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The Phoenix Police Department wants drones and it wants them now. And, according to this report by the Phoenix New Times, it's going to get them.

A whole bunch of people wasted Tuesday talking about technical measures. What technical measures, you might ask? The ones vaguely alluded to in the DMCA. Subsection 512(i) conditions the safe harbors on platforms (more formally called "Online Service Providers," or OSPs, for the purposes of the DMCA) "accommodat[ing] and [...] not interfer[ing] with standard technical measures." The statute goes on to describe them in general terms as "technical measures [...] used by copyright owners to identify and protect copyrighted works" that meet a few other criteria, including that they don’t unduly burden OSPs.In 1998 when the DMCA was passed no technical measures met all the criteria. And, still, today, none do either. So it should have been a very short hearing. But it wasn’t. Instead we spent all day, plus lots of time earlier filing comments, all at the instigation of Senators Tillis and Leahy, having some people point out that no technical measure currently existing can meet this statutory criteria to help police for infringement without massive, unacceptable cost to OSPs and the expression – including copyrightable expression – they facilitate, and having other people instead stamp their feet and hold their breath, pretend up is down, left is right, and the world is flat, in order to declare that some somehow do anyway and that platforms should incur any cost necessary to deploy them.And as for which technical measures we were talking about… we never really got there. There were references to fingerprinting technologies, like ContentID, the huge, expensive, and perpetually inaccurate system Google uses to identify potentially infringing files. There were references to watermarking systems, which some (like us) noted create significant surveillance concerns as people’s consumption of expression is now especially trackable. And there were references to upload filters as well, like the EU keeps wanting to mandate. But at no point was any specific technology ever identified so we could assess the benefits and harms of even encouraging, much less mandating, its broader use. We just all sort of nodded knowingly at each other, as if we all shared some unspoken knowledge of some technology that could somehow magically work this unprecedented miracle to make all rightsholders perfectly happy while not crushing OSPs’ abilities to continue to facilitate expression, create market opportunities for creators, and connect creators to audiences. Nor outright crush lawful expression itself as so many of these systems are already doing. When, of course, no such technology currently exists, nor is likely to exist any time soon, if ever at all.Since the Copia Institute participated in this exercise in futility, we used the opportunity to remind everyone – and the record – in our comment and testimony that the entire conversation was happening in the shadow of the Constitution. For instance, while a system of safe harbors for OSPs is not inherently in tension with the First Amendment – indeed, protecting the platforms that facilitate Internet expression is a critical statutory tool for advancing First Amendment interests online – recent interpretations of the statutory language of Section 512 have been increasingly putting this safe harbor system at odds with the constitutional proscription against making a law that would impinge free expression. Any system, be it legal or technical, that causes lawful expression to be removed, or to not be allowed to be expressed at all, deeply offends the First Amendment. Such harm cannot and should not be tolerated in any statute or policy promulgated by the Copyright Office. The regulatory priority therefore ought to be, and must be, to abate this constitutional injury that’s already been occurring and keep it from accruing further. And under no circumstances should any provision of Section 512, including and especially the technical measures provision, be amended or interpreted in a way that increases the frequency or severity of this constitutional harm that the statute has already invited.Because it also offends the spirit if not letter of the Progress Clause animating copyright law. You cannot foster creative expression by creating a system of censorship that in any way injures the public’s ability to express themselves or to consume others’ expression. So it is critically important to recognize how any technological measure might do that, because it will only hurt the creative expression copyright law is itself supposed to foster, as well as all the public benefit it’s supposed to deliver.

The story of Missouri's Department of Elementary and Secondary Education (DESE) leaking the Social Security Numbers of hundreds of thousands of current and former teachers and administrators could have been a relatively small story of yet another botched government technology implementation -- there are plenty of those every year. But then Missouri Governor Mike Parson insisted that the reporter who reported on the flaw was a hacker and demanded he be prosecuted. After a months' long investigation, prosecutors declined to press charges, but Parson doubled down and insisted that he would "protect state data and prevent unauthorized hacks."You had to figure another shoe was going to drop and here it is. As Brian Krebs notes, it has now come out that it was actually the Governor's own IT team that was in charge of the website that leaked the data. That is, even though it was the DESE website, that was controlled by the Governor's own IT team. This is from the now released Missouri Highway Patrol investigation document. As Krebs summarizes:

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As so-called "conservatives" (a decently large number of them appearing to actually be white supremacists and bigots engaged in harassment) complained Big Tech was slanted against them, a host of new services arrived to meet the sudden demand. Gab, Gettr, etc. hit the marketplace of ideas, promising freedom from the "censorship" of "liberal" social media platforms, ignoring evidence that indicated "conservatives" weren't actually being "censored," but rather extremists calling themselves "conservatives" were being booted for multiple violations of site policies.New services arrived, promising unabridged speech and a safe space for bigots, transphobes, disgruntled MAGAts, and everyone else who felt oppressed because they frequently went asshole on main. But as soon as these sites debuted, they began moderating all sorts of speech, starting with the clearly illegal and ramping things up to eject trolls and critics.Moderation at scale remains impossible. And it's not much easier when you're dealing with thousands of users rather than millions or billions. Decisions need to be made. While it was clear to see the upstarts were unfamiliar with the moderation issues bigger platforms have struggled with for years, it was also clear to see the upstarts were more than happy to "censor" speech they didn't like, despite claiming to be the last bastions of online free speech."You're free to say whatever you want," platforms like Gab and Gettr proclaimed, muttering asterisks under their breath. You were indeed free to say what you wanted, but that would not prevent your content or your account being banned, deleted, etc.Gettr has experienced the growing pains of platform moderation. This has happened despite its initial guarantees (*offer void pretty much everywhere) that it would only remove illegal content. Porn is not illegal, yet Gettr seemed to have a problem with all the porn being posted by users, perhaps because a majority of it involved animated animals.It also had problems keeping trolls from impersonating the illustrious conservative figures it hoped to host exclusively. Aggressive trolling resulted in Gettr temporarily banning Roger Stone's actual account under the assumption it couldn't possibly be the real Roger Stone. It followed this up a few months later by banning the term "groyper" in an effort to limit the amount of white supremacist content it had to host. This too was somewhat of a failure. First, it told white supremacists their awful (but not illegal) speech wasn't welcome on the "free speech" alternative to Twitter. Then it became apparent the ban on "groyper" could be easily evaded by adding an o or two.Now, there's even more "censorship" to be had at Gettr. One of its financial backers is Guo Wengui, a (former) billionaire and supposed anti-communist who recently filed for bankruptcy. There are reasons to believe Wengui isn't the most trustworthy of online associates. Wengui left China and has spent several years living in a New York City hotel overlooking Central Park. He has applied for asylum but has yet to be granted this request. Despite apparently distancing himself from China, he is still hounded by claims that he's only in the US to obtain information he can deliver to the Chinese government. These allegations were made by Strategic Vision US during a lawsuit over business dealings the company had with Wengui.

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There's been an unfortunate movement in the US over the last few years to try to argue that social media should be considered "common carriers." Mostly this is coming (somewhat ironically) from the Trumpian wing of grifting victims, who are trying to force websites to carry the speech of trolls and extremists claiming, (against all actual evidence) that there's an "anti-conservative bias" in content moderation on various major websites.This leads to things like Ohio's bizarre lawsuit that just outright declares Google a "common carrier" and seems to argue that the company cannot "discriminate" in its search results, even though the entire point of search is to rank (i.e., discriminate) between different potential search results to show you which ones it thinks best answer your query.There is even some movement among (mostly Republican) lawmakers to pass laws that declare Facebook/Google/Twitter to be "common carriers." There's some irony here, in that these very same Republicans spent years demonizing the idea of "common carriers" when the net neutrality debate was happening, and insisting that the entire concept of "common carrier" was socialism. Amusingly (if it weren't so dumb), Republican-proposed bills declaring social media sites common carriers often explicitly carve out broadband providers from the definitions, as if to prove that this is not about any actual principles, and 100% about using the law to punish companies they think don't share their ideological beliefs.Unfortunately, beyond grandstanding politicians, even some academics are starting to suggest that social media should be treated like common carriers. Beyond the fact that this would almost certainly come back to bite conservatives down the line, there's an even better reason why it makes no sense at all to make social media websites common carriers.They don't fit any of the underlying characteristics that made common carrier designations necessary in the first place.While there were other precursor laws having to do with the requirement to offer service if you were "public callings" the concept of "common carriers" is literally tied up in its name: the "carrier" part is important. Common carriers have been about transporting things from point A to point B. Going back to the first use of the direct concept of a must "carry" rule, there's the 1701 case in England of Lane v. Cotton, regarding the failure to deliver mail by the postal service. The court ruled that a postal service should be considered a common carrier, and that there was a legitimate claim "[a]gainst a carrier refusing to carry goods when he has convenience, his wagon not being full."In the US, the concept of the common carrier comes from the railroads, and the Interstate Commerce Act of 1887, and then to communications services with the Communications Act of 1934, and the establishment of an important bifurcation between information services (not common carriers) and telecommunications services which were common carriers.As you look over time, you'll notice a few important common traits in all historical common carriers:

The Phoenix Police Department wants drones and it wants them now. And, according to this report by the Phoenix New Times, it’s going to get them. After several hours of debate and spirited public response during the Phoenix City Council meeting this week, local officials agreed to authorize the police department to purchase public safety […]

It's just no fun being a giant company aspiring to monopolize repair to boost revenues. On both the state and federal level, a flood of new bills are targeting companies' efforts to monopolize repair by implementing obnoxious DRM, making repair tools and manuals hard to find, bullying independent repair shops (like Apple does), or forcing tractor owners to drive hundreds of miles just to get their tractor repaired (one of John Deere's favorite pastimes). The Biden administration even just got done signing an executive order asking the FTC to tighten up its restrictions on the subject.This week the list of right to repair legislation jumped by one with the introduction of the "Right to Equitable and Professional Auto Industry Repair" Act (REPAIR Act), which would mandate equitable access to repair tools and tech, boost the FTC's authority to handle consumer complaints, and mandate additional transparency by the auto industry:

A whole bunch of people wasted Tuesday talking about technical measures. What technical measures, you might ask? The ones vaguely alluded to in the DMCA. Subsection 512(i) conditions the safe harbors on platforms (more formally called “Online Service Providers,” or OSPs, for the purposes of the DMCA) “accommodat[ing] and […] not interfer[ing] with standard technical […]

The story of Missouri’s Department of Elementary and Secondary Education (DESE) leaking the Social Security Numbers of hundreds of thousands of current and former teachers and administrators could have been a relatively small story of yet another botched government technology implementation — there are plenty of those every year. But then Missouri Governor Mike Parson […]

As so-called “conservatives” (a decently large number of them appearing to actually be white supremacists and bigots engaged in harassment) complained Big Tech was slanted against them, a host of new services arrived to meet the sudden demand. Gab, Gettr, etc. hit the marketplace of ideas, promising freedom from the “censorship” of “liberal” social media […]

Aspiring filmmakers, YouTubers, bloggers, and business owners alike can find something to love about the Complete Video Production Super Bundle. Video content is fast changing from the future marketing tool to the present, and in these 10 courses you’ll learn how to make professional videos on any budget. From the absolute basics to the advanced […]

There’s been an unfortunate movement in the US over the last few years to try to argue that social media should be considered “common carriers.” Mostly this is coming (somewhat ironically) from the Trumpian wing of grifting victims, who are trying to force websites to carry the speech of trolls and extremists claiming, (against all […]

It’s just no fun being a giant company aspiring to monopolize repair to boost revenues. On both the state and federal level, a flood of new bills are targeting companies’ efforts to monopolize repair by implementing obnoxious DRM, making repair tools and manuals hard to find, bullying independent repair shops (like Apple does), or forcing […]

Nearly a year ago, we talked about a trademark battle between Caryn Mandabach Productions, the company that produces Netflix's Peaky Blinders hit show, and Sadler's Brewhouse, a combined distillery that applied for a "Peaky Blinders" trademark for several spirits brands. Important to keep in mind is that "Peaky Blinders" isn't some made up gang in a fictional story. That name was taken from very real history in England, as evidenced by the folks that own Sadler's being descendants from one of the gang's members. It's also important to remember that television shows and alcohol are not the same marketplace when it comes to trademark law. Despite that, there has been a years-long dispute raging between Mandabach and Sadler's.And now we have some indication as to why, since Bushmills has announced a partnership with Mandabach Productions to release its own "Peaky Blinders" themed whiskey.

In November, we wrote about a very bizarre case in which someone was using a highly questionable copyright claim to try to identify an anonymous Twitter user with the username @CallMeMoneyBags. The account had made fun of various rich people, including a hedge fund billionaire named Brian Sheth. In some of those tweets, Money Bags posted images that appeared to be standard social media type images of a woman, and the account claimed that she was Sheth's mistress. Some time later, an operation called Bayside Advisory LLC, that has very little other presence in the world, registered the copyright on those images, and sent a DMCA 512(h) subpoena to Twitter, seeking to identify the user.The obvious suspicion was that Sheth was somehow involved and was seeking to identify his critic, though Bayside's lawyer has fairly strenuously denied Sheth having any involvement.Either way, Twitter stood up for the user, noting that this seemed to be an abuse of copyright law to identify someone for non-copyright reasons, that the use of the images was almost certainly fair use, and that the 1st Amendment should protect Money Bag's identify from being shared. The judge -- somewhat oddly -- said that the fair use determination couldn't be made with out Money Bags weighing in and ordered Twitter to alert the user. Twitter claims it did its best to do so, but the Money Bags account (which has not tweeted since last October...) did not file anything with the court, leading to a bizarre ruling in which Twitter was ordered to reveal the identify of Money Bags.We were troubled by all of this, and it appears that so was the ACLU and the EFF, who have teamed up to tell the court it got this very, very wrong. The two organizations have filed a pretty compelling amicus brief saying that you can't use copyright as an end-run around the 1st Amendment's anonymity protections.

Oh, NSO Group, is there anything you won't do? (And then clumsily deny later?). If I were the type to sigh about such things, I surely would. But that would indicate something between exasperation and surprise, which are emotions I don't actually feel when bringing you this latest revelation about the NSO's shady dealings.

Andy Parker has experienced something that no one should ever have to go through: having a child murdered. Even worse, his daughter, Alison, was murdered on live TV, while she was doing a live news broadcast, as an ex-colleague shot her and the news station's cameraman dead. It got a lot of news coverage, and you probably remember the story. Maybe you even watched the video (I avoided it on purpose, as I have no desire to see such a gruesome sight). Almost none of us can even fathom what that experience must be like, and I can completely understand how that has turned Parker into something of an activist. We wrote about him a year ago, when he appeared in a very weird and misleading 60 Minutes story attacking Section 230.While Parker considers himself an "anti-big tech, anti-Section 230" advocate, we noted that his story actually shows the benefits of Section 230, rather than the problems with it. Parker is (completely understandably!) upset that the video of his daughter's murder is available online. And he wants it gone. As we detailed in our response to the 60 Minutes story, Parker had succeeded in convincing various platforms to quickly remove that video whenever it's uploaded. Something they can do, in part, because of Section 230's protections that allow them to moderate freely, and to proactively moderate content without fear of crippling lawsuits and liability.The 60 Minutes episode was truly bizarre, because it explains Parker's tragic situation, and then notes that YouTube went above and beyond to stop the video from being shared on its platform, and then it cuts to Parker saying he "expected them to do the right thing" and then says that Google is "the personification of evil"... for... doing exactly what he asked?Parker is now running for Congress as well, and has been spouting a bunch of bizarre things about the internet and content moderation on Twitter. I'd link to some of them, but he blocked me (a feature, again, that is aided by Section 230's existence). But now the Washington Post has a strange article about how Parker... created an NFT of the video as part of his campaign to remove it from the internet.

There are things people expect the government to do. And then there are the things the government actually does. The government assumes many people are comfortable with things it does that are technically legal, but certainly not how the average government user expects the system to behave.Some of this can be seen in the Third Party Doctrine, which says people who knowingly share information with third parties also willingly share it with the government. But very few citizens are actually cool with this extended sharing, no matter what the Supreme Court-created doctrine says. This tension between people's actual expectations and the government's portrayal of the people's expectations is finally being addressed by the nation's top court. Recent rulings have shifted the balance back towards actual reasonable expectations of privacy, but there's still a whole lot of work to be done.So, when rape victims report sexual assaults to law enforcement, they certainly don't expect their DNA samples will be run through crime databases to see if these victims of crimes have committed any crimes. But that's exactly what the San Francisco PD has been doing, according to this report from Megan Cassidy of the San Francisco Chronicle.

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Earlier this week we took a look at Donald Trump and Devin Nunes' Truth Social's terms of service, noting that they -- despite claiming that Section 230 should be "repealed" -- had explicitly copied Section 230 into their terms of service. In the comments, one of our more reliably silly commenters, who inevitably insists that no website should ever moderate, and that "conservatives" are regularly removed for their political views on the major social networks (and refusing to provide any evidence to support his claims, because he cannot), insisted that Truth Social wouldn't ban people for political speech, only for "obscenity."So, about that. As Mashable has detailed, multiple people are describing how they've been banned from Truth Social within just the first few days -- and not for obscenity. The funniest one is someone -- not the person who runs the @DevinCow account on Twitter -- tried to sign up for a @DevinCow account on Truth Social. As you probably know, Devin Nunes, as a congressman, sued the satirical cow account for being mean to him (the case is still, technically, ongoing). You may recall that the headline of my article about Devin Nunes quitting Congress to run Truth Social announced that he was leaving Congress to spend more time banning satirical cows from Truth Social.And apparently that was accurate. Matt Ortega first tried to register the same @DevinCow on Truth Social, only to be told that the username was not even allowed (which suggests that Nunes or someone else there had already pre-banned the Cow). Ortega then tried other varieties of the name, getting through with @DevinNunesCow... briefly. Then it, too, was banned:

NBC (now Comcast NBC Universal) has enjoyed the rights to broadcast the US Olympics since 1998. In 2011, the company paid $4.4 billion for exclusive US broadcast rights to air the Olympics through 2020. In 2014, Comcast NBC Universal shelled out another $7.75 billion for the rights to broadcast the summer and winter Olympics in the US... until the year 2032.Despite years of experience Comcast/NBC still struggles to provide users what they actually want. For years the cable, broadband, and broadcast giant has been criticized for refusing to air events live, spoiling some events, implementing annoying cable paywall restrictions, implementing heavy handed and generally terrible advertising, often sensationalizing coverage, avoiding controversial subjects during broadcasts, and streaming efforts that range from clumsy to scattershot.Not too surprisingly, years of this continues to have a profound drag on viewer numbers, which are worse than ever:

Roughly a year ago, we discussed a wildly silly lawsuit brought against Apple by a company called Cub Club and an individual, Katrina Parrott. At issue were "diverse emojis", which by now are so ubiquitous as to be commonplace. Parrott had created some emojis featuring more diverse and expansive color/skin tones. And, hey, that's pretty cool. The problem is that, after she had a meeting with Apple about her business, Apple decided to simply incorporate diverse skin tones into its existing emojis. The traditional yellow thumbs up hand suddenly came with different coloration options. Cub Club and Parrott sued, claiming both copyright and trademark infringements.We said at the time we covered Apple's motion to dismiss that there was very, very little chance of this lawsuit going anywhere. The trademark portion was completely silly, given that Apple wasn't accused of any direct copying, but merely of copying the idea of diverse emojis. Since ideas aren't afforded copyright protection, well, that didn't seem like much of a winner. The trade dress claims made even less sense, since they were levied over the same content: Apple's diverse emojis. The argument from Parrott was that Apple having diverse emojis would confuse the public into thinking it had contracted with Cub Club. But that isn't how the law works. The thing you're suing over can't be a functional part of the actual product. In this case, that's literally all it was.And so it is not particularly surprising that I'm able to up date you all that the court has dismissed the case a year later.

Clearview AI -- the facial recognition tech company so sketchy other facial recognition tech companies don't want to be associated with it -- is about to get a whole lot sketchier. Its database, which supposedly contains 10 billion images scraped from the internet, continues to expand. And, despite being sued multiple times in the US and declared actually illegal abroad, the company has expansion plans that go far beyond the government agencies it once promised to limit its sales to.A Clearview pitch deck obtained by the Washington Post contains information about the company's future plans, all of which are extremely concerning. First, there's the suggestion nothing is slowing Clearview's automated collection of facial images from the web.

Peloton hasn't been having a great run lately. While business boomed during the pandemic, things have taken a sour turn of late on a bizarre host of fronts. In just the last month or two the company has seen an historic drop in company valuation, fired 20 percent of its workforce, shaken up its executive management team, been forced to pause treadmill and bike production due to plummeting demand, been the subject of several TV shows featuring people having heart attacks, and now has been caught up in a new scandal for trying to cover up a rust problem to avoid a recall.Some of the issues have been self-inflicted, while others are just the ebb and flow of the pandemic. Most users still generally love the product, and a lot of these issues are likely to fade away over time. But adding insult to injury, connectivity issues this week prevented Peloton bike and treadmill owners from being able to use their $2000-$5000 luxury exercise equipment for several hours Tuesday morning. The official Peloton Twitter account tried to downplay the scope of the issues:

Last summer, I believe we were among the first to highlight that the various antitrust bills proposed by mainly Democratic elected officials in DC included an incredibly dangerous trojan horse that would aid Republicans in their "playing the victim" desire to force websites to host their disinformation and propaganda. The key issue is that many of the bills included a bar on self-preferencing a large company's own services against competitors. The supporters of these bills claimed it was to prevent, say, an Apple from blocking a competing mapping service while promoting Apple Maps, or Google from blocking a competing shopping service, while pushing Google's local search results.But the language was so broad, and so poorly thought out, that it would create a massive headache for content moderation more broadly -- because the language could just as easily be used to say that, for example, Amazon couldn't kick Parler off it's service, or Google couldn't refuse to allow Gab's app in its app store. You would have thought that after raising this issue, the Democratic sponsors of these bills would fix the language. They have not. Bizarrely, they've continued to issue more bills in both the House and the Senate with similarly troubling language. Recently, TechFreedom called out this problematic language in two antitrust bills in the Senate that seem to have quite a lot of traction.Whatever you think of the underlying rationale for these bills, it seems weird that these bills, introduced by Democrats, would satisfy the Republicans' desire to force online propaganda mills onto their platforms.

It all started with Hertz being less than helpful when a man was falsely accused of murder. Michigan resident Herbert Alford was arrested and convicted for a murder he didn't commit. He maintained his innocence, claiming he was at the airport in Lansing, Michigan during the time the murder occurred. And he could have proven it, too, if he had just been able to produce the receipt showing he had been renting a car at Hertz twenty minutes away from the crime scene.It wasn't until Alford had spent five years in prison that Hertz got around to producing the receipt. Three of those years can be laid directly at Hertz's feet. The receipt was requested in 2015. Hertz handed it over in 2018. Alford sued.That's not the only lawsuit Hertz is facing. It apparently also has a bad habit of accusing paying customers of theft, something that has resulted in drivers being accosted by armed officers and/or arrested and charged.Nine months later, another lawsuit rolled in. A proposed class action suit -- covering more than 100 Hertz customers -- claimed the company acts carelessly and engages in supremely poor recordkeeping. The lawsuit, (then) representing 165 customers, contains details of several customers who have been pulled over, arrested, and/or jailed because Hertz's rental tracking system is buggier than its competitors'. Hertz takes pain to point out these incidents only represent a very small percentage of its renters. But that's essentially meaningless when this small error rate doesn't appear to occur at other car rental agencies.This lawsuit is forcing Hertz to disclose exactly what this error rate is and how many renters it affects. It's a much larger number than the 165 customers the lawsuit started with last November.

With the launch of Donald Trump's ridiculous Truth Social offering, we've already noted that he's so heavily relying on Section 230's protections to moderate that he's written Section 230 directly into his terms of service. However, at the same time, Trump is still fighting his monstrously stupid lawsuits against Twitter, Facebook, and YouTube for banning him in the wake of January 6th.Not surprisingly (after getting the cases transferred to California), the internet companies are pointing the courts to Section 230 as to why the cases should be dismissed. And, also not surprisingly (but somewhat hilariously), Trump is making galaxy brain stupid claims in response. That's the filing in the case against YouTube which somehow has eight different lawyers signed onto a brief so bad that all eight of those lawyers should be laughed out of court.The argument as to why Section 230 doesn't apply is broken down into three sections, each dumber than the others. First up, it claims that "Section 230 Does Not Immunize Unfair Discrimination," which claims (falsely) that YouTube is a "common carrier" (it is not, has never been, and does not resemble one in any manner). The argument is not even particularly well argued here. It's three ridiculous paragraphs, starting with Packingham (which is not relevant to a private company choosing to moderate), then claiming (without any support, since there is none) that YouTube is a common carrier, and then saying that YouTube's terms of service mean that it "must carry content, irrespective of any desire or external compulsion to discriminate against Plaintiff."Literally all of that is wrong. It took EIGHT lawyers to be this wrong.The second section claims -- incorrectly -- that Section 230 "does not apply to political speech." They do this by totally misrepresenting the "findings" part of Section 230 and then ignoring basically all the case law that says, of course Section 230 applies to political speech. As for the findings, while they do say that Congress wants "interactive computers services" to create "a true diversity of political discourse" as the authors of the bill themselves have explained, this has always been about allowing every individual website to moderate as they see fit. It was never designed so that every website must carry all speech, but rather by allowing websites to curate the community and content they want, there will be many different places for different kinds of speech.Again. Eight lawyers to be totally and completely wrong.Finally, they argue that "Section 230(c) Violates the First Amendment as Applied to This Matter." It does not. Indeed, should Trump win this lawsuit (he won't) that would violate the 1st Amendment in compelling speech on someone else's private property who does not wish to be associated with it. And this section goes off the rails completely:

It was only 2009 that AT&T heralded its cutting edge 3G network as it unveiled the launch of the iPhone (which subsequently crashed AT&T's cutting edge 3G network). Fast forward a little more than a decade and AT&T is preparing to shut that 3G network down, largely so it can repurpose the spectrum it utilizes for fifth-generation (5G) wireless deployments. While the number of actual wireless phone users still using this network is minimal, the network is still being heavily used as a connectivity option for some older medical devices and home alarm systems.As such, the home security industry is urging regulators to delay the shutdown to give them some more time to migrate home security users on to other networks:

I've been banging on a bit lately about the importance of video game preservation as a matter of art preservation. It's not entirely clear to me how much buy in there is out there in general on this concept, but it's a challenge in this specific industry because much of the control over what can be preserved or not sits in the hands of game publishers and platforms compared with other forms of art. Books have libraries, films have the academies and museums, and music is decently preserved all over the place. But for gaming, even organizations like the Video Game History Foundation have to rely on publishers and platforms to let them do their work, or risk art being lost entirely to the digital ether or lawsuits over copyright. We've talked in the past about how copyright law is far too often used in a way that results in a loss of our own cultural history, and digital-only video games are particularly vulnerable to that.We just discussed Nintendo's forthcoming shutdown of the 3DS and Wii U stores, and what that meant for digital games that Nintendo indicates it is not planning on selling anywhere else. Well, the Video Game History Foundation released a statement on that action and, well, hoo-boy...

Can cops pretend to be real people on social media to catfish people into criminal charges? Social media services say no. Facebook in particular has stressed -- on more than one occasion -- that it's "real name" policy applies just as much to cops as it does to regular people.Law enforcement believes terms of service don't apply to investigators and actively encourages officers to create fake accounts to go sniffing around for crime. That's where the Fourth Amendment comes into play. It's one thing to passively access public posts from public accounts. It's quite another when investigators decide the only way to obtain evidence to support search or arrest warrants involves "friending" someone whose posts aren't visible to the general public.What's public is public and the third party doctrine definitely applies: users are aware their public posts are visible to anyone using the service. But those who use some privacy settings are asking courts whether it's ok for cops to engage in warrantless surveillance of their posts just because they made the mistake of allowing a fake account into their inner circle.Accepting a friend request is an affirmative act. And that plays a big part in court decisions finding in favor of law enforcement agencies. Getting duped isn't necessarily a constitutional violation. And it's difficult to claim you've been unlawfully surveilled by fake accounts run by cops. You know, due diligence and all that. It apparently makes no difference to courts that cops violated platforms' terms of service or engaged in subterfuge to engage in fishing expeditions for culpatory evidence.Massachusetts' top court has been asked to settle this. And the state justices seem somewhat skeptical that current law (including the state's constitution) allows for extended surveillance via fake social media accounts. No decision has been reached yet, but lower courts in the state are adding to case law, providing additional precedent that may influence the final decision from the state's Supreme Court.This recent decision [PDF] by a Massachusetts Superior Court indicates the courts are willing to give cops leeway considering the ostensibly-public nature of social media use. But it doesn't give the Commonwealth quite as much leeway as it would like.Here's how it started:

We've got another cross-post this week: Mike was recently a guest on the new Internet of Humans podcast by Jillian York and Konstantinos Komaitis, for a wide-ranging discussion about internet regulation issues today and where they might be headed. You can listen to the entire conversation on this week's episode.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.

For years, throughout the entire monkey selfie lawsuit saga, we kept noting that the real reason a prestigious law firm like Irell & Manella filed such a patently bogus lawsuit was to position itself to be the go-to law firm to argue for AI-generated works deserving copyright. However, we've always argued that AI-generated works are (somewhat obviously) in the public domain, and get no copyright. Again, this goes back to the entire nature of copyright law -- which is to create a (limited time) incentive for creators, in order to get them to create a work that they might not have otherwise created. When you're talking about an AI, it doesn't need a monetary incentive (or a restrictive one). The AI just generates when it's told to generate.This idea shouldn't even be controversial. It goes way, way back. In 1966 the Copyright Office's annual report noted that it needed to determine if a computer-created work was authored by the computer and how copyright should work around such works:In 1985, prescient copyright law expert, Pam Samuelson, wrote a whole paper exploring the role of copyright in works created by artificial intelligence. In that paper, she noted that, while declaring such works to be in the public domain, it seemed like an unlikely result as "the legislature, the executive branch, and the courts seem to strongly favor maximalizing intellectual property rewards" and:

The man presiding over a law enforcement agency filled with gangs and cliques would prefer city officials stop referring to his employees as gang members.Los Angeles County Sheriff Alex Villanueva has stated that there are no gangs within the Sheriff's Department, a claim he is obviously unable to back up with facts, because the facts make it clear that the LASD has been (and apparently still is) home to multiple gangs composed of deputies. There's even a Wikipedia page dedicated to the gangs infesting the Sheriff's Department.If you distrust the info on the anyone-can-edit Wikipedia page, there's also this comprehensive database compiled by journalist Cerise Castle for Knock LA -- one that pulls info from public records and court documents to list suspected and verified members of LASD gangs.Sheriff Villanueva continues to claim there are no gangs within his department. He has also instituted a policy to address the problem he says doesn't exist, forbidding deputies from "joining any group that commits misconduct." You'd think this policy would forbid any deputy from being employed by the Los Angeles Sheriff's Department, but I guess that's not how Villanueva reads his edict.As for Villanueva's claim gangs and cliques don't exist within his department? Well, let's take a look at what his employees say:

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When Donald Trump first announced his plans to launch his own Twitter competitor, Truth Social, we noted that the terms of service on the site indicated that the company -- contrary to all the nonsense claims of being more "free speech" supportive than existing social media sites -- was likely going to be quite aggressive in banning users who said anything that Trump disliked. Last month, Devin Nunes, who quit Congress to become CEO of the fledgling site, made it clear that the site would be heavily, heavily moderated, including using Hive, a popular tool for social media companies that want to moderate.So with the early iOS version of the app "launching" this past weekend, most people were focused on the long list of things that went wrong with the launch, mainly security flaws and broken sign-ups. There's also been some talk about how the logo may be a copy... and the fact that Trump's own wife declared that she'll be using Parler for her social media efforts.But, for me, I went straight to checking out the terms of service for the site. They've been updated since the last time, but the basics remain crystal clear: despite all the silly yammering from Nunes and Trump about how they're the "free speech" supporting social network, Truth Social's terms are way more restrictive regarding content than just about any I've ever seen before.Still, the most incredible part is not only that Truth Social is embracing Section 230, but it has literally embedded parts of 230 into its terms of service. The terms require people who sign up to "represent and warrant" that their content doesn't do certain things. And the site warns that if you violate any of these terms it "may result in, among other things, termination or suspension of your rights to use the Service and removal or deletion of your Contributions." I don't know, but I recall a former President and a former cow farming Representative from California previously referring to that kind of termination as "censorship." But, one of the things that users must "represent and warrant" is the following:

A major trick dominant broadband providers use to limit competition is exclusive broadband arrangements with landlords. Often an ISP will strike an exclusive deal with the owner of a building, apartment complex, or development that effectively locks in a block by block monopoly. And while the FCC passed rules in 2007 to purportedly stop this from happening, they contained too many loopholes to be of use.Susan Crawford wrote pretty much the definitive story on this at Wired a while back, noting that the rules are so terrible, ISPs and landlords can tap dance around them by simply calling what they're doing... something else:

This week, our first place winner on the insightful side is an anonymous comment about what happens when medical companies implode, leaving people who rely on their products in the lurch:

Five Years AgoThis week in 2017, Oracle filed its opening brief in its renewed attempt to overturn Google's fair use win on Java APIs. The UK rolled out a "piracy alert system" that was mostly but not entirely benign, while politicians there were looking to follow up on the Snooper's Charter with an even worse anti-whistleblowing law. In the US, things weren't looking good for net neutrality between the opinions of FCC commissioners and the shifty activities of telco. Meanwhile, prosecutors and anti-sex-trafficking advocates were speaking out about the government's treatment of Backpage, while a new report on encryption showed that its proliferation was not much of a problem for law enforcement.Ten Years AgoThis week in 2012, there were mass protests against ACTA all across Europe. The European Parliament President criticized the agreement, and the EU official who resigned over it was detailing its many problems — but the EU Commission was trying to claim the widespread concerns were all based on 'myths', and lobby groups like the IFPI were claiming that the protests were anti-democratic. Meanwhile, US Senators were ramping up the fearmongering to push for a cybersecurity bill that they insisted was nothing like SOPA — but which also didn't seem necessary.Fifteen Years AgoThis week in 2007, we examined Universal Music's ridiculous 'settlement' with small video sharing site Bolt, while Hollywood was expressing its ongoing displeasure with Google (as were some very confused Belgian newspapers). Broadcasters were making yet another attempt at anti-satellite radio legislation, sample troll Bridgeport Music won an unfortunate victory, and the RIAA was trying to get ISPs to help it hound customers into settling its lawsuits.

Law enforcement -- including the FBI -- like to claim they're heavily invested in science. The use of forensic "science" has been with us for years, but nowhere is it more sketchy than in law enforcement labs, where zero accountability rubs elbows with zero outside review of methods.For years now, evidence historically claimed to be almost certain indications of guilt has been shown to be, in many cases, no better than a coin flip. Even DNA has its problems, especially when "expert" witnesses overstate their ability to exclude "innocent" DNA from cluttered crime scenes. The unwillingness of police to police themselves has been aggravated by the unwillingness of courts to question statements made by forensic techs -- ones that include things like claiming a person can be positively identified by the wrinkles and creases in their mass-produced clothing.One judge -- Jed S. Rakoff -- did speak up. He excused himself from the DOJ's examination of law enforcement forensics once it became clear the Justice Department was more interested in finding supporting claims than dissenting voices. The DOJ's Deputy Attorney General informed Judge Rakoff that examination of pre-trial evidence procedures was beyond the "scope" of the Commission, resulting in Rakoff's resignation.Blood pattern analysis, bite mark patterns, hair matching, etc. Nearly every supposedly inarguable form of forensic evidence has been determined to be junk science under closer examination. Even the FBI has admitted its forensic experts have routinely overstated the certainty of their findings during sworn testimony.You would think all of this would add up to a major overhaul of forensic procedures and requirements that testing methods be subjected to peer review or blind testing or literally anything other than the zero scrutiny it has enjoyed for years. You'd be wrong. Instead, law enforcement officers and officials have been putting their energy into finding ways to keep their junk science from being rejected by courts.A letter obtained by The Daily Beast shows the FBI would rather lie to courts than give up the use of yet another questionable forensic technique: bullet matching. Investigators claim bullet fragments contain unique markings from the barrel of the gun they're fired from and these can be used to uniquely identify the weapon used to fire the bullet. This, of course, assumes there are no similarities between mass-produced weapons and mass-produced bullets that might result in "matches" that say nothing more than a certain kind of gun fired a bullet designed to be fired from that model of gun.This supposed form of evidence was called into question by the Obama Administration:

Techdirt, and myself specifically, have had an awful lot to say about Nintendo. To be fair to me, not every post I write about the company is negative. But to be fair to anyone with a pair of eyeballs, much of it certainly has been negative. I find that the company prioritizes control of every last ounce of its IP over its own customers and fans, that the company behaves in a manner so aloof as to be almost comical, and that the company seems perfectly willing to break the entire concept of the American copyright system incentives by combatting all forms of "piracy" or use of its IP while also being perfectly willing to silo that IP in places where the public simply cannot legitimately access it.Does that sound like anyone else to you? Because it sounds like Disney to me. And, frankly, Nintendo's latest move sounds like the gaming industry equivalent to precisely what Disney has historically done with its "vaulting" of certain movies for periods of time. In this case, Nintendo has shut down the 3DS and Wii U stores, all while saying that it doesn't currently plan to make those classic games available elsewhere.

Welp. This isn't going to help future fundraising drives. Not when a public radio station is negatively affecting, you know, driving.

Over the last few years, it's been depressing to see politicians from both major political parties attacking free speech. As we noted last month, Washington state governor Jay Inslee last month started pushing a bill that would criminalize political speech. He kept insisting that it was okay under the 1st Amendment because he got a heavily biased constitutional lawyer, Larry Tribe, to basically shrug and say "maybe it could be constitutional?" But the bill was clearly problematic -- and would lead to nonstop nonsense lawsuits against political candidates.Thankfully, cooler heads have prevailed in the Washington Senate and the bill has died. The bill's main sponsor is still insisting that it would survive 1st Amendment scrutiny, but also recognized that it just didn't have enough political support:

Spotify’s decision to hitch its star to podcaster and font-of-COVID-misinformation Joe Rogan has sparked a wave of pushback from musicians, some of whom--among them Neil Young, India Arie, and Joni Mitchell--have pulled their music from Spotify in protest. Spotify, for its part, has stood firmly by Rogan.That Spotify would stand by a show that consistently undermines vaccines and blithely spreads misinformation is disappointing--but, financially, it’s perfectly predictable.The short version:The law and economics of music streaming lead to one inevitable result: Spotify pays money when it streams music. It makes money when it streams podcasts. Therefore, Spotify has an incentive to keep people using Spotify -- just not for music.The legal regime around music licensing makes breaking even -- let alone turning a profit -- nearly impossible. Because the industry is notoriously secretive about its financials (a problem in and of itself), raw data is hard to come by. But the fact remains that investors (and industry observers) agree that music streaming as a loss-leader -- something that incurs a net loss for the service doing it, in the hopes of potentially looping consumers into the parent company’s product ecosystem. Apple Music and Amazon Music, the second and third largest streaming services by market share, both operate at a loss. Spotify, which has been in the US market since 2011, turned its first profit in 2021. It is still unclear whether it will manage to repeat the achievement.In short, experience indicates that a streaming service that plays only music will consistently lose money. And while this is a complex issue with many moving parts, one of the biggest is the law -- the market it creates, and the behavior it incentivizes.But First, How Does Music Copyright Work?Each track involves not one, but two copyrighted works; the recorded performance (the “sound recording”), and the underlying composition (the “musical work”). Legally, these are two distinct things. This is partly a historical artifact; songwriting hit its stride in the very early 20th century, before mass distribution of recorded music was even a glimmer in anyone’s eye. Compositions got copyright protection in 1906 (and were thus given the now-confusingly-vague designation of “musical work”). Over the first half of the century, publishers and performing rights organizations sprang up to promote, distribute, and license songwriters’ work. It wasn’t until mid-century that the recording industry began to flourish on its own, and sound recordings didn’t even gain copyright protection until the late 1970s.Because of this history, the two industries – songwriting and recording – operate under wildly different licensing structures. Copyright is, at its core, a government-granted right to exclude; when one player starts to accumulate a high volume of those rights, the risk of abusive market behavior rises. The composition side of the equation messed around and found out early. By the 1940s, the government had intervened and set up a complex system of antitrust enforcement, rate-setting, and mandatory licensing regimes. The result was a market that, for all its faults, remains relatively stable and predictable for licensees (and, as a side benefit, provides some transparency on how songwriters are paid).The recording industry, by contrast, gained its copyright (and thus its monopoly power) in the mid 1970s. By then, antitrust law was in the middle of a Chicago school backlash that considerably narrowed its scope and purpose and regulators had lost the taste for the kind of vigorous enforcement that marked the early part of the 20th century. While regulators in the 1940s were willing to go after the songwriting industry’s bad behavior (cartels, extractive pricing, strong arm tactics, etc) their counterparts in the late 1970s were less enthusiastic. And so, unlike their composition-side brothers, labels exist in an unconstrained free market.Why It’s So Hard For Streaming Services to Make MoneyAs mentioned above, we have very little hard and fast data about how much labels are charging and what kinds of side deals they are striking to extract value from these services. But given what we do know about the industry -- and what the U.S. government has outright assumed is going on when doing things like setting royalty rates -- we have a pretty good idea.Because labels have no meaningful guardrails on their licensing practices, they are free to maximize their own profit however they see fit. When it comes to streaming, their ideal situation is to extract as much value as possible without forcing the service completely under. This means that licenses are priced with the assumption that the streaming service will have to take on some (ideally sustainable) amount of debt to cover their licensing obligations. The alternatives to this aren’t a whole lot better, either; things like equity stakes, sweetheart deals, and algorithmic preferencing or promotion are commonplace.The result of all this is that it is structurally impossible for a streaming service to turn a profit using standard music deals alone. Labels are rational economic actors. Profit is value that is not being captured by labels; labels will rationally set prices to ensure that none of that value goes un-captured. Labels have the power to shut a service down simply by walking away from the table.Why Spotify Can’t Quit Joe RoganIt means that, despite being a music streaming company, music is (and will always be) a revenue loss for Spotify. To have any hope of turning a profit, it needs a low-cost, high-revenue offering. Enter podcasts – specifically Rogan’s podcast, which commands a minimum ad buy of $1M, along with a commitment to buy other ads on Spotify-hosted podcasts.So, when forced to choose between retaining portions of its legacy music catalog and keeping one of the only offerings that actually makes the service money, Spotify made the obvious (if morally objectionable) choice. It chose Joe Rogan.And barring a major overhaul of music licensing law, starting with sound recordings, this will keep happening. We’ll either end up in a world where all mainstream streaming services will be backed by deep-pocketed tech giants (such as Apple, Amazon, and Google), or where music services are stuck relying on non-music content to stay afloat--even when that content is harmful.Meredith Rose is Senior Policy Counsel at Public Knowledge

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Protests against police violence erupted around the country following the killing of an unarmed black man, George Floyd, by Minneapolis (MN) police officer Derek Chauvin. Chauvin ended Floyd's life by placing his knee on his neck for nearly nine minutes… and for more than three minutes after another officer informed Chauvin he could no longer detect Floyd's pulse.The protests continued for months. Some were in solidarity. Others were provoked by recent acts of police violence. Protests in Phoenix, Arizona were nothing out of the ordinary. But the law enforcement response certainly was. It wasn't that the cops did anything that was unusual, per se. They did the normal stuff: they responded violently to protests against police violence, attacking protesters, stripping them of their belongings, and justifying these actions with overblown claims about fearing for their safety.But it was prosecutors in Maricopa County, Arizona who took things to the next level. Apparently working in conjunction with a number of law enforcement entities, lead prosecutor April Sponsel, an attorney with the Maricopa County Attorney's Office, lied to a grand jury and abused local laws to add gang enhancements to the criminal charges brought against 15 arrested protesters. Sponsel, working with the Phoenix PD, claimed the use of black umbrellas (which protesters used to deflect tear gas canisters and "non-lethal" ammunition) and the acronym "ACAB" ["All Cops Are Bastards"] made the arrested protesters gang members.This was serious shit. People arrested for rioting, failure to disperse, resisting arrest, or disorderly conduct were being saddled with (completely bullshit) gang charges that had the potential to add another 10 years to their sentences if convicted.Prosecutor April Sponsel appeared to have been integral to the addition of gang crime sentence enhancements. The wife of a state trooper, Sponsel was the one who presented allegedly false information to a grand jury for the purpose of portraying the arrested protesters as a violent gang, rather than people coincidentally united by their desire to protest police violence. Shortly after the news broke about these bullshit prosecutions, Sponsel was placed on administrative leave while an outside investigation -- requested by Maricopa County prosecutor Allister Adel -- commenced.Sponsel has been in the public eye for months. And she doesn't appear to like it. She may have enjoyed the backchannel support of local law enforcement as she found ways to stick it to people who were upset with the law enforcement status quo, but she apparently feels litigious about being called out over her gang enhancement bullshit.

Every year or so, the FCC unveils a new plan to combat robocalls it claims will finally tackle the annoying menace. Granted, year after year, the problem either gets worse or stays relatively the same. We've already noted that this is generally due to few things: one, a steady erosion by the courts (and lobbyists) of what the FCC can or can't actually do when it comes to various annoyances like automated spam texts or live robocalls.The other issue is that regulators and policymakers tend to frame the problem as one exclusive to scammers -- when a wide variety of telecoms, marketing, and debt collection companies use all the same dodgy tactics to annoy consumers they often know can't pay anyway. If you hadn't noticed, trying to craft rules that leave huge carve outs for "legitimate" companies while still hamstringing outright scammers generally doesn't work very well. You've also got to craft rules and systems that allow robocalls people want (medical and dental appointment reminders, for example).Even when only talking about scam robocalls, there's still room for meaningful improvement. The steady adoption of SHAKEN/STIR authentication technology has helped crack down on phone number spoofing. Targeting "gateway providers," who act as a proxy here in the U.S. for robocalls originating overseas, could also help.Meanwhile the FTC says it's also going to start filing lawsuits against voice over IP (VOIP) companies that fail to cooperate with investigations into illegal robocalls:

It's no secret government agencies love to screw with FOIA requesters. This is especially true when the responding agency doesn't care for the requester's attitude or thinks the release of information might lead to future negative reporting or embarrassment.Most agencies, however, are careful not to set up any policies -- formal or informal -- that serve to deter certain requesters. And those that do have, so far, been lucky enough to not employ a whistleblower in their FOIA departments.That's what happened to the Washington DC Metro Police Department, according to a recently filed lawsuit. Here's Elizabeth Nolan Brown with the details for Reason:

In the past, whenever Senator Richard Blumenthal has been called out for his many terrible legislative ideas regarding regulating technology and the internet, he has a habit of dismissing all of the concerns by claiming the complaints are only coming from "big tech lobbyists." He did this a few years ago with FOSTA, which has since proven to be exactly the disaster many of us warned Senator Blumenthal about at the time. This time around, he's going straight to the same playbook again, and it's good to see that he's getting some pushback. Nathalie Maréchal, from Ranking Digital Rights has published a great piece over at Tech Policy Press: No, Senator Blumenthal, I am not a Big Tech Lobbyist.Ranking Digital Rights is about as far from a "big tech lobbyist" as you can find. The organization has been advocating for the FTC to ban targeted advertising, which is basically the key way in which both Google and Facebook make the majority of their money. And yet, it also recognizes the dangers of EARN IT.The article notes that over 60 human rights groups signed a detailed letter highlighting the many problems of the bill. For Blumenthal to simply dismiss all of those concerns -- put together by respected groups who are in no way "big tech lobbyists" -- shows his pure disdain for facts and unwillingness to put in the effort to understand the very real damage his bill will do should it become law.It's shameful behavior for a US senator, even if not surprising.