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According to the YouMail Robocall Index, there were 3.6 billion U.S. robocalls placed last December, or 115 million robocalls placed every single day. That's 4.8 million calls placed every hour. Despite the periodic grumble, it's wholly bizarre that we've just come to accept the fact that essential communications platforms have been hijacked by conmen, salesmen, and debt collectors, and we're somehow incapable of doing anything about it.

This week, our first place comment on the insightful side comes from our post about Elizabeth Warren cosponsoring a bill to repeal Section 230 — before it was revealed that her name was included in error, and the post was updated. One commenter defended the apparent move as a reasonable way to fight "big tech", and an anonymous commenter responded:

Five Years AgoThis week in 2017, ISPs were getting straight to work pushing for elimination of new FCC broadband privacy rules, an FCC report clearly said that AT&T and Verizon were violating net neutrality. At the same time, AT&T was planning to dodge a review of the Time Warner merger, and Verizon was claiming nobody wants unlimited data. We took a look at the effects of Oracle v. Google on copyright litigation, and Backpage officially killed its adult ads section under widespread pressure.Also, and most notably, this was the week we announced that we had been sued for $15 million by Shiva Ayyadurai.Ten Years AgoThis week in 2012, the SOPA fight continued. There was some Reddit drama that led to Paul Ryan coming out strongly against the bill, concerned tech experts finally got a chance to talk to congress (but not the Judiciary Committee), the co-chair of the Congressional Cybersecurity Caucus said SOPA would interfere with online security, and a study showed that news networks owned by SOPA supporters were largely ignoring the subject. Wordpress became the latest big tech company to oppose the bill, then Reddit announced its plan to black out the site for a day — an idea that gained steam with the Cheezburger Network announcing its sites would do the same, and Jimmy Wales saying he favored Wikipedia joining too but wanted the community to decide. As the bill became toxic, Congress started talking about dropping the DNS blocking provisions, which led to some uninspiring promises to "delay" them, and then it started to look like the entire bill would be delayed.Fifteen Years AgoThis week in 2007, cable companies were twisting themselves in knots trying to explain how price increases were actually price decreases, the fight over the broadcast flag continued, and the PERFORM Act was back from the dead. A judge in Brazil freaked out about YouTube and ordered ISPs to block it until Google followed a previous order to shut it down, but that judge apparently learned a few things about the internet and rescinded that previous order the next day.Also, this was the week that the rumor mill was replaced by reality and Steve Jobs officially announced the iPhone in his Macworld keynote address.

One of the more annoying trends in intellectual property is when regional consortiums try to lock up terms or language around a specific style of product with arguments that only that region can produce a certain thing. If you're familiar with this concept, the first thing to leap to your mind will likely be one French wine group's control over the term "champagne" in certain regions. Another example would be a consortium of Belgian chocolate makers trying to assert that nobody can advertise "Belgian-style chocolate" unless it comes from one of them. It's all very silly, as it attempts to take a term that everyone recognizes as describing the style of a product and transform it into locked up language to be controlled by some specific originators. Like I said, silly, though, far too often, these consortiums get their way.Not the case in the United States for a group of French and Swiss cheese-makers in the area surrounding Gruyeres, who attempted to get the term "gruyere" trademarked. After the the U.S. Dairy Export Council opposed the mark, and the USPTO somehow got this right for once and rejected the application over the term being generic, the Interprofession Du Gruyere and Syndicat Interprofessionel du Gruyere took the matter to the Eastern District of Virginia courts only to find the judge there has ruled against it too.

Cops are still claiming they can detect the odor of marijuana in moving vehicles. Not only that, they claim they can pinpoint the source, even when in traffic.Not every court has been supportive of this speculative fiction. A federal court in Indiana found an officer's testimony literally "incredible" when he claimed he could smell the odor of marijuana emanating from two sealed plastic bags located inside a car traveling in heavy traffic with its windows up. The court said this testimony was not only "implausible" but "contrary to the laws of nature."The same can't be said for this decision from the Eighth Circuit Appeals Court, which originated in Iowa. The same claims were made here by two officers, who used their apparently superhuman olfactory senses to locate weed in a passing car -- one that similarly travelled through heavy traffic. In this case, both the cop car and the targeted car had some windows down. But even so, it's difficult to believe officers were capable of pinpointing the odor in traffic while dealing with "swirling winds."The cops lucked out on this stop. They discovered some marijuana ash and an unsmoked blunt during the stop. They also recovered a handgun, which led to the federal charges Vernon Shumaker was hoping to have dismissed due to the apparent unreasonableness of this search.Here's how the stop was effected, according to the Eighth Circuit's decision [PDF]:

Gaming Like It's 1926: The Public Domain Game JamThis year, for the fourth year in a row, we're celebrating the entry of new works into the public domain with our public domain game jam: Gaming Like It's 1926. We're calling for submissions of games inspired by or making use of material that entered the public domain this year.We're approaching the halfway point of the jam, so there's still plenty of time to sign up on itch.io and start working on an entry! You don't need to be an experienced game designer to get involved — entries can be as simple as a page of instructions for a roleplaying game or rules that require a normal deck of playing cards. If you want to try your hand at making a digital game, there are easy-to-use tools out there like Story Synth, created by our partner in running these jams, Randy Lubin.Whatever approach you choose, be sure to read over the full rules on the jam page. And if you want to explore some newly public domain works to find inspiration, check out Duke University's overview and the Public Domain Review's countdown. On that note, while the jam is mostly to encourage the reuse of public domain works from 1926, this year we're also open to earlier sound recordings (stuff from 1922 and earlier) that also just went into the public domain due to the Music Modernization Act. The Internet Archive has made a bunch of those sound recordings available as well.At the end, we'll be choosing winners in six categories:

You most likely have never heard of Ord, Nebraska. There's no reason you should have. Obviously, the town's government would prefer you've heard of it, but it's impossible to be well-informed about every small town in a country the size of the United States. Here's how the town government pitches its wares:

Big Update: It turns out that this was a clerical error on the part of a Senate staffer, and that Elizabeth Warren is not co-sponsoring this bill from Lindsey Graham to repeal Section 230. The Congress.gov site is expected to be corrected and her name removed as a co-sponsor some time soon. I am leaving the original story below for posterity, but it's good to see that Senator Warren hasn't gone completely over to the dark side on this.Original story here:

So, just yesterday I wrote about how Democratic Senators had been shying away from co-sponsoring bills with Senator Josh Hawley. Throughout 2019 and 2020, even as Hawley's populist fascist tendencies had become abundantly clear, Democrats were willing to partner with him because he was "anti-big tech." But after January 6th of last year, suddenly Hawley was left shouting on Fox News, rather than teaming up with Democrats to sponsor bills to regulate the internet.So... it was more than a bit of a surprise that, yesterday, Senator Elizabeth Warren's name popped up as a co-sponsor on S.2972, a bill from Republican Senators Lindsey Graham, Josh Hawley, and Marsha Blackburn, to literally repeal Section 230.It's such a bizarre and nonsensical move. Even for Senators who support reforming Section 230, repealing it seems unlikely to accomplish what they think it will. And, even more to the point, Warren is apparently already aware of how removing Section 230 can cause significant harm. She was behind a previous bill in the Senate that was designed to study the impact of FOSTA on sex workers, after tons of people realized (way too late, and despite widespread warnings from multiple experts) that FOSTA would create massive consequences for the sex work industry (and related industries).Over the last couple of years, ever since she lost the Presidential primary, Warren seems to have shifted further and further away from the thoughtful Senator "with a detailed plan to fix things" to one who has fully embraced pure, naked, populism for the sake of political gain. She's especially leaned hard into attacking internet companies in ways that are extremely disappointing. Even if you believe that the big internet companies (and the wider internet itself) require regulation -- an argument that is easily defensible -- she has embraced truly extreme and unconstitutional positions that generate headlines and screams of support from people who just want to punish big companies, rather than create a better world.This latest move -- teaming up with three extremist Republican Senators -- on a bizarrely stupid and dangerous plan to flat out repeal Section 230 makes absolutely no sense at all, and I don't see how it accomplishes any of Senator Warren's stated goals. Without Section 230, you end up helping the largest internet companies cement their position, while punishing smaller competitors and killing them with legal liability for things that they didn't actually do.This is an unfortunate and cynical move by a Senator who I had thought was better than that.

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Harrison Greenbaum is a comedian and (sometimes) magician, who noticed that the magician Criss Angel had opened a restaurant, named "CABLP" and hadn't registered the domain cablprestaurant.com. For whatever reason, the restaurant's actual website appears to be Eatblp.com, and so Greenbaum registered cablprestaurant.com and created a very obvious parody menu. I mean:It took me way longer than it should to figure out that CABLP apparently stands for Criss Angel's Breakfast, Lunch & Pizza. Either way, this just seems like a bunch of nonsense, except that Criss Angel apparently is spending some of his very large fortune on hiring an actual intellectual property lawyer named Thomas Carulli from the law firm of KMA Zuckert to send a very bogus cease and desist letter to Greenbaum.

This week saw the introduction of the The Terms-of-service Labeling, Design and Readability Act, or "TLDR Act," for short. The bill, which, for now, has bipartisan support, would require the FTC to create rules mandating that websites must offer a truncated version of obnoxiously long and predatory terms of service (TOS) nobody actually reads. The "summary statement" websites would be obligated to provide would not only lay out the legal requirements in terms normal humans could understand, it would also require a website disclose any major data breaches that have occurred in the last three years.A breakdown (pdf) of the bill also states it will require websites to disclose what data is collected upon a user's visit, and what kind of control a user has over that data. Any violation of the new law would be declared to be within the realm of "unfair and deceptive" under the FTC Act, giving the agency the authority to act on it. Rep. Lori Trahan had this to say about the need for such a law:

Did you all just hear that? That tiny, nearly silent series of screams you hear all around you? Well, that was the entire craft beer industry crying out in fear and pain. Why? Well, because Monster Beverage Corp announced that it is going to be a brewery.

One of the hottest gifts in Wisconsin over the holiday season was Packers “common stock,” allowing fans who buy in to hold a small percentage of ownership in the NFL franchise. The Packers are selling 300,000 shares of the stock priced at $300 to raise money for stadium improvements at Lambeau Field and sold more than 100,000 in the first week alone. Many are skeptical of why fans are spending hundreds or thousands of dollars on shares that, by rule, cannot provide them with any financial benefit. You can find an explanation by looking at a seemingly unrelated technology: non-fungible tokens. An examination of the market for NFTs not only provides insight into the “common stock” phenomenon, but may also provide a glimpse at a different future for how we support and even participate in the decision-making process of our favorite sports teams.Packers Stock as an NFTThe Packers ownership structure is unique in the National Football League. The NFL has rules requiring that franchises be owned by an individual or a small group of owners. The Packers have an exemption to this rule, as the team has been owned by stockholders since 1923 when it sold shares of the organization to keep the team financially solvent and located in Green Bay. Stockholders were prevented from selling their shares to anyone but the team for a fraction of the purchase price in order to prevent the team from being sold to an individual and then moved to a larger market. The Packers held similar stock sales in 1935 and 1950.After financially stabilizing the team, further stock sales were held in 1997 and 2011 to fund additions and redevelopment to their stadium. Previous stockholders were given large splits, essentially guaranteeing that they had an outsized role in leadership decisions of the franchise.Shares sold in 1997, 2011, and 2021 provide minimal benefits to those who purchase them. They provide a uniquely numbered ownership certificate, the ability to purchase owners-only merchandise, an invite to the annual owners meeting, and votes to decide Green Bay's board of directors and a seven-member executive committee that represents the team at league meetings. The maximum number of shares an individual can purchase is 200, and stock cannot be resold and may only be transferred to immediate family members.Still, despite minimal benefits and the heavy restrictions, these sales have been enormously popular, with the offerings raising $24 million in 1997, $64 million in 2011, and a projected $90 million this time around. Today there are approximately 361,300 stockholders, including myself, who hold roughly 5 million shares.So what does Packers stock have to do with NFTs?NFTs face much of the same criticism as Packers stock. Created to provide scarcity to digital art and other online goods, the NFT market has increased rapidly in scope with many NFTs selling for millions of dollars in cryptocurrency. Many see NFTs as nothing but a scam on unsuspecting customers as NFTs provide little to no tangible benefit to those who purchase them — just like Packers stock.But people who buy Packers stock or NFTs seem to value these commodities for the same reason. Packers fans are proud of their team's ownership structure and want to display the part they play in keeping the Packers a fan-owned team. And as Techdirt's own Mike Masnick recently noted in a podcast, owning NFTs is also a way to prove fandom. While NFTs do not grant a copyright on an image, the blockchain does provide a proof of ownership of the NFT for all to see.Both provide a kind of status symbol of fandom for those interested in the industry to view.While Packers stock shares traits with NFTs, it lags behind as the process of sending the stocks and verifying who owns them remains offline. Likewise NFTs have yet to contemplate what role they might play in sports beyond providing ownership of sports moments such as NBA Top Shot. The following will provide some ways in which these models might converge to bring both different experiences to fans and even provide for a decentralized governance model for sports team ownership.Stock and NFTs as FandomWithout a doubt, the most popular use of Packers stock isn't attending the owners meeting or voting on the future of the team; it's displaying the certificate of your share in your home or office. Many fans own stock from each of the major sales to display together and prove their extreme Packers fandom. In this way, Packers stock is most similar to NFTs, though the digital nature of NFTs lets them be displayed to the whole world rather than just those who can physically see the stock (photos posted on the internet notwithstanding).There is no reason a marriage of the physical and digital couldn't take place with Packers stock, or other forms of fan involvement.Some of the most obvious venues are social media platforms like Twitter, which is working on integrating NFTs into the user experience. Fans of teams are often incredibly vocal on Twitter, and sometimes that gives them the chance to interact with players and other professionals on their favorite teams. If stock ownership could be converted into an NFT to be displayed on a Twitter profile, similar to the much desired blue checkmark, an owner's praise or criticism of their team might carry extra weight. At any rate, making the stock verifiable and compatible for digital display would certainly make ownership more valuable.Still, stock ownership of a professional sports team only applies to one major American sports team. There is no reason, however, the same principle couldn't be applied to other ways of proving fandom. Many fans have season tickets which could easily come with an NFT recognizing the fan as a season ticket holder. For that matter, there is no reason a team couldn't simply sell “fandom” NFTs serving a similar purpose.Proof of fandom and displaying of NFTs certainly provides some promise, but there is far more that can be done to enhance the fan experience.As previously noted, one of the benefits of owning Packers common stock is a yearly invite to attend the owners meeting in Green Bay. While the event is well attended, nowhere close to the more than 3 million shareholders attend the event. The fact that I live more than 1,000 miles away prevents me from attending the meeting in any meaningful fashion.But virtual reality spaces could provide an opportunity for that “in-person experience” at the owners meeting without the need for travel. I could interact with fellow owners in specific rooms, attend panels or keynotes about the future of the franchise, and even take virtual tours of the new facilities or additions.Once again, this concept need not be limited to NFTs denoting stock ownership. As a season ticket holder to the New Orleans Pelicans, I was invited to a private event with the team’s head coach, but I was unable to attend in person. If my season ticket purchase had come with an NFT that granted me access to such events in virtual reality, not only would I be a happier fan, but I’d also be willing to pay more for the season tickets rather than just purchasing them on a game to game basis. (Interestingly enough, due to the recent surge in COVID-19 cases, this event was held via video call)There are any number of similar benefits that could be available to team shareholders, season ticket holders, or fandom NFT owners on social media or virtual reality. Events on Twitter Spaces could be available exclusively to those with the correct NFT. Virtual reality could host any number of events, such as an owners-only viewing party of a game, or access to exclusive opportunities to meet and talk to players and coaches. Like the physical merchandise only available to Packers shareholders, digital goods could be made exclusively available to certain fans.There is little doubt that NFTs will continue to be intertwined with sports fandom for some time to come, but the potential for better fan benefits has only just started to be tapped.NFTs as a Decentralized Ownership ModelNFTs’ capacity to showcase fandom is one thing, but what if they also offered fans the opportunity to have a real say in the future of the sports franchise they love?As previously noted, one of the benefits of Packers common stock ownership is voting rights on the future of the team. With the cap of 200 stocks per person and the generous split offered to owners of the first three stock sales, the average fan is unlikely to cast the deciding vote in any decision, nor are they allowed to vote on big decisions such as firing and hiring of the general manager.Nonetheless, marginal voting rights are still more powerful than the average sports fan has in making decisions about the team. They also prevent a single owner from having an outsized role in the future of the franchise. This is why so many fans of teams that have had little success often complain about bad ownership more than the players on the field. The Packers have been able to avoid this fate, and the lack of centralized ownership likely plays an important role in the team’s success throughout its history.There are even some ancillary benefits to this model. For example, the Packers are the only NFL team to publicly report their financial status, giving fans of every team a glimpse into the rest of the league’s finances. This provides substantial benefit to fans and politicians when NFL owners come crying to politicians about needing taxpayers to pay for a new stadium.But there is no reason the basic Packers structure couldn’t be updated for the digital age to allow fans to have a greater say in their favorite team. While the NFL has banned any other franchise from operating in this capacity (after all, what are professional sport leagues but cartels to enrich existing team owners), start-up leagues could borrow from this model. Furthermore, they already have a decentralized system for which to test this model of decision-making.Decentralized Autonomous Organization (DAOs) could provide a vehicle for future ownership or decision-making for sports teams. DAOs are built with smart contracts, which are self-enforcing digital arrangements. A good way to visualize a smart contract is a vending machine. The contract is fulfilled when a user inserts the right amount of money and the correct item is automatically dispensed to the purchaser. In the DAO space, it would be inserting the correct NFT or other digital token in order to vote.A recent example of democratic governance within a DAO was the Constitution DAO, where a group of people wanted to bid on purchasing one of the 13 remaining original copies of the U.S. Constitution. The donors of the project, who donated in Ethereum, were granted the ability to vote on what to do with the Constitution if they won it. Over $40 million worth of Ethereum was donated, though the bid ultimately proved to be unsuccessful. While deciding what to do with a document isn’t as complicated as running a professional sports franchise, it certainly provides some proof that large amounts of funds can be raised in a DAO.While it might be impractical to put every decision of the team up to a disbursed number of owners, large decisions like a vote of confidence in the general manager or head coach could very well be possible.The NFL or another major sports league would prove a poor test case for this structure of sports ownership, at least initially due to the size and scope of the organization as well as the rules governing operation. But there are any number of other smaller sports leagues where this could be tested.The United States Football League, a league which previously competed against the NFL in the 1980s and even won an antitrust court case against the league, is planning a relaunch in 2022. Unlike the NFL, it is expected that the new USFL will operate as a single entity with all teams owned by the league. But instead of simply expecting fans to attend and watch games, what if the league offered them a real chance of ownership of the team by selling stock in teams as a form of NFT?This ownership of the team could be used in any number of ways. Fan ownership of the team might be a way to give people a stake in their team and create loyalty with a new franchise. The league could even decide where to put teams by letting “owners” vote on where teams should be located. If the residents of New Orleans purchased stock NFTs of the New Orleans Breakers team and voted to move the team to New Orleans, the league might feel better about their location decision. What better way to prove a particular city has interest in supporting another sports franchise than by having citizens literally be invested in the team?Additionally, without previous governing arrangements, these franchises could put far more decision-making power into owners. Everything from the large decisions like hiring or firing of general manager and head coach to choosing a starting quarterback, or smaller ideas like selecting a mascot, could be run through a vote of the DAO.Decentralized ownership provides a few benefits beyond greater fan involvement. The dispersed ownership structure of the Packers can help prevent a bad owner from making bad decisions causing the franchise to suffer. A DAO could rather easily prevent an individual or group of individuals from amassing too much power. Just ask Washington Football Team fans how they feel about Dan Snyder. Additionally, it would prevent the problem of general fan polling, where teams end up with mascots like Dogey McDogeface—presumably, fans invested in the team would like to see it succeed.This model of sports ownership could even be tried with independent baseball teams in America or as a way to support historic franchises, such as the second oldest soccer club Wrexham A.F.C, rather than relying on millionaires to pick up the tab.Whether or not the Packers model can be replicated is a serious question, but that doesn’t mean that advances in technology aren’t well positioned to impact and potentially disrupt the professional sports world. Fan interest and involvement in the sporting world remains high, and the potential for crowdfunding and decentralized decision-making are improving all the time. Sports franchises are ultimately dependent on fan support to exist. Why not give fans a bigger say in how they root for, or even run, their team?Eric Peterson is a contributor to Young Voices and lives in New Orleans.

Karl recently wrote about how Congress' antitrust efforts are flailing (even with the plan to hold a hearing on Senators Klobuchar & Grassley's antitrust bill) and one reason why the efforts have stumbled may be Senator Josh Hawley's decision to really show off his fascist side.We've been pointing out the serious problems with Hawley and his policy ideas since long before January 6th of 2021. Even though it was fairly clear from early on that his hypocritical posturing and populism were little more than a cynical attempt to get the Trumpian base to back his massive ego and ambition for a potential Presidential run, a bunch of Democrats were happy to cynically embrace Hawley because he was "anti-big tech" and willing to hate all the same people that some Democratic Senators hated as well. Of course, January 6th and Hawley's now infamous raised fist appear to have resulted in Democrats realizing that even if he hates Mark Zuckerberg too, that doesn't mean he's worth working with.Now the Washington Post has noted that since January 6th, Democrats suddenly were no longer willing to partner with Hawley on bills that regulate "big tech," which is a bit of a problem, since he was their Republican co-sponsor on a variety of "bipartisan" legislation.

For decades the U.S. newswires have been peppered with stories where somebody bought a house after being told by their ISP it had broadband access, only to realize the ISP didn't actually serve that address. Generally, the homeowner then realizes they have to spend a stupid amount of money to pay the local telecom monopoly to extend service.. or move again. Time after time, local ISPs are found to be flat out lying when they claim they can offer an essential utility (broadband), and the home buyer has little recourse thanks to the slow, steady erosion of U.S. state and federal telecom regulatory oversight.So yeah, one problem is that we continue to lobotomize our state and federal telecom regulators under the bullshit claim that this results in some kind of free market Utopia (you'd think everyday reality would have cured folks of this belief by now, but nope). The other underlying culprit has generally been America's notoriously shitty broadband maps, which let regional monopolies obscure the patchy coverage, slow speeds, and high prices created by regional monopolization so American policymakers can more easily pretend none of this is a problem.State telecom consumer protection is generally feckless, with the entirety of telecom policy in most corrupt state legislatures directly dictated by AT&T or Comcast. Washington State continues to be one of just a few exceptions. In the last few years the state has killed a protectionist law designed to hamstring community broadband, passed its own net neutrality laws in the wake of federal apathy, and has actually stood up to the longstanding telecom industry practice of ripping off consumers with bullshit fees. Now, the state is also passing a new law requiring that home sales disclose whether the home actually has broadband:

Do you want cheer fucked? Because this is how you get cheer fucked.No less than the highest court in the land said the off-campus speech of students is subject to the First Amendment, not the whims of school administrators who feel ways about online stuff. A cheerleader expressing her displeasure with school related activities posted a litany of f-bomb-laden complaints to Instagram, resulting in her being summarily dismissed from the cheer team. The Supreme Court said "fuck cheer" is protected speech, no matter how school administrators felt about it.Students' constitutional rights don't disappear just because they're students. This point has been driven home several times by courts, most famously by the Supreme Court's 1969 Tinker decision, which stated:

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Senator Richard Blumenthal seems to fill our pages with every possible moral panic about an internet he doesn't understand, but on which he's made a name over-reacting to. This goes back over a decade, honestly, since well before he was even a Senator.For the last few months he's been really ramping up the moral panic about TikTok, complaining about various trends on TikTok and demanding execs testify before him. The latest is that he has sent a letter to TikTok's CEO, Shou Zi Chew, demanding an explanation of how a kid in Connecticut (Blumenthal's state) was burned by messing up a science experiment called the "Whoosh Bottle Experiment." Lots of news sites -- and Blumenthal in his letter -- imply that "The Whoosh Bottle Experiment" is some sort of TikTok thing.

Senator Richard Blumenthal seems to fill our pages with every possible moral panic about an internet he doesn't understand, but on which he's made a name over-reacting to. This goes back over a decade, honestly, since well before he was even a Senator.For the last few months he's been really ramping up the moral panic about TikTok, complaining about various trends on TikTok and demanding execs testify before him. The latest is that he has sent a letter to TikTok's CEO, Shou Zi Chew, demanding an explanation of how a kid in Connecticut (Blumenthal's state) was burned by messing up a science experiment called the "Whoosh Bottle Experiment." Lots of news sites -- and Blumenthal in his letter -- imply that "The Whoosh Bottle Experiment" is some sort of TikTok thing.

For decades, like clockwork, somebody at Dish or DirecTV will try and float the idea that the two satellite TV companies should merge. Usually they'll do this by seeding the idea at trusted news outlets that additional consolidation is just what the U.S. media sector needs. Granted regulators have always balked at the idea of a Dish and DirecTV merger, given that it would only reduce competition in the pay TV space, leading to more layoffs, more price hikes, and even worse customer service (cable TV customer service is among the worst in any industry anywhere thanks to this "growth for growth's sake" mindset).Like clockwork, somebody involved in the deal-making has leaked word of yet another attempt to merge the two companies to the New York Post:

In the video game space, it has become commonplace to see creators freak out over "rip-offs" and "clones" of their games when the targets of their ire are actually not rip-offs or clones at all. This typically comes down to the all to common confusion over whether you can own or protect ideas versus specific expression. Typically in these stories, it turns out someone is complaining that they're seeing a similar idea in other games, whether it's first person shooters that share common features, the explosion of battle royale games, or even just artwork.Which brings us to Wordle, a browser-based game that I gleefully enjoy telling my fellow Techdirt readers I have not played. However you feel about the game, it's notable in that its creator has been adamant about not monetizing the game, nor has he bothered registering any copyright or trademark for it. Between that and the game's popularity, there is a ton of goodwill there, which may explain why the world smacked down another person's attempt to actually clone (basically) the game into a mobile app that then required paid subscriptions for all of the features.

Summary:In the lead-up to the 2018 midterm elections in the United States, progressive voters in seven competitive races in the Midwest were targeted with a series of Facebook ads urging them to vote for Green Party candidates. The ads, which came from a group called America Progress Now, included images of and quotes from prominent progressive Democrats including Bernie Sanders and Alexandria Ocasio-Cortez with the implication that these politicians supported voting for third parties.The campaign raised eyebrows for a variety of reasons: two of the featured candidates stated that they did not approve the ads, nor did they say or write the supposed quotes that were run alongside their photos, and six of the candidates stated that they had no connection with the group. The office of Senator Sanders asked Facebook to remove the campaign, calling it “clearly a malicious attempt to deceive voters.” Most notably, an investigation by ProPublica and VICE News revealed that America Progress Now was not registered with the Federal Election Commission nor was any such organization present at the address listed on its Facebook page.In response to Senator Sanders’ office, and in a further statement to ProPublica and VICE, Facebook stated that it had investigated the group and found no violation of its advertising policies or community standards.Two years later, during the lead-up to the 2020 presidential election, an investigation by the Washington Post revealed a “troll farm”-type operation directed by Rally Forge, a digital marketing firm with connections to Turning Point Action (an affiliate of the conservative youth group Turning Point USA), in which multiple teenagers were recruited and directed to post pro-Trump comments using false identities on both Facebook and Twitter. This revelation resulted in multiple accounts being removed by both companies, and Rally Forge was permanently banned from Facebook.As it turned out, these two apparently separate incidents were in fact closely connected: an investigation by The Guardian in June of 2021, aided in part by Facebook whistleblower Sophie Zhang, discovered that Rally Forge had been behind the America Progress Now ads in 2018. Moreover, Facebook had been aware of the source of the ads and their deceptive nature, and of Rally Forge’s connection to Turning Point, when it determined that the ads did not violate its policies. The company did not disclose these findings at the time. Internal Facebook documents, seen by The Guardian, recorded concerns raised by a member of Facebook’s civic integrity team, noting that the ads were “very inauthentic” and “very sketchy.” In the Guardian article, Zhang asserted that “the fact that Rally Forge later went on to conduct coordinated inauthentic behavior with troll farms reminiscent of Russia should be taken as an indication that Facebook’s leniency led to more risk-taking behavior.”Company considerations:

The state of Illinois continues to provide more protection than the US Constitution. Its privacy laws exceed what has been determined to be "reasonable" violations of privacy by decades of court precedent. This has allowed it to go after companies for violating state laws, even when the collections being prosecuted would likely be legal under the Supreme Court-created "Third Party Doctrine."State law allowed Facebook to be successfully sued over its facial recognition program -- one that detects faces and attempts to match them to Facebook profiles to "tag" photos with names of account holder's "friends." This resulted in a $550 million settlement from Facebook -- a relative bargain considering the original asking price was $35 billion.It also has allowed the state to move forward with its lawsuit against odious facial recognition tech provider, Clearview. Clearview sells access to its database and AI to government agencies for the alleged purpose of identifying criminal suspects. The AI -- finally independently tested years after its debut -- appears to be fairly solid. But its 10 billion image (and counting) database is composed of images and personal info scraped from thousands of websites and social media platforms. According to the state of Illinois, this collection violates state privacy laws because Illinois residents are not informed of this collection, nor are they given any opportunity to opt in or out.Third parties aren't the only ones availing themselves of data harvested from the web. Government agencies are taking advantage of massive collections assembled by data brokers. The assumption by law enforcement is that no warrant is needed to obtain location info and identifying information from third parties because there's no expectation of privacy in information shared with apps, websites, and service providers.It should be clear that's likely not acceptable in Illinois where state law regulates these collections to ensure end users are protected (at least somewhat) by mandates requiring notification and consent. Nonetheless, law enforcement persists in accessing this data, assuming their actions aren't illegal even if the collections they're accessing have been illegally obtained.That's going to change. A new law that went into effect at the beginning of this year says Illinois law enforcement can no longer access this information without a warrant.

Register now for our online event featuring Rep. Zoe Lofgren »Next week is the ten year anniversary of the famed "Internet Blackout Day" in which internet users, together with activists, and some internet companies, spoke up together and told Congress that passing the Stop Online Piracy Act (and the Senate Companion, the Protect IP Act), would do tremendous damage to the internet. Lots of organizations are hosting events and doing other things to commemorate that momentous occasion -- but also trying to channel that spirit towards building a better internet.And that includes us at Techdirt. We're going to be running a new Techdirt Greenhouse series with reflections from a bunch of people who were involved in the original fight, both looking back at what happened ten years ago, but also what's happened in the intervening decade, and what it means for the internet, for activism, for tech policy, and for users of the internet going forward.On top of that, we're going to be hosting a live (virtual) event on January 26th at 1pm PT, with a fireside chat between myself, and one of the main heroes of the stop SOPA movement: Rep. Zoe Lofgren. The event will also include breakout discussions and a chance to network and connect with others interested in tech policy and the future of the internet. Register now to join the event!

As you'll recall, at the end of 2020, the FTC filed an antitrust case against Facebook. Last summer, the district court dismissed the case, noting that the complaint was "legally insufficient," and didn't really back up its central claims. Based on that, the FTC went back to the drawing board and filed an amended complaint last August. As we noted, the amended complaint was better than the first one -- which was heavy on narrative, but little on support to back it up. The amended complaint had more in it, though we still felt that the market definition was odd, and some of the complaint seemed to undermine other parts of it.Either way, Facebook again asked the court to dismiss it, but this time, they're letting the case move forward. Basically, the court says that on a second pass, the FTC has actually provided at least some support of the central arguments in the complaint:

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During the COVID crisis the FCC launched the Emergency Broadband Benefit (EBB program), which gives lower income Americans a $50 ($75 for those in tribal lands) discount off of their broadband bill. Under the program, the government gives money to ISPs (not exactly ideal given the industry's history of fraud), which then dole out discounts to users if they qualify. But (surprise), many found that big ISPs erected cumbersome barriers to actually getting the service, or worse, actively exploited the sign up process to force struggling low-income applicants on to more expensive plans once the initial contract ended. Very on brand.The program was recently renamed the Affordable Connectivity Program (ACP) and made permanent via the infrastructure bill, albeit at a reduced discount rate of $30 a month (still $75 on tribal lands). And because the reboot requires new rules, the FCC has proposed tightening up the rules surrounding the program to ensure the large predatory ISPs don't exploit it to make an extra buck. More specifically, the FCC says ISPs will be required to offer the discounts across all tiers, including legacy and "grandfathered" (older, possibly cheaper plans that they may not sell any more) plans:

Poland -- like far too many countries -- has a Pegasus problem. The highly intrusive (and highly effective) phone malware sold by Israel's NSO Group for the ostensible purpose of tracking down terrorists and other deadly criminals has been observed (yet again) being deployed to track government critics and political opponents.When Apple announced its lawsuit against NSO Group for targeting iPhone users, it also announced plans to notify users who had been targeted by NSO spyware. The first beneficiary of this notification program was a Polish prosecutor who was apparently targeted for trying to investigate election irregularities.That initial notification opened the floodgates. The Polish government had access to the spyware and was deploying it for reasons entirely unrelated for the reasons it stated when purchasing it.

Back in October, I noted the huge amounts of money pouring into music copyrights, largely driven by the global rise of online streaming. Since then, that trend has continued, most notably with Bruce Springsteen's sale of his recordings and songwriting catalogue to Sony, for a rumored $550 million. As I pointed out in the post, one of the problems with this "financialization" of the sector is that music copyrights become completely divorced from the original creativity that lies behind them. They become just another asset, like gold, petroleum or property. On the Open Future blog, Paul Keller has pointed out a plausible – and terrifying – consequence of this shift.As Keller notes, the more the owners of copyrights become detached from the creative production process, the less they will care about the nominal balances within the system. In particular, the central quid pro quo of copyright – that a government monopoly is granted to creators for a limited period, after which the work enters the public domain – will be perceived simply as an obstacle to greater profits. The financialization of the music world means that an artist's ability to use the public domain as a foundation for future creativity, or to take advantage of copyright exceptions, will be of no interest to the corporations and private equity firms that are only concerned about the value of their own assets. For Keller, the end-game is clear:

The New York Police Department is complaining about having to do work again. The New York Post reports officers are unhappy that they're required to do a little bit more paperwork for every stop, regardless of whether the stop results in a citation or arrest.

For years we've talked about the infamous Facebook lawsuit against Power.com. As you may recall, this was a key CFAA case against a site, Power.com, that was trying to create a social media aggregator dashboard -- in which you could login through a single interface, and access content from and post to a variety of different social media platforms. Facebook alleged that this was a form of hacking -- claiming it was "unauthorized access" to Facebook. This was even though there was no actual unauthorized access. Individual users gave Power their login credentials, so everything was completely authorized. After years of winding through the courts, unfortunately, it was decided that this was a violation of the CFAA, mainly because Facebook sent a cease & desist letter, and somehow going against that now made it "unauthorized." In my mind, this is one of the biggest reasons why Facebook has much less competition today than it otherwise might -- because it used the CFAA and cases against Power.com to create a "you can check in, but you can't check out" kind of data arrangement. Things like Power.com were an empowering system that might have made people much less reliant on Facebook -- but it was killed.In an age now where people are increasingly talking about the importance of data portability and interoperability, something like Power.com would be a useful tool.So, it's interesting (and a little disturbing) to see that Facebook's new corporate identity, Meta, has now sued another company for data scraping. It is notable that in this case, the defendant, Social Data Trading Ltd., is a lot less sympathetic a character than Power.com was. And -- more importantly -- Facebook is not using the CFAA this time (other cases have suggested that what Facebook got away with in the Power case it would no longer be able to get away with under that law). However, it is trying to use California's state law equivalent of the CFAA. And now matter how you look at it, it's still at least a little worrisome that Facebook (ok, whatever, Meta) believes it has a legal right to stop scraping of otherwise public data.So first, Social Data Trading is not sympathetic. It appears to be a sketchy service in its own right, scraping data on social media users to sell "in-depth insights into the demographics and psychographics of influencers and their audiences." Meta put in place some technical blocks to try to stop the company from scraping (which seems like fair game), but SDT would then just register new domains and continue scraping. Facebook had apparently tried to stop a predecessor company to Social Data Trading called "Deep.Social," though the complaint seems to imply that SDT is just a reworking of Deep.Social.The more difficult issue here is that part of the way that SDT did its scraping was by creating fake accounts on Facebook and Instagram, and then using those fake accounts to scrape the data. And that does bring things into a legally more complex area, but also gives Meta the route around to go after these guys without using the CFAA.At issue is that when you create one of those accounts... you agree to the terms of service, and those terms say you can't use the site for "collecting information in an automated way." Thus, the core argument here is that it's a breach of contract case, and that the SDT folks agreed to the terms and then broke them by using their fake accounts to scrape.

Politicians -- those motivated by the notion of "doing something" -- want to end encryption. They don't want this to affect their communications and data security. But they don't see the harm in stripping these protections from the general public. Often, the argument is nothing better than "only criminals want end-to-end encryption," something they trot out as a truism despite plenty of evidence to the contrary.But these politicians (and government officials) are cowards. They refuse to call a backdoor a backdoor. They come up with all sorts of euphemisms while pretending compliance with proposed laws won't result in the creation of backdoors that can be exploited by everyone, not just the "good guys." They also deploy other euphemisms to attack encryption that protects millions of members of the public, referring to good encryption as "warrant-proof" or "military-grade." Those terms never survive examination, but the narrative persists because most members of the public have no interest in closely examining falsehoods uttered by governments.The UK government has expressed an unhealthy determination to undermine encryption for years now. It has the fanciest of plans to undo protections enjoyed by UK residents for reason ranging from "the children" to "the terrorists." The underlying intent never changes even if the name on the office doors do. Regulators come and go but the desire remains. Even the bills get renamed, as though a different shade of lipstick would make the UK's anti-encryption pig any more desirable.Rebranding from "Online Harms" to "Online Safety" only changed the tablecloths in the Titanic's dining room. The UK government wants encryption dead. But presumably "safety" sounds better than "harms," especially when the government affirmatively wants to harm the safety of millions of UK residents.The Internet Society has taken a look at the revamped and rebranded bill and has delivered a report [PDF] that explains exactly where on the Internet doll the UK government plans to engage in inappropriate touching. There's no mention of backdoors or broken encryption, but complying with the law means possibly doing both.

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Like lots of other places around the globe, it appears that Israel is considering a dangerous social media censorship bill, that would force websites to remove content. It does have some safeguards, but, basically, if law enforcement claims a crime was committed via the publication of some content, a judge can issue a takedown order:

Much of last year was dominated by talk about how there was a "new, bipartisan coalition" of folks interested in "reining in big tech" via "antitrust reform." The GOP in particular, which has, for forty years, largely embraced and encouraged monopolization and consolidation at every turn (see telecom as a shining example) was repeatedly portrayed as "very serious about antitrust reform this time." At least as it applied to "big tech." There are countless U.S. business sectors where monopolies and anticompetitive behaviors are rampant that Congress simply couldn't give any less of a shit about, whether it's banking, health care, telecom, airline travel, or energy.For years, experts pointed out that U.S. antitrust reform had grown toothless and frail, our competition laws needed updating in the Amazon era, and "are consumers happy?" (the traditional consumer welfare standard) doesn't actually measure all aspects of potential harm in complex markets. You can look to U.S. sectors like telecom to see the work that needed doing. Good news! We were, the Congress, the press, and the punditry insisted, entering a bold new era of "antitrust reform" with "bipartisan support." At least in terms of "big tech." Why only big tech? Who knows! Stop asking questions.Guess what? None of the rhetoric over the last two years amounted to absolutely anything. Yeah, we did see some limited, narrow, chopped up proposals for scattered reform of select tech companies, but as we noted at the time many of those had serious problems or (again) weirdly ignored other business sectors like telecom or banking. Despite all the talk about how Congress was "serious this time" about antitrust reform, it turns out that they weren't, actually, and time is running out to get anything done ahead of the midterms:

You all know about Olive Garden. It's the chain of... oh, let's just play along and call them Italian restaurants that have unlimited breadsticks and names of supposedly Italian offerings that appear to have gotten their names by inputting a bunch of Italian food words into a dilapidated AI program that combines them into a series of unholy dish-names. Sure, there's "Shrimp Scampi", but there is also "Five Cheese Ziti Al Forno" and "Lasagna Fritta". I kid of course, but the chain and its parent company, Darden, have also found their way onto Techdirt in the past by being overly aggressive when it comes to trademark enforcement. For instance, Darden attempted to shut down the site allofgarden.com, which was dedicated to tongue in cheek reviews of the chain's dishes. Darden later apologized for that, blaming some kind of legal bot that crawls for potential trademark infringements on the brand.We'll have to see if something similar happens here, as Darden is now going after a site that jokingly sells NFTs to "own" individual Olive Garden locations and/or simply get NFT tokens for free unlimited breadsticks. The site, nonfungibleolivegardens.com has actually sold out of individual locations, but points to a secondary market. The breadstick tokens are, as are their real life counterparts, free and unlimited. Olive Garden's imagery and name appear all over the site, naturally, and the site's Twitter account confirmed that the site's host, OpenSea, had received a takedown demand (the recipients incorrectly call it a "DMCA" takedown, even though it's about trademarks).

In case you missed it by doing literally anything else, January 9th was National Law Enforcement Appreciation Day! The event was apparently created in response to the public's reaction to a white police officer killing an unarmed black man.

On Friday we got around to posting an article about the very, very strange case of a shell company with almost no presence filing a DMCA 512(h) subpoena to Twitter seeking the identity of the person behind the @CallMeMoneyBags account, that has a history of mocking wealthy private equity bros. The subpoena came from an operation called Bayside Advisory, which registered the copyrights for a few images that MoneyBags had posted to the Twitter account, all typical social media photos, showing a young woman. The MoneyBags account implied that the woman in the photos was the mistress of a billionaire, Brian Sheth.The copyright on the photos was registered after these tweets, by this operation Bayside Advisory, which doesn't seem to have any actual presence, and had never registered any other copyrights until these photos. The registration says that the "photographer" on all of the photos is a woman named Brenda Diaz. What was just pointed out to me, however, is that there is very, very strong evidence that Diaz is not, in fact, the photographer, but rather the woman in the photos. I have now seen other social media accounts from the person and they all involve some variation on the name Brenda Diaz. So that at least raises some questions about the validity of the registration itself.Twitter sought to quash the subpoena noting, accurately, that it seemed quite obviously to be an attempt to intimidate the author of the MoneyBags account. Bayside, for its part, claimed quite explicitly, that it had nothing to do with Sheth (though it has said nothing about Diaz). The court ruling we wrote about on Friday (which came right before New Years), said that Twitter had to cough up the name. Back in the fall, the court had told Twitter to alert the person behind the MoneyBags account that they should file something with the court to help the court work out its fair use analysis.While Twitter says it emailed the info to the email address it had on file it's unclear if the person behind the MoneyBags account ever saw it (the account stopped posting back in October). Either way, MoneyBags did not submit any filing on their behalf, and so the magistrate judge said that since they haven't made the case for why the posting of the photos was fair use, the court won't say that they're fair use, and therefore Twitter must cough up the name.Soon after I posted that story, Twitter asked the court to reconsider. The summary of the filing is quite clear:

The Australian government gave itself encryption-breaking powers at the end of 2018. The law went into effect January 2019. The beneficiaries of the law immediately swept in to reap the rewards. Demands for "exceptional access" required tech companies to break encryption upon request to hand over communications and data sought by law enforcement and security agencies.These efforts began well ahead of any determination as to whether demands for access were lawful or even feasible. In some sense, the requests were lawful simply because a new law had been hurried through to make them lawful. But there were concerns being belatedly raised that some government activity fell outside the broad scope of TOLA, a law whose own name (Telecommunications and Other Legislations Amendment) suggests the government that passed it has no idea what it might encompass.The Australian Federal Police utilized the new powers to partner with the FBI to run a backdoored encrypted chat service marketed exclusively to suspected criminals. Somehow, customers failed to sniff out the ruse, leading to thousands of arrests stemming from millions of intercepted messages. Whether or not this was entirely lawful (even under TOLA) remains to be seen. The thousands of prosecutions should lead to dozens, if not hundreds, of evidence suppression attempts, which will put TOLA's assumed powers to the legal test.Three years after implementation, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) has completed its review of the law. Perhaps unsurprisingly, the Committee has found that the law is lawful. However, it may be a little under-supervised.

Last fall, we had three separate articles about the horrific problems of the SHOP SAFE Act -- one by me, one by Cathy Gellis, and a massive one by Prof. Eric Goldman. The bill is extraordinarily bad, but it's extraordinarily bad in a somewhat sneaky manner, which we'll get to in a moment.Unfortunately, we're hearing buzz from DC that the House is thinking about shoving the SHOP SAFE Act into the massive United States Innovation and Competition Act, also known as the Endless Frontier Act. The Endless Frontier Act/USICA has a bold and valuable goal: having the US invest in innovation, science, and technology infrastructure. This is, actually, really important, and it's an area where the US has led in the past and has not been doing as much leading recently.The general structure of the bill is pretty smart, and really is focused on filling important gaps that can lead to much greater innovation and commercialization of important innovations. But, with such a large bill, some are always going to see opportunities to bolt on their own pet ideas -- both good and bad. And SHOP SAFE seems to be one of the potentially dangerous ideas being considered.Again, I recommend reading Eric Goldman's thorough takedown of the bill, but I wanted to give a brief description of why it's so dangerous, and why it requires understanding a few different things that most people will miss. The bill is framed as a way to protect people against counterfeit goods online. And that sounds like a good thing. But there are a few major problems: first, is that the "threat" of counterfeit goods online is way, way, way overblown. Second, is the method by which this tries to attack that "problem." And third is the wider impact that this law would then have on the internet. It's important to understand all three of these things, so let's break them down bit by bit.The problem is massively exaggerated:First up, while big brand companies like to insist that counterfeiting is a huge problem -- and one that puts people at risk -- there is little evidence to support this. While it's hidden away and rarely talked about, when the Department of Homeland Security put out data on counterfeits, it could find very, very few that actually impacted health and safety. That's not to say the number is zero, but the entire industry loves to insist that because there have been a very small number of dangerous counterfeit products out there, they can state that all counterfeiting is a health and safety issue (it gets even worse when the copyright industries like to lump "counterfeit" together with "copyright infringement" to pretend that little Bobby downloading a song is a health and safety risk).Even outside of the question of "safety," the simple fact is that counterfeiting is not nearly as big a problem as the industry would have you believe. A GAO report noted that the industry has massively exaggerated the amount of counterfeiting that happens. Even then, in the situations where it does happen, there's a question of the supposed "harm" to the original producer. The general argument is that counterfeiting harms the originator's brand by (1) tricking consumers into purchasing a non-authentic version when they would have spent money on the real version and (2) then delivering an inferior knock-off product that harms the brand, as the buyer is less-than-impressed by the quality of the knockoff.Again, however, actual evidence suggests that this narrative is rarely true. Instead, multiple studies have shown that buyers of counterfeit goods buy them as an aspirational purchase. That is, they know that they're buying knockoffs, but they buy it because of that fact. They can't afford the authentic version, so couldn't buy it at that moment (so no loss), and are buying it because they still want to connect with the brand. Indeed, that study showed that many people who buy knockoffs later buy the real thing when they can afford it. In other words, hurting the counterfeit market could actually harm the authentic market as well, as it is often a "stepping stone" purchase, allowing users to connect with the brand before they can purchase the real thing.So, already, we've seen that the underlying "necessity" for a bill to attack the sales of knockoffs online is thin, at best.The method by which SHOP SAFE works will do tremendous damage to online marketplaces and innovation:To understand this one requires a bit of background knowledge. As you may know, Section 230 has an intellectual property exemption (section (e)(2)), which was put there at the demand of Hollywood, so that it could put in place its own, much more stringent, DMCA takedown process. Indeed, in 1996, when Section 230 became law, Hollywood was in the midst of a bit of policy laundering. The Clinton's IP czar, Bruce Lehman, had a plan all along to force the terrible DMCA regime on the US. In the summer of 1995, he published a whitepaper with the outline of a DMCA liability regime, encouraging Congress to pass a law. Congress did introduce a law, but failed to pass it. He later flat out admit that he did an "end run around Congress" by going to Geneva in early 1996 to get WIPO to put together a treaty that more or less required all signatories to implement a DMCA-like structure. That done, he then went back to Congress, and told them it was now obligated to pass the DMCA to comply with "international obligations."So that process was happening just as the CDA was being crafted, and someone realized that 230 would undermine Lehman's DMCA plans if it applied to copyright. So (e)(2) was added to exempt "intellectual property." But no one really considered how that might impact other types of intellectual property, such as trademark. As we've discussed, this has lead to much mischief from companies (and mainly law firms) which look to hold third party marketplaces liable for counterfeit or trademark infringing goods on their sites. Sometimes, they've even sought to go after retailers for people reselling legitimate items they've bought, because the companies think they should be able to control every possible sale, including resales.The biggest, and most important, case regarding this was one that the jeweler Tiffany filed against eBay in 2004, claiming that because users on eBay sold some infringing items, eBay should be held liable. Again, without Section 230, eBay couldn't just get the case immediately dismissed. Instead, it went on for over six years before the judicial system established a precedent protecting online marketplaces. It's not as strong as Section 230, but it more or less says that because eBay tries to remove infringing products, and has an active program in which it works with brands to find and remove infringing/counterfeit works, you can't hold the company liable for missing some stuff. That ruling has been in place for over a decade now, and has served the internet well. It's kind of like a Section 230 protection that can apply to marketplaces with regards to trademark (though it's not as clean or clear as 230).But the big product companies have always hated it, because they want to control everything. They want to force all unauthorized sales (including resales of authentic products) off of these marketplaces. And, if they can't do that, they want the giant marketplaces -- the Amazons and eBays of the world -- to just pay them many, many millions of dollars.So that brings us back around to the problems of SHOP SAFE. It flat out overturns the Tiffany/eBay decision, and says that unlike that precedent, online marketplaces should be considered de facto liable. There is a long, extremely onerous, and nearly impossible list of things that you need to do to get out of that default state of being liable for any infringing product on your site. Basically, the default state for all online marketplaces (and this is defined so broadly that it will sweep up tons of sites you wouldn't think of as "marketplaces"), will be that they are "contributory" infringers.This will wreak all sorts of havoc. First off, it will massively limit where people can buy and sell things online. Over the pandemic, I've become active in buying and selling used books via a couple of Facebook groups and independent forums and news groups, that focus on the buying and selling of a niche category of books. It's been great for me, because most of the books bought and sold through these groups are unfindable anywhere else. Under this bill, it seems like those groups would all need to shut down -- or face absolutely crippling liability and risk.Basically, the only "marketplaces" that could possibly survive would be the very biggest -- the eBays and Amazons of the world. And, even then, in order to avoid liability, eBay and Amazon would both significantly change how those forums operate, and they'd still face crippling liability because of the structure of the bill. I'll quote Eric Goldman's summary here because it's so important:

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Last fall we wrote about how Chinese officials were looking to remove the "Pillar of Shame," a sculpture by artist Jens Galschiøt that commemorates China's massacre of pro-democracy demonstrators at Tiananmen Square in 1989. The sculpture was erected at the University of Hong Kong in 1997, and now that China has been wiping out every last bit of freedom in Hong Kong, the statue has been targeted as well. In our post last fall, we noted that (1) Galschiøt was threatening legal action if the statue is damaged, and (2) activists were making 3D scans of the sculpture so that it can be replicated.Of course, while Galschiøt can (without much leverage) threaten legal action against China for removing the statue, some realized that the unfortunate state of copyright law today means he might also threaten legal action against those making replicas and copies from those 3D images. Thankfully, Galschiøt himself recognizes how problematic that is, and after receiving a bunch of requests has signed official paperwork relinquishing his copyright on the Pillar of Shame, thus putting it into the public domain:

For more than a decade, cable TV executives brushed aside the threat of cable TV "cord cutting" as either a nonexistent threat or a temporary phenomenon. Of course neither wound up being true, and consumer defections from the bloated, pricey traditional cable TV bundle continue to set records during the COVID crisis. Traditional cable TV providers saw a 6.2% drop in subscribers in the third quarter of 2021, an all time record. It's particularly bad for traditional satellite TV providers, who saw a 12% dip in overall users during the same quarter.But it's not just traditional cable that's feeling the pinch. Growth in new streaming alternatives is also slowing down:

This week, both our winners on the insightful side come in response to our post about Eric Clapton pretending to regret his lawsuit against a random woman in Germany who listed a bootleg CD on eBay. As it happens, the first place winner is a reply to the second place winner, so we're going to present them in reverse order. So, in second place, it's TFG with a response to someone who claimed this wasn't about copyright, but about some cryptic other thing:

Five Years AgoThis week in 2017, we were still two years away from any new works actually entering the public domain in the US (be sure to check out our public domain game jam now that this situation has changed!) so we took our usual look at the works that should have. Meanwhile, the Trump presidency was looming and we discussed how he demonstrated that much of the political system is based on traditions and custom, not rules. Malcolm Gladwell published a ridiculous attack on Edward Snowden for not being a "real" whistleblower, even as oversight of the Defense Department found more evidence of retaliation against those who use the "proper channels". And while we looked at the worrying comments from a potential incoming FCC boss, we also watched as AT&T was quick to start backing off of the promises it made to get its merger with Time Warner approved.Ten Years AgoThis week in 2012, some bad reporting led many to falsely believe that EA, Sony, and Nintendo had withdrawn support for SOPA (they had not, and EA was quick to insist it had no position either way). And indeed this was a big week for SOPA in the video game industry: some companies were speaking out against the ESA's presumed support, which soon became official, explicit support, which in turn led Capcom to get on board then quickly try to tapdance out of its position following the backlash. At the same time, the PC Gaming Alliance insisted it was "cautiously optimistic" about the bill. Meanwhile, we took a look at how SOPA would be a disaster for scientific publishing (and for everyone) while MPAA boss Chris Dodd was insisting that copyright has never created any free speech issues and Rep. Lamar Smith was sticking to a strategy of lying about the bill and dismissing opposition.Fifteen Years AgoThis week in 2007, ten years before AT&T's failure to live up to its Time Warner merger promises, it was making an earlier set of promises about its merger with BellSouth — bbut the FCC was effectively admitting that they were meaningless and non-binding, and the company was touting its bundle-heavy plans for post-merger "innovation". Many companies were still trying to hop on the social media bandwagon and emulate MySpace, with Disney's attempt looking far too limited and, uh, Toyota's attempt looking just plain silly. We looked at an example of copyright being used to stifle free speech (that thing that, five years later during the SOPA fight, Chris Dodd would insist had never happened). And we watched the first day of Congress for the year, which turned out to be a mixed bag when it came to internet issues.

We've talked a great deal about Major League Baseball here at Techdirt. Notably, for a long time those discussions have positive in nature, whether it was MLB's interesting pivots once COVID-19 went global or the expansion of its excellent streaming services. Now, while the league has also had issues playing IP enforcer in the past, or the more recent self-own the league conducted in response to its players lockout, the fact is that commissioner Rob Manfred has generally been a fresh voice of modernity and technological progress for the league.That makes it all the more perplexing that Manfred is currently being introduced to the concept of the Streisand Effect. At issue is the ousting of famed MLB reporter Ken Rosenthal. Rosenthal is, perhaps, one of the most respected baseball reporters in the industry, and was apparently fired from the MLB Network as a result of a scathing piece he did on Manfred's handling of baseball's 2020 season as it relates to working something out with the Players' Union for handling COVID protocols. Rosenthal was quietly suspended from MLBN airtime for three months over that article. Now, he's out entirely.

Windsor, Virigina was the recipient of unflattering nationwide news coverage due to two police officers deciding a black driver -- and Army medic -- needed to be brutalized for seeking a well-lit area to pull over. The whole thing was caught on the officers' body cameras, including their threats to make Lieutenant Caron Nazario "ride the lightning" (a reference to the officer's Taser) as well as the officer's affirmation that Nazario was right to be scared to exit his vehicle.A low-speed, non-lengthy, non-chase of one hundred seconds led to several minutes of violence, threats of further violence, and violated rights. The officers shouted conflicting orders -- to both keep hands where they could be seen as well as to exit the vehicle, something impossible for Nazario to comply with considering he still had his seatbelt on. The officers pointed their guns at him the entire time, pausing only to pepper spray him in the eyes. Nazario sued. That lawsuit is still ongoing. One of the officers -- Daniel Crocker -- is also facing criminal charges.But there's a postscript to this case that involves another lawsuit involving the Windsor Police Department. The state's Attorney General, Mark Herring, is suing the Town of Windsor over biased policing engaged in by PD officers.

Senator Thom Tillis is chock full of bad ideas about copyrights and patents -- mostly focused on making things worse for the public by expanding the monopoly powers granted to patent and copyright holders. So I guess it comes as little surprise that he held a secret meeting that appears to have only been attended by copyright maximalists to talk about trying to merge the Copyright Office into the US Patent & Trademark Office.

Changes in law, court decisions, and transparency efforts have resulted in the public release of names of officers prosecutors consider too unreliable to ask to testify in court. Officers with histories of misconduct or perjury are placed on "do not call" lists by prosecutors who are supposed to hand this information over to criminal defendants.The lists -- known by names referencing precedential decisions (Giglio, Brady) -- have historically been closely guarded by prosecutors. But that's no longer considered acceptable behavior in many parts of the country. Precedent creates an obligation that prosecutors are having a tougher time ignoring as police reform efforts continue to gain traction across the nation.But are these records public records? Many prosecutors and police unions have argued they aren't. While they're ok with begrudgingly handing these over to criminal defendants, they appear unwilling to let the rest of the uncharged public know which officers are considered too problematic to be counted on in court.Fortunately, the public is scoring a few wins in court over this issue, represented (so to speak) by journalists and transparency activists who seek these records with the intent of making them publicly available. The Maryland Court of Special Appeals has just handed one such win to the Baltimore Action Legal Team (BALT) which requested copies of the Office for the State's Attorney (SAO) "liar list" of Baltimore cops found to be too untrustworthy to be called on in court. (h/t FourthAmendment.com)This loss for Baltimore PD opacity started as a temporary win for the department's bad cops. From the decision [PDF]: