the US has just been convicted of terrorism charges -- something that followed several months of interaction with two FBI informants, including one who actually lived with him during the course of the investigation. The DOJ got its conviction, but it did it without fulfilling its statutory obligations.
Funniest/Most Insightful Comments Of The Week At Techdirt
This week, our first place winner on the insightful side came in response to the common refrain of anti-net-neutrality advocates that it's all about letting the government "take over" the internet. One anonymous commenter racked up the votes by explaining the reality:
This Week In Techdirt History: November 26th - December 2nd
Five Years AgoThis week in 2012, the copyright crowd was still reeling from the RSC report by Derek Khanna, and desperately trying to downplay it by chanting copyright is property! At the same time, Chris Dodd was trying to claim that the silly Facebook "copyright notice" that gets passed around proves everyone's love of copyright. But this same week, a case against UCLA over the streaming of licensed DVDs was dismissed, and Disney itself was sued for copyright infringement (though frankly that suit was pretty ridiculous). Oh, and Techdirt was also accused of infringement — and posted an open letter in response.Ten Years AgoThis week in 2007, movie producers were busy pissing off their directors and record labels were busy pissing off their musicians, all because artists could see the value of downloads and remixes and the suits couldn't. The MPAA's attempts to "help" universities fight file sharing looked a lot like distributing a malicious rootkit, and people were getting wise to the BSA's vindictive campaign over pirated software. The Romantics were closing the age-old gap in the music industry's permission culture when it comes to cover songs, and suing a licensed cover for sounding too much like the original, and the French government was working on a plan to kick file-sharers off the internet that would grow into the failure that was HADOPI.Fifteen Years AgoThis week in 2002, AOL-Time Warner was really committing to the walled garden game by musing about cutting off Time Magazine content from the wider web, anti-piracy groups were developing the strategy of just sending bills to file-sharers, and ISPs were considering an idea that, yes, was new at the time: data caps on home broadband. Internet rights activists in Spain won a victory against anti-internet legislation, while in the artist world people were becoming more afraid of copyright than government censorship. And, even though fifteen years later not much has changed, people were realizing that the antivirus software model was deeply broken, and kind of a racket.